Sacramento Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(2) Defendants' Nurses Notes were charted inaccurately or the nurse completely failed to perform any charting whatsoever (both serious breaches of the applicable regulations since the absence of any charting is absolute and unequivocal evidence of neglect) (FAC, para. 29);

(3) Defendants' failed to order a speech therapist or speech language pathologist evaluation (an intentional violation of the regulations) for Abbey on or about April 8, 2008, when they knew that she was not swallowing and had lost considerable weight (inability to swallow and substantial weight loss are both changes of condition, both of which required notification to Abbey's family and physician so that these issues could be addressed) (FAC, para. 31); also, a nursing facility must ensure that a resident receives prescribed therapies, including physical therapy, occupational therapy, and speech therapy. 42 CFR § 483.45; For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(4) Abbey's inability to swallow and/or her delayed swallowing should have been critically important warning signs of dehydration, which Defendants recklessly ignored causing her swallowing problems to worsen (FAC, para. 32);

Continue reading "Neglect By Sacramento Nurses And Staff Result In Actionable Elder Abuse, Part 7 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

The Elder Abuse Cause of Action in Plaintiffs' FAC is Well Pled

In their Demurrer, Defendants haphazardly assert that Plaintiffs claim for elder abuse simply fails to plead facts sufficient to constitute a viable claim. However, in asserting this baseless accusation, Defendants ignore the 30-plus paragraphs of detailed factual allegations which make up the factual basis for Plaintiffs' elder abuse cause of action. In fact, Plaintiffs' FAC provides Defendants with more detail than is required by the code. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The issue here is whether or not Plaintiffs have provided Defendants with sufficient facts such that Defendants are apprised of the basis upon which Plaintiff are seeking recovery. Clearly, Plaintiffs have provided Defendants with more than a sufficient factual basis of the claims against them, including a clear picture of the multiple acts and omissions by Defendants constituting elder abuse. Specifically, Plaintiffs have alleged copious facts in their FAC that clearly elucidate specifically how Defendants' recklessly neglected Abbey and how they caused her senseless death, including but not limited to all of the following:

Continue reading "Numerous Elder Abuse Code Violations Cause Sacramento Patient's Death, Part 6 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

"Recklessness" Under the Elder Abuse Act

Once neglect is satisfactorily pled, the next question become whether Plaintiff has pled factual allegations that support a claim that the alleged neglect amounted to recklessness (i.e., a conscious disregard of rights or safety), oppression, fraud, or malice, which would then entitle Plaintiffs to the heightened remedies available under the Elder Abuse Act. Defendants claim that Plaintiffs have not pled sufficient facts showing intentional conduct. (Demurrer, 6:24 - 26.) However, a showing of intentional conduct is not required to state a claim for elder abuse. The term recklessness, which can be a species or quality of negligence, is not an intentional tort. California Elder Law Litigation: An Advocate's Guide, § 2.44. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Delaney v Baker (1999) 20 Cal.4th 23, 31, the California Supreme Court explained that recklessness under the Elder Abuse Act refers to a subjective state of culpability greater than simple negligence, which has been described as deliberate disregard of the high degree of probability that an injury will occur [citing BAJI 12.77 (defining recklessness in the context of an intentional infliction of emotional distress action)]. (See California Elder Law Litigation: An Advocate's Guide, § 2.44.) For purposes of the Elder Abuse Act, California Civil Jury Instruction ( CACI ) 3113 has adopted that standard, stating that a defendant acts with recklessness if he or she knew it was highly probable that [his or her] conduct would cause harm and [he or she] knowingly disregarded this risk, and that recklessness is more than just the failure to use reasonable care. Id.

Continue reading "Sacramento Woman Subject To Reckless Conduct At Nursing Facility, Part 5 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Under the Elder Abuse Act, "Neglect" Constitutes Abuse of an Elder

The purpose Welfare and Institutions Code Section 15610.07 (which is part of the broader legislation commonly referred to as "the Elder Abuse Act” aka “EADACPA") is essentially to protect the elderly, a particularly vulnerable portion of our society, from gross mistreatment in the form of abuse and custodial neglect. Delaney v. Baker (1999) 20 Cal.4th 23, 33. The Elder Abuse Act provides that "[a]buse of an elder" means either: (a) Physical abuse, neglect, ... abandonment, ... or other treatment with resulting physical harm or pain or mental suffering; or (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

"Neglect" is Broadly Defined in the Elder Abuse Act

The statutory definition of neglect is set forth in Section 15610.57(b) of the Elder Abuse Act, which provides that [n]eglect includes, but is not limited to, all the following: (1) failure to assist in personal hygiene or in the provision of food, clothing, or shelter; (2) failure to provide medical care for physical and mental health needs; failure to protect from health and safety hazards; or (3) failure to prevent malnutrition or dehydration, (Emphasis added.)

Continue reading "Elder Abuse At Sacramento Nursing Home Results In Death, Part 4 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

The pleading requirements for elder abuse actions was addressed in the leading treatise on elder abuse, California Elder Law Litigation: An Advocate's Guide, § 6.40:
[t]o survive a challenge by a defendant, the plaintiff's complaint must be pleaded with sufficient clarity to provide the defendant with clear notice of the plaintiff's claim. The facts of the defendant's conduct as pleaded must meet the requirements in CC § 3294.

To determine whether the facts as pleaded in an elder abuse complaint describing the defendant's conduct satisfy the minimum statutory requirements of malice, oppression, or fraud, a Court must read the challenged allegations within the context of other facts alleged in the complaint. Even when a complaint pleads ultimate facts or conclusions of law, if it also contains specific allegations of acts attributed to the defendant showing the requisite evil motive, the complaint may survive a demurrer or motion to strike. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Accordingly, what is required by California law for a civil complaint is a statement of the facts pled with sufficient clarity so as to provide Defendant with clear notice of Plaintiffs' elder abuse/neglect cause of action, in ordinary and concise language. Plaintiffs' FAC clearly satisfies the above-mentioned requirements.

Continue reading "Sacramento Skilled Nursing Facility Concealed Fraudulent Patient Care, Part 3 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

DISCUSSION

The Legal Standard on Demurrer

A demurrer tests the sufficiency of the pleadings, the allegations of which must be accepted as true by the court for purposes of review. Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1231. [I]t is error for a court to sustain a demurrer where the allegations adequately state a cause of action under any legal theory. (Ibid.) The complaint in a civil action serves a variety of purposes, including to frame and limit the issues and to apprise the defendant of the basis upon which the plaintiff is seeking recovery. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In ruling on a demurrer, the trial court is required to construe the complaint liberally with a view to substantial justice between the parties. Code of Civil Procedure § 452; Cameron v. Wernick (1967) 251 Cal.App.2d 890. A demurrer will not be sustained unless the complaint, liberally construed, fails to state a claim on any theory. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.

The Legal Standard for Pleadings in Elder Abuse/Neglect Cases

The applicable code section pertaining to the pleading requirements for civil actions is Section 425.10, which provides:

Continue reading "Sacramento Woman Dies In Negligent Local Nursing Facility, Part 2 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Plaintiffs' Abbey White, Olivia Lee, and Owen White's Opposition to Universal Care of Sacramento and Aging Care’s Demurrer to Plaintiffs' First Amended Complaint

Plaintiffs Abbey White ("Decedent" or "Abbey"), by and through her successor-in-interest Olivia Lee, Decedent's daughter Olivia Lee, and Decedent's son Owen White (collectively "Plaintiffs"), respectfully submit the following opposition to defendants Universal Care and Aging Care’s (collectively "Defendants") Demurrer to Plaintiffs' First Amended Complaint ("FAC").

INTRODUCTION

Defendants' contend in their demurrer that the first four causes of action of Plaintiffs' FAC [i.e., Elder Abuse; Violation of Patients Bill of Rights; Concealment; and Negligent Infliction of Emotional Distress ("NIED")] fail to state sufficient facts and/or is otherwise uncertain. However, Defendants' contention is entirely without merit as the FAC contains some 27 paragraphs of detailed factual allegations which clearly apprise Defendants of the claims against them, as required by the Code of Civil Procedure. In fact, the factual allegations contained in the FAC go much further than simply appraising defendants of the claims against them, they actually set forth in detail the multiple acts and omissions which comprise the reckless neglect. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In fact, in paragraphs 24 through 50, Plaintiffs alleged, in considerable detail, the key factual allegations that clearly demonstrate that Defendants' reckless neglect of Abbey resulted in her senseless death.

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Continue reading "Sacramento Family Sues Nursing Facility For Mother's Death, Part 1 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

In Mock v. Mich. Millers Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 328, an insurance bad faith case, the court said the following with regard to punitive damages:

Even before the 1987 amendments, the courts articulated a standard for the proof of malice where, as here, no intent to harm is claimed. Such malice "implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others." In Dean Prosser's words: "Where the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action punitive or exemplary damages .... Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton."

CACI 3540 defines despicable conduct as "... conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people." Again, this also has to be shown by clear and convincing evidence.

For plaintiff to prevail there must be evidence that the defendants' employees, acted with malice as defined by Civil Code §3294, and that said malice was ratified by a managing agent, or that the managing agents themselves acted with malice. Further, plaintiff's must have evidence that rises to the level of clear and convincing evidence. For corporate defendants like Universal and MC, the evidence must show that a managing agent of the defendant is culpable. In White v. Ultramar (1999) 21 Cal.4th 563, 577 the Supreme Court said:

Continue reading "Sacramento Nurses And Doctors Sued For Elder Abuse, Part 11 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

PUNITIVE DAMAGES

Civil Code §3294 is the statutory authority for a claim for punitive damages. This statute states:

(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

Plaintiff alleges "Defendants" acted maliciously toward her with specific intent to cause injury, and as such, their conduct was despicable, and carried out with a willful and conscious disregard of the rights of plaintiff. She also alleges "Defendants" acted in a way which was fraudulent malicious and/or oppressive. It is unclear if plaintiff alleges the employees of defendants acted with malice, or if the corporate managing agents themselves did. (See Part 11 of 11.)

Continue reading "Medical Malpractice By Sacramento Physicians Leads To Elder Abuse Suit, Part 10 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

Plaintiff will not be able to state a prima facie case of neglect by clear and convincing evidence. With regard to plaintiff's pressure sore, it started out as a friction or shear injury that occurred during a transfer to or from her bed. Plaintiff's expert will opine it occurred when plaintiff was getting occupational therapy. There can be no possible argument to equate this injury with the level of conduct necessary to entitle plaintiff to punitive damages. Such injuries can and do happen in hospitals, particularly with obese, totally dependant patients such as plaintiff.

The expert testimony at trial, and opinions of the treating physicians at the time, will that the worsening of the initial injury was a function of plaintiff's underlying medical condition. Plaintiff's experts have conceded this. Plaintiff will not be able to show, by clear and convincing evidence, that any of the alleged negligence that occurred after the initial injury caused further harm.

Similarly, the events of October 10, 2006, cannot equate with elder abuse. Plaintiff's claim of inadequate monitoring cannot rise to the level of reckless or conscious disregard of plaintiff's safety; prospectively there was no way any of the staff could have known how long it would take for the transport department to transport plaintiff back to her room. Further, the nurse who was caring for plaintiff exercised his judgment in addressing her blood pressure; he did not neglect her. Plaintiff's liability theories are based upon a retrospective analysis together with assumptions unsupported by the evidence. The argument that the should have called a physician, or that he should have taken other measures to address plaintiff's blood pressure cannot satisfy what is required to establish a prima facie case of elder abuse by clear and convincing evidence.

Continue reading "Sacramento Family Seeks Punitive Damages For Elder Abuse, Part 9 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

In Delaney the court went on to explain the difference between what could constitute professional negligence, as opposed to the type of neglect required to establish elder abuse, as follows:

This difference in focus can be clarified by considering the differing types of conduct with which section 15657 and MICRA are concerned. As discussed, section 15657 concerns "neglect," "physical abuse," and "fiduciary abuse." Former section 15610.57 defines neglect as the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care which a reasonable person in a like position would exercise. Neglect includes, but is not limited to, all of the following: (a) Failure to assist in personal hygiene, or in the provision of food, clothing or shelter. (b) Failure to provide medical care for physical and mental health needs. (c) Failure to protect from health and safety hazards. (d) Failure to prevent malnutrition. Thus, neglect within the meaning of former section 15610.57 appears to cover an area of misconduct distinct from "professional negligence."

In section 15657.2: "Neglect," as defined in former section 15610.57 and used in section 15657, does not refer to the performance of medical services in a manner inferior to "the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing" (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal. 4th at p. 998), but rather to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. It is instructive that the statutory definition quoted above gives as an example of neglect not negligence in the undertaking of medical services but the more fundamental [f]ailure to provide medical care for physical and mental health needs. (20 Cal.4th, at p. 34.)

Continue reading "Negligent Care By Sacramento Results In Elder Abuse, Part 8 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

Neglect

Welfare & Institutions Code § 15610.57 defines the term neglect in the context of elder abuse as follows:

(a) Neglect means either of the following:
(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.
(b) Neglect includes, but is not limited to, all of the following:
(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.
(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

In Delaney v. Baker (1999) 20 Cal.4th 23, the Supreme Court addressed the difference between professional negligence and elder abuse in the context of neglect. The issue in Delaney v. Baker was whether the heightened remedies of the Elder Abuse Act could be obtained in an action against a health care provider. While the court held elder abuse could be alleged against a health care provider, the court also held the statutory framework of Welfare & Institutions Code § 15600 should not apply to situations involving mere professional negligence; the Supreme Court held something more egregious is necessary:

Continue reading "Sacramento Family Sues Local Hospital For Elder Abuse, Part 7 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

Elder Abuse Remedies

The remedies available for elder abuse claims are listed in Welfare & Institutions Code § 15657, which states:

Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:

(a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term "costs" includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.

As set forth in the statute, plaintiff's burden of proof in seeking heightened remedies under the Elder Abuse Act is that of clear and convincing evidence. This burden of proof applies to liability, and causation. In Perlin v. Fountain View Management (2008) 163 Cal.App.4th 657, 664 the court said:

Continue reading "Negligence By Sacramento Physicians In Local Hospital, Part 6 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

CAUSATION MUST BE PROVEN TO A REASONABLE MEDICAL PROBABILITY

One of the essential elements of plaintiff's claim is causation. Assuming She is able to meet his burden of proving there was a breach of the standard of care, or elder abuse, she must then show any such breach was a cause of his injuries. As the court said in Budd v. Nixen (1971) 6 Cal.3d 195,200:

If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm--not yet realized--does not suffice to create a cause of action for negligence.

In the context of a personal injury action, causation must be proven within a reasonable medical probability. The reason for this was explained by the court in Brown v. Ortho Pharmaceutical Corp. (1985) 163 C.A.3d 396, 402-403:

The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [citations omitted] That there is a distinction between a reasonable medical "probability" and a medical "possibility" needs little discussion. There can be many possible "causes," indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.

Continue reading "Medical Malpractice And Elder Abuse By Sacramento Doctors, Part 5 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

The dialysis concluded at 5:42. Mr. Reed initially got a BP of 90/21, but checked it again and it was 90/37. A total of 1.9 liters of fluid had been removed during dialysis. While plaintiff's dialysis was completed at 5:42, she was not transported back to her room on the fifth floor until after 7:00 p.m. During the wait, however, she remained on a monitored bed in the dialysis unit with the blood pressure and heart rate monitors attached. Both of these monitors have alarms that will go off if the values drop below acceptable limits. The undisputed evidence is that the monitor alarms did not go off while plaintiff was awaiting transport.

According to the nursing notes, plaintiff returned to her room at 7:20. Her nurse was Jean King, also an ACES replacement nurse. Upon arrival her BP was 121/44, and her HR was 105. She also had a respiratory rate of 28. The nurse assigned to plaintiff was just coming on shift. She was concerned about plaintiff's appearance, and asked the charge nurse to evaluate her. Supplemental oxygen was given, and over the next 30 minutes her vitals signs were monitored.

Her condition started to worsen, and then she suddenly experienced a respiratory arrest. A code blue was called, and by the time the responding physician arrived she had no pulse or spontaneous respirations. She was receiving CPR, and being ventilated by the nurses. As he assessed her, however, she suddenly had a spontaneous return of her heart rate. His evaluation of her airway revealed the presence of gastric contents, suggesting an aspiration.

Continue reading "Wrongful Death At Sacramento Hospital, Part 4 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

Evening of October 10, 2006

October 10, 2006 was the first day of a strike at the two MC hospitals. As required under the Labor Code, MC was given 10 days notice of the strike. In anticipation of the strike a contract was entered into with Arizona Clinical Employment Staffing, a company that supplies traveling nurses. ACES is owned and operated by nurses, and over the next 10 days ACES and MC worked closely to come up with a list of suitable replacement workers. Over 500 replacement workers were hired to cover Medical Center in Sacramento.

One of the nurse hired through ACES was Jim Reed. The evidence at trial will show that Mr. Reed is an experienced ICU and dialysis nurse who works regularly at a large teaching hospital. On October 10, he was one of two replacement nurses assigned to the dialysis unit. Plaintiff was scheduled for dialysis that day, and Reed was the nurse who cared for her in the dialysis unit.

According to the records plaintiff started dialysis at 2:47 p.m.. The initial set of vital signs were BP 107/58 and HR 89. The protocol in the unit was to document vitals every 30 minutes. The next set, at 3:17, was BP 84/38 and HR 91. According to the chart, Mr. Reed immediately turned off the ultra-filtration function of the dialysis machine. Ultra-filtration refers to the process of removing fluid during dialysis. It is very common for patient's to drop their blood pressure during dialysis, especially if the orders are to reduce fluid. When fluid is removed from the circulation there is necessarily a drop in the blood volume, and a corresponding drop in blood pressure.

Continue reading "Elderly Patient Dies At Sacramento Hospital, Part 3 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

The Pressure Sore

On August 17, 2006, the plaintiff was evaluated by Kim White R.N., the MC wound care nurse. Ms. White noted that plaintiff developed a skin breakdown at the area of her coccyx. It was measured as 4 x 3 cms, and the skin was fragile and discolored. Ms. White thought the wound was due to shearing; i.e., from friction while being moved.

Over the next week, the nursing staff continued to turn plaintiff every two hours, and followed the care ordered by the physician (as recommended by Ms. White). However, because of her poor underlying condition, and multiple co-morbidities, the plaintiff's wound became a pressure sore. By August 23, 2006, the wound had progressed to a Stage III, and by this point was 8 cm. x 10 cm. large.

While plaintiff was not going to go to acute rehabilitation, the hope was that she could be discharged to a skilled nursing facility. However, for her to be able to do so she needed to be able to tolerate out-patient dialysis. For her to be able to do this she needed to be able to sit for three hours at a time. This was something she was never able to do.

In terms of plaintiff's neurologic status, it remained guarded. On September 27, 2006, she had a swallowing evaluation. She was found to be at high risk for aspiration, and it was recommended that she not be given anything orally.

Continue reading "Sacramento Hospital Patient Sues For Elder Abuse, Part 2 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)

INTRODUCTION

This is an action for professional negligence, and ostensibly, for elder abuse, with a claim for punitive damages. The plaintiff, Allison Brown, has brought this action through her daughter and guardian ad litem, Nancy Smith. The defendants are Medical Center, Inc. (hereinafter "MC") and Universal Health. This action arises from care and treatment provided to Ms. Brown at MC, where Ms. Brown is still a patient.

This case involves two allegations: negligent care resulting in the development of a pressure sore, and an alleged failure to monitor on October 10, 2006, leading to a respiratory arrest.

FACTS

On July 25, 2006, plaintiff Allison Brown was brought by ambulance to the ER at the Campus of MC. She had been undergoing dialysis when her family noticed that she was unable to speak, and it was noted that she had right-sided deficits. She arrived at 1645 that day, and at 1700 was being evaluated by the ER physician. She was alert and intermittently verbal, and had an abnormal neurologic examination, including an inability to move her right arm or either leg. A stat CT was ordered. It revealed the presence of an old right frontal lobe infarct (i.e. an old stroke). She was also determined to have had a new stroke. The plan was to admit her to the hospital and to provide supportive care and further evaluate her condition.

On July 26, 2006 the initial nursing assessment was done of the plaintiff. At the time of her admission she was noted to have redness on her right buttock. She was also non-verbal by this point, and had a left facial droop. She was also seen by neurologist Joan Green M.D. on July 26. Dr. Green noted the plaintiff's ability to speak had deteriorated since the day before, and when she saw plaintiff she was nonresponsive, and did not follow commands. She suspected a left hemisphere stroke, and recommend a MRI and carotid ultrasound.

Continue reading "Sacramento Elder Abuse Leads To Lawsuit, Part 1 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

PLAINTIFFS' THIRTEENTH CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES STATES A CLAIM.

The Unfair Practices Act, Business & Professions Code section 17200, prohibits any unlawful business practice. (B&P Code Section 17200). By prohibiting any unlawful business practice, Section 172000 borrows' violations of other laws and treats them as unlawful practices that the unfair practices act makes independently actionable. State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093,1103 (single quotes in the original). The Unfair Practices Act's coverage is sweeping, embracing anything that can properly be called a business practice and that at the same time is forbidden by law. Cel-Tech Communications Inc. v. Los Angles Cellular Telephone Company (1999) 20 Cal.4th 163, 180.

In People v. Casa Blanca Convalescent Home (1984) 159 Cal.App.3d 509,530, the court held that a corporation's practice of understaffing its nursing homes was an unfair business practice within Section 17200. Here, plaintiffs, like the plaintiffs in Casa Blanca Convalescent Home, by pleading valid causes of action for violation of the Elder Abuse and Dependent Adult Civil Protection Act, and alleging that defendants' conduct is part of a general business practice, stated a claim for Unfair Business Practices also raised a triable issue of fact as to unfair business practices.

PLAINTIFFS REQUEST LEAVE TO AMEND WITH RESPECT TO THE FOURTEENTH CAUSES OF ACTION FOR BREACH OF CONTRACT

Continue reading "Sacramento Residential Nursing Home Sued For Reckless Abuse, Part 11 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

PLAINTIFFS' EIGHTH CAUSE OF ACTION FOR ELDER ABUSE WITH FRAUD STATES A CLAIM.

As discussed above, Welfare & Institutions Code Section 15657 provides for enhanced remedies under the Elder Abuse Act, where it is proven by clear and convincing evidence that a defendant ... is liable for ... or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse... The Eighth Cause of Action alleges that defendants committed neglect with fraud, based on the fraudulent misrepresentations that defendants made to induce the Brown family to place Mr. Brown at Universal Care.

The Eighth Cause of Action is pled as an alternate to the First Cause of Action for Elder Abuse -Wilful or Reckless Neglect. Defendants contend that plaintiffs cannot plead in the alternative, but they are wrong. It is well established that "a party may plead in the alternative and may make inconsistent allegations." Adams v. Paul (1995) 11 Cal.4th 583, 593, 594, quoted in Third Eye Blind v. Near North Entertainment Ins. (2005) 127 Cal.App.4th 1311,1323. It is perfectly acceptable to file separate or duplicative causes of action arising from the same set of facts. Eichler Homes of San Mateo, Inc. v. Superior Court (1961) 55 Cal.2d 845, 916.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the residentail elder care facilities in the Sacramento area. (See Part 11 of 11.)

Continue reading "Elder Abuse Act Violations By Sacramento Facility, Part 10 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

Defendants have a laundry list of objections to the fraud cause of action, but they cite few specific authorities. Here, plaintiffs have alleged specific misrepresentations relating to the services defendants would provide to Steven Brown, made to Christina Brown by defendants' agents in order to induce the Brown family to have Steven live at Universal Care. Defendants are liable for false misrepresentations made to a person acting as an agent of the plaintiff. Mirkin v. Wasserman (1993) 5 Cal.4th 1082,1097.

Mr. Brown had dementia, and the complaint alleges facts showing that Christina was clearly acting as his agents when they spoke with Universal Care about whether that facility would be suitable for him. Defendants' misrepresentations about the kind and level of care that they would provide for Mr. Brown are also actionable. Cf. Harazim v. Lynam (1968) 267 Cal.App.2d 127,131 (defendants' misrepresentations about the future profits that will be made on a specifically described investment plan are actionable if the plan is not as advertised). The first amended complaint specifically alleges that the Brown family relied on the misrepresentations in having Steven become a resident at Universal Care.

The complaint alleges that Steven sustained damages as a result of the fraud (financial damages, in terms of monies paid, and emotional distress and physical pain and suffering, as discussed above in connection with elder abuse).

Continue reading "Reckless Abuse By Sacramento Nursing Home Staff, Part 9 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

PLAINTIFFS' SIXTH CAUSE OF ACTION FOR NEGLIGENT HIRING, SUPERVISION, AND RETENTION OF REBECCA COCKRILL STATES A CLAIM.

Liability for negligent hiring, training, retention, or supervision is based on the principle that an enterprise should bear the loss for its negligence in hiring, training, or retaining unsuitable employees. Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340. See also Restatement of Agency (2nd) Section 213 (employer liable to third parties for injuries caused by inadequate training and supervision of its employees).

Here, with respect to Steven Brown, the first amended complaint alleges that defendants owed him a duty of care in connection with the managers they hired and retained to run the facility, based on their special relationship with him. Mr. Brown paid defendants more than $41,000 to provide care for him, which defendants did not provide, by reason of Ms. Cockrill's mismanagement of the Universal Care facility. This is an economic loss sufficient to show damages to Mr. Brown on this cause of action.

Plaintiffs Christina and David Brown concede that they as individuals, as opposed to successors in interest, have not stated a cause of action for negligent hiring.

Continue reading "Sacramento Man's Family Sues For Elder Care Abuse, Part 8 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

PLAINTIFFS' FOURTH CAUSE OF ACTION STATES CLAIMS FOR RECKLESS OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS TO STEVEN BROWN

The elements of the tort are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the Claimant's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. KOVR-TV, Inc. v. Superior Court (1995) 31 Cal. App.4th 1023, 1028, 37 Cal.Rptr.2d 431.

The tort does not require an allegation of an intention to cause harm. A reckless disregard of the probability of causing harm is adequate. [I]t is not essential to liability that a trier of fact find a malicious or evil purpose. It is enough that defendant "devoted little or no thought" to the probable consequences of his conduct. KOVR-TV, Inc., supra, 31 Cal.App.4th at 1031-1032.

Whether conduct is outrageous is a question of fact for which the law does not provide a bright line rigidly separating that which is actionable from that which is not. Indeed, it generally hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser's values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical. Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.

Continue reading "Fraud By Sacramento Nursing Facility Leads To Elder Abuse Lawsuit, Part 7 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

Here, Dani O’Brien made complaints prior to April 2006 regarding medication errors affecting her mother's medications. This put defendants on notice of problems with the administration of medication. Yet, defendants did not correct the medication problems, which persisted with errors with Mr. Brown's medications late in 2006, (missed Procrit injections, missed doses of other medications), ultimately resulting in Universal Care's overdosing him with Olanzapine (Zyprexa), thereby causing him pain, suffering, and death).

Universal Care also failed to take precautions to prevent Mr. Brown from falling, after being on notice in the admission process that he was at a high risk for falls. They also failed to change their fall prevention protocol for him after he had actual falls in the facility, resulting in his further falls.

These allegations are more than sufficient to allege conscious disregard of Mr. Brown's welfare under Intrieri.

PLAINTIFFS' THIRD CAUSE OF ACTION STATES CLAIMS FOR WRONGFUL DEATH.

Defendants mistakenly contend that plaintiffs have not alleged facts showing that defendants negligently caused Mr. Brown's death. Paragraph 140 states that the autopsy shows a toxic level of Olanzapine in Mr. Brown's blood stream. Paragraph 141 states that Universal Care provide[d] Steven excess dosing of Olanzapine, directly resulting in pain, suffering, and death on October 7,2006. Of course, these allegations state that Universal Care overdosed Mr. Brown on Olanzapine. These allegations sufficiently state a cause of action for wrongful death.

Continue reading "Sacramento Man Neglected And Abused In Residential Facility, Part 6 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

The lower court granted summary judgment for defendants, finding that the facts adduced by plaintiffs amounted only to medical negligence and not "reckless neglect." The court of appeal reversed, finding several independent bases that supported an inference of reckless neglect. Id. at 85. The nursing home's display of the keypad number above the keypad on the door to the ward, raised a reasonable inference that the nursing home had consciously disregarded the safety of the Alzheimer patients, including Mrs. Intrieri because it provided "unfettered access" to the Alzheimer's ward to any one who could read the code. Id. at 84.

The nursing home's failure to take steps to prevent the belligerent resident from harming Mrs. Intrieri and other residents, knowing that he had been exhibiting bizarre behavior, also evinced reckless neglect. Id. at 84-85. The nursing home's failure to make changes to Mrs. Intrieri's care plan after she developed pressure ulcers, and its failure to follow a care plan for the ulcers after an outside physician set a plan of treatment for the ulcers, also supported a reasonable inference that the nursing home acted with reckless neglect in caring for Mrs. Intrieri. Id. at 85.

In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, a lawsuit had been brought against a skilled nursing facility by the family of a deceased woman, who acquired pressure ulcers at the facility, which caused her death. She had Huntington's chorea disease, which put her at known risk for skin breakdown. Id. at 83. The facility was granted summary judgment in the lower court based on its argument that it had no liability unless it injured the dependent adult due to a total absence of care. Id. at 90. In reversing, the Court of Appeal held, We disagree.

Continue reading "Sacramento Nursing Care Resident Dies After Abuse, Part 5 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

Plaintiffs State A Claim for Willlful or Reckless Neglect of An Elder By Alleging That Defendants Failed to Make Effective Changes To Their Care Plans for Fall Prevention and Medication Administration Despite Being On Notice of Falls By Mr. Brown And Errors With His Medications.

The courts have held that Title 22 regulations governing Residential Care Facilities For The Elderly establish a special relationship to use due care between a facility and its residents, and that these regulations inform the standard of care owed to a resident, upon which the resident may rely in a direct action against the facility to establish negligence per se. (See Klein v. Bia Hotel Corporation (1996) 41 Cal.App.4th 1133 (Title 22 regulations in a residential care facility establish duty of care owed to resident of facility). Section 1569.312 of Title 22 Required Universal Care to provide Mr. Brown with care and supervision, monitoring to ensure his health, safety and well-being, assistance with activities of daily living (such as walking) to meet his needs, and planned activities.

A defendant is liable for reckless or willful neglect of an elder when it fails to protect an elder from health or safety hazards by failing to implement or change a care plan that protects against such hazards. In Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, decedent was a resident of defendant's nursing home. She was attacked by another resident who entered the Alzheimer's ward. She fell, broke her hip, and ultimately passed away. Prior to the attack, the nursing home was aware of the danger the other resident posed, but did not take steps to protect the decedent and other vulnerable residents on the Alzheimer's ward. The nursing home also let the decedent develop pressure ulcers on her leg, and knowing that the resident had developed pressure sores, failed to take action so that the sores wouldn't get worse. Id. at 85.

Continue reading "Reckless Neglect And Abuse By Sacramento Nursing Home, Part 4 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

Abuse of an elder or a dependent adult is defined in Section 15610.07 as "physical abuse, neglect, fiduciary abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services necessary to avoid physical harm or mental suffering."

In Mack v. Soung (2000) 80 Cal.App.4th 966, the court explained what a plaintiff must plead under the Act to show willful misconduct under the "recklessness" prong for heightened remedies:

Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a "deliberate disregard" of the high degree of probability that an injury will occur. Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions "but rather rises to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it." (Id. at 972.)

In Delaney v. Baker (1999) 20 Cal.4th 23, the neglect was on the part of a skilled nursing center, where the allegations were that an elderly resident developed stage IV bedsores as a result of the facility's rapid turn-over of nursing staff, staffing shortages, and the inadequate training of employee [s] ..., and that there were violations of medical monitoring and record keeping, preventing necessary information from being transmitted to [the resident's] personal physician on a timely basis.

Continue reading "Sacramento Elder Care Facility Sued For Abuse, Part 3 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

PLAINTIFFS' FIRST CAUSE OF ACTION STATES CLAIMS FOR WILFUL OR RECKLESS NEGLECT OR ABUSE OF AN ELDER

Plaintiffs State A Claim for Willful or Reckless Neglect of An Elder By Alleging That Defendants Chose To Maximize Profits By Understaffing And Underbudgeting Universal Care In Disregard Of Resident Safety and Welfare.

In 1991, the Legislature enacted anew article of the Welfare and Institutions Code (Welf. Code Section 15657 et seq.) Civil Actions for Abuse of Elderly or Dependent Adults, which provides for enhanced damages, fees, and costs recoverable in actions involving the abuse of an elderly or dependent adult. This article is part of a larger statutory framework known as the Elder Abuse and Dependent Adult Civil Protection Act (Welf & Inst C § 15600 et seq.) ("The Elder Abuse Act"). See Delaney v. Baker (1999) 20 Cal.4th 23, 33. Section 15657 provides that:

When it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law: (a) the court shall award to the plaintiff reasonable attorney fees and costs .... (B) the limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply.

Continue reading "Elder Abuse And Fraud Suit Filed By Sacramento Family, Part 2 of 11" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)

Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrer by All Defendants with Respect to the Brown Plaintiffs

INTRODUCTION
This is an action for elder abuse, fraud, wrongful death, unfair business practices and related causes of action against the corporate owners and managers of Universal Care’s Alzheimer's and Dementia Care Division.

The Complaint states fifteen causes of action: Elder Abuse-Willful or Reckless Misconduct, Elder Abuse-Neglect, Treble Damages for Deceptive or Fraudulent Practices Against Elderly Persons, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligent Hiring, Screening, Retention, Fraud (Concealment), Unfair Business Practices, Disability Discrimination, and Breach of Contract. Plaintiffs seek compensatory damages, restitution, punitive damages, and treble damages.

As discussed below, plaintiffs concede that the Fourteenth and Fifteenth Causes of Action for Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing are subject to demurrer, and they ask leave to amend those causes of action. Plaintiffs also concede that David Brown, individually, has not stated a claim for Reckless or Intentional Infliction of Emotional Distress, and they ask leave to amend that cause of action. In all other respects, they argue that the demurrer should be overruled.

Continue reading "Sacramento Family Sues For Elder Abuse, Part 1 of 11" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

The Notice was submitted on February 8, 2001, and was incorporated into the Plan approved by the Bankruptcy Court. The Supplement attached to the Notice lists the specific steps the various entities took during the reorganization process. With regard to the California properties, the following reorganization took place, which can be traced in Item l3 as follows:

B. 3: AMS Properties, Inc., which operated three of the defendant dbas, merged with and into GCI-Wisconsin Properties, Inc., a subsidiary of SunCare, Inc., with GCIWisconsin Properties, Inc. being the survivor after the merger.
D. 1: SunCare, Inc. converted from a C corporation to a Delaware limited liability company and changed its name to SunCare, LLC.

These additional documents clearly establish the relationship between the Ocean Group and SunCare, LLC, and its various dba's, the named defendants in the present law suit.

The reorganization process, as outlined in the Plan Documentary Supplement, is further authenticated by the Declaration of Daniel Smith, a Senior Vice President and Associate Counsel for Ocean Healthcare Management Company, a wholly owned subsidiary of Ocean Health Care, Inc., previously known as Ocean Post-Acute Network, Inc.

Continue reading "Elder Care Facilities Sued By Sacramento Families, Part 6 of 6" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

(C) Sufficient Documentation of the Bankruptcy Reorganization Exists to Support Defendants' Argument for Striking All Restitution Claims Arising Out of Conduct Preceding the Confirmation Date of the Second Amended Joint Plan of Reorganization

As noted in Defendants' moving papers, Ocean Health Care, Inc., Ocean Post-Acute Network, Inc., Ocean Health Group, Inc., and their respective debtor affiliates, filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code on January 18, 2000. Ocean Group confirmed the Second Amended Joint Plan of Reorganization for the Ocean Post-Acute Network, Inc., the Ocean Health Group, Inc., and Their Respective Debtor Affiliates Dated February 1, 2001 (as Or L Modified on March 25, 2001 for Confirmation) ("the Plan") pursuant to confirmation orders dated April 3, 2001.

On May 13, 2001, the effective day of the Plan, the Ocean Group, its debtor affiliates and all successors in interest, received the discharge injunction imposed by Section IX.D of the Plan, the Bankruptcy Court's Findings of Fact, Conclusions of Law, and Order Confirming Debtors' Joint Plan of Reorganization.

Continue reading "Sacramento Elder Abuse Advocates Seek Damages From Multiple Facilities, Part 5 of 6" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

Restitution Is Not An Appropriate Remedy for Medi-Cal or Medicare Patients

Defendants also contend that Plaintiff cannot, as a matter of law, seek restitution on behalf of those residents who receive Medi-Cal and Medicare benefits. Any party seeking to restore federal funds must do so through the federal False Claims Act, 31 U.S.C. §§ 3729-3733. Similarly, individuals seeking to restore state funds based upon false claims must proceed under the California False Claims Act, Government Code §§ 12650-12656.

As to EF's argument that Medi-Cal is akin to a loan in which Residents have an ownership interest, this argument was soundly rejected by the California Supreme Court in Kizer v. Hanna (1989) 48 Cal.3d 1. The court held, as part of a retroactivity analysis, that there is no debt created by recoupment scheme of Welfare & Institutions Code Section 14009.5. EF is, therefor, simply wrong in its bootstrap assertion that nursing home residents incur a liability at the time Medi-Cal makes payments on their behalf and that the residents, therefore, have an ownership interest in the money. To the contrary, as explained in Hanna, "the payment of Medi-Cal does not create a debt under section 14009.5, because the Department's right to reimbursement arises only after the recipient's death and even then is contingent upon conditions in existence at that time." Id., at 11. As noted in Defendants' moving papers, Section 14009.5 clearly states that there is no right to reimbursement if the recipient leaves a surviving spouse, a minor or disabled child, or an insufficient estate.

Continue reading "Sacramento Nursing Home Insurers Fight To Withhold Benefits, Part 4 of 6" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

Further, as we had previously noted, EF makes no allegations of any negative impact on any specific resident caused by the alleged under staffing and, thereby, fails to show a causal link between an individual resident's specific needs and the services received, regardless of the nursing hours supplied at that time. This is clearly inconsistent with DHS's enforcement policies as stated in their policy guidelines for enforcing the staffing level requirements.

Equally significant is the fact that, by merely asserting a lump sum amount that Defendants allegedly should have ... spent on staffing, and suggesting that amount should be distributed to residents without linking inadequate staffing to any allegations of specific incidents of fewer than 3.2 hours of service for a patient on a particular day, or allegations of harm suffered by individual residents, EF is in fact seeking disgorgement - a remedy clearly not allowed under Section 17200. In contrast to restitution, the remedy of disgorgement is available only in certified class actions and not in a representative action brought by a private party under the UCL. Kraus, supra, at 126-127; see, also, Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148-50.

Continue reading "Families From Sacramento-Area File Suit Against Elder Care Facility, Part 3 of 6" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

LEGAL ARGUMENT

(A) Restitution Is Not An Appropriate Remedy in This Case

When EF set out to attack the nursing home industry under the guise of consumer protection, it initially attempted to link its broad and unsupported allegations of understaffing with potential negative patient outcomes based on certain studies. However, EF has never alleged that any resident received fewer than 3.2 hours of nursing care on any particular day or that the residents in Petitioner's long-term care facilities have suffered any adverse care outcomes as a result of the alleged failure to comply with the staffing requirements stated in Health & Safety §1276.5. Instead, EF acknowledged that it "planned to develop" the information to support more specific allegations of adverse patient outcome through discovery. That is, EF has pursued an intentional course of action to make broad, conclusory allegations first and attempt to develop the facts to support such allegations through discovery fishing expeditions later.

EF's complaint against the SunCare defendants ("Complaint") presents the request for restitution without identifying the interests of a single resident. The Complaint is entirely devoid of any allegations that any particular resident received fewer than 3.2 nursing hours of services on any given day. Nowhere does EF explain "the nature of the vested interest" that such individuals might have in monies to be restored under Business and Professions Code Section 17203.

Continue reading "Sacramento Nursing Facility Sued For Elder Abuse, Part 2 of 6" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE

INTRODUCTION

In a dismissive 2 1/2- page document, Plaintiff ELDER FOUNDATION ("Plaintiff" or "EF") objects to the Motion to Strike Restitution Claim filed by Defendants SunCare, LLC, et al. ("Defendants" or "SunCare") on the grounds that the issues raised by Defendants have been ruled on by this Court and that the motion raises no new arguments with regard to Section III A (restitution not an available remedy) and B (restitution inappropriate for Medi-Cal/Medicare patients). Plaintiff, therefore, ostensibly acting in the interest of judicial economy, simply incorporates its opposition to the Covenant Care and Health Care motions previously heard by this Court and asks the Court to come to the same conclusion it did with regard to these motions.

As to Defendants' Section III C argument that claims arising out of actions that occurred during Defendants' bankruptcy reorganization are barred, Plaintiff asserts that because the argument is supported by a declaration, the Court must deny the motion.

Plaintiff's blase treatment of SunCare's motion ignores not only the additional arguments made by Defendants to support both its demurrer and the motion to strike the restitution claim, but fails to acknowledge that a declaration can be used under certain circumstances.

Continue reading "Sacramento Elder Care Organization Sues Nursing Facility, Part 1 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

e. The PlaintifFs Should Have the Benefit of Delayed Accrual of the Elder Abuse Claims.

The principal purpose of the rule permitting postponed accrual of certain causes of action is to protect aggrieved parties who, with justification, are ignorant of their right to sue. [Seelenfreund v. Terminix of Northern Calif., Inc., supra, 84 Cal. App. 3d at 138, see Leaf v. City of San Mateo (1980) 104 Cal. App. 3d 398, 406, the rule applies where it is manifestly unjust to deprive plaintiffs of a cause of action before they are aware that they have been injured Two common themes support the delayed discovery rule:

First, the discovery rule is applied to actions in which it is generally difficult for plaintiffs to immediately detect or comprehend the breach or the resulting injuries (e.g., where the cause or injuries are hidden). [E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 CA4th 1308, 1318] Second, courts have relied on the nature of the relationship between defendant and plaintiff to explain application of the delayed accrual rule (e.g., where confidential or fiduciary relationships are involved). [See Parsons v. Tkkner (1995) 31 CA4th 1513, 1526]

In this case the plaintiffs had to learn about why Paul Steinford died. They could not learn it from the medical records alone but rather had to have an expert interpret those for them. This is exactly the circumstances where the court can develop the rule to achieve justice.
The common law discovery rule, where applicable, indefinitely delays accrual of a cause of action until the plaintiff discovers or reasonably has cause to discover the facts constituting it.

Continue reading "Wrongful Death Of Sacramento Man Leads To Elder Abuse Suit, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

d. The Doctors Are Accused by Sufficiently Allegations of Reckless Neglect Under the Elder Abuse Act.

To establish elder abuse a plaintiff must show a defendant was guilty of recklessness, among other possibilities. [Benun v. Sup.Ct. (Country Villa East)] (2004) 123 Cal. App. 4th 113, 120] Then the controlling statute of limitations is for personal injury, hence two years. [Ibid]

The Second Cause of Action states that the doctors were reckless and showed a deliberate disregard of a high probability that injury would occur. That is recklessness. [Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1019 (citing other cases)]
In 1991, in order to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults (Welf. & Inst. Code, § 15600, subd. (j)), the Legislature added Welfare and Institutions Code section 15657 to the Act.

That section makes available, to plaintiffs who prove especially egregious elder abuse to a high standard, certain remedies in addition to all other remedies otherwise provided by law (Welf. & Inst. Code, § 15657). [1] Specifically, a plaintiff who proves by clear and convincing evidence that a defendant is liable for physical abuse, neglect, or financial abuse (as these terms are defined in the Act), and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of such abuse, may recover attorney fees and costs. (Id., subd. (a), incorporating by reference Welf. & Inst. Code, §§ 15610.30, 15610.57, 15610.63.)
Covenant Care, Inc. v. Superior Court (Inclan) (2004) 32 Cal.4th 771, 779-780.

Continue reading "Sacramento Man Suffers Elder Abuse And Wrongful Death, Part 7 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Tina Steinford, a distraught daughter of Paul Steinford, decided that her father should not have suffered and died but only could guess why. She did not have any material facts; did not have any medical records until April 2007; could not afford hiring a qualified doctor to investigate; and has no training in medicine or nursing. Her father was 84 years old, so a reasonable person does not normally suspect wrong doing or premature death.

She did not know and the medical records did not disclose the known side effects of the psychotropic drugs administered. Rather, those records refer to failures of the respiratory system, failure of the kidneys, sepsis and, unltimately, heart failure. Upset and too poor to pay for professionals, she continuously sought help but did not find it until after she contacted the Citizens Commission on Human Rights. A referral from that group to this counsel lead to the prompt involvement of a doctor that understands that psychotropic drugs poison older people. That immediately lead to the filing of this lawsuit.

The history of the delayed discovery rule preceding the passage of me three year outer limit in 1975 evidenced the possibility that the commencement of the running of the statute might be deferred indefinitely. [Brown v. Bleiberg (1982) 32 Cal. 3d 426, 432] And so in the Brown case a woman that had a foot surgery for corns sued her doctor twelve years later because unknown to her he removed bones.

Continue reading "Elderly Sacramento Man Poisoned At Nursing Facility, Part 6 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Finally, in 2007, after searching diligently to find help to review the suspected claim, Ms. Steinford found her present counsel who agreed to review the matter, and upon reading the records helped retain a competent physician who expeditiously reviewed the records, an opinion was rendered of negligence such that current counsel could on May 2, 2007, for the first time properly issue notices pursuant to Code of Civil Procedure section 364.

Prior to the actions undertaken by current counsel Ms. Steinford did not have knowledge about the negligent causation ofher father's death sufficient to bring an action sounding in medical negligence or elder abuse. Based upon these facts the statute of limitations for both medical negligence and elder abuse based upon medical negligence should be equitably tolled to allow this action to proceed or in the alternative the defendants should be equitably estopped from asserting the statute of limitations because of the false explanation of the course of death.

In addition to these facts alleged to show diligent pursuit of the factual basis to bring a claim, in this brief the plaintiffs also say:

This case is about the poisoning of Paul Steinford by means of multiple psycho tropic drugs that should never have been used but certainly should have been stopped when the symptoms started that lead to his death. Many of those symptoms are disclosed by the drug companies as side effects of the psycho tropic drugs. All of the treating doctors should have known that the drugs had those known side effects that included symptoms that Mr. Steinford exhibited to them including difficulty swallowing and toxicity.

Continue reading "Sacramento Doctors Sued For Medical Negligence And Elder Abuse, Part 5 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

The legislature, in codifying the discovery rule, has also required plaintiffs to pursue their claims diligently by making accrual of a cause of action contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause. (See, e.g., Code Civ. Proc, §§ 340.1, subd. (a) [ within three years of the date the plaintiff discovers or reasonably should have discovered ], 340.15, subd. (a)(2) [ [w]ithin three years from the date the plaintiff discovers or reasonably should have discovered ], 340.2, subd. (a)(2) [ [w]ithin one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known ], 340.5 [ one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered ].)

This policy of charging plaintiffs with presumptive knowledge of the wrongful cause of an injury is consistent with our general policy encouraging plaintiffs to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395.)

Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury.

Continue reading "Sacramento Victim's Daughter Files Elder Abuse Action Against Nursing Facility, Part 4 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

The Complaint Properly Explains the Basis for Tolling (Due to Delayed Discovery) and Should be Allowed to Proceed.

The delayed discovery rule allows a plaintiff to bring a claim beyond the one year limitation period for medical malpractice if the criteria is met. The issue in this case is whether a plaintiff who does not have a reasonable basis for suing within one year and is trying diligently to determine the facts is precluded from suing later when the facts are discovered within the outer three year limit. The case law says that the plaintiffs can proceed.

A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Code Civ. Proc, § 312 [ Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued ]; Norgart, supra, 21 Cal.4th at p. 397.) In other words, statutes of limitation do not begin to run until a cause of action accrues. (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 487;
Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 806.)

The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have "information of circumstances to put [them] on inquiry" or "if they have" the opportunity to obtain knowledge from sources open to [their] investigation.

Continue reading "Sacramento Nursing Facility Doctors Sued For Malpractice, Part 3 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

The Pleadings.

The Judicial Council complaint states that Tina Steinford and the Estate of Paul Steinford complain that eleven doctors and two institutions negligently caused the death of Paul Steinford and committed elderabuse. Since the filing of the complaint Universal Hospital and Camino Towers have been dismissed from the case, along with doctors Washington, Greene, and Black.

The thrust of the negligence claim is that Mr. Steinford was negligently prescribed anti-psychotic medications without his consent.

The Plaintiffs explain why the complaint was filed July 31, 2007, more than one year following the death of Mr. Steinford on May 5, 2005. It is important for the court to appreciate that the black box warning on Risperidone (Risperdal) refers to the dangers of strokes in elderly people. Mr. Steinford did not die from a stroke. So it is evident that Ms. Steinford was guessing and grasping at straws until she found present counsel and a qualified phsician to review the records and advance the theories announced.

The Legal Argument.

a. A Demurrer Examines the Pleading to Determine Its Legal Sufficiency.

On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Continue reading "Elderly Sacramento Man Dies In Nursing Home, Part 2 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

OPPOSITION TO DEMURRER

The plaintiffs oppose the demurrer brought by defendant doctors White, Black, Greene, Brown, Smith, and James, because the plaintiffs have set out a reason why the statute of limitations was extended beyond one year and for the time it took to file the action and that the elements of a claim for elder abuse are stated. Moreover, if the court finds any deficiencies with the complaint, the plaintiffs seek leave to amend consistent with the statements made about their claims.

MEMORANDUM OF LAW

Overview of the Case.

This case is about the poisoning of Paul Steinford by means of multiple psycho tropic drugs that should never have been used but certainly should have been stopped when the symptoms started that lead to his death. Many of those symptoms are disclosed by the drug companies as side effects of the psycho tropic drugs. All of the treating doctors should have known that the drugs had those known side effects that included symptoms that Mr. Steinford exhibited to them including difficulty swallowing and toxicity. Dr. Washington arrived on April 26, 2005, just before Mr. Steinford's untimely death, and removed him from the psycho tropic drugs, regrettably too late to reverse the effects of those drugs and save his life.

Dr. Washington is dismissed from this lawsuit and deeply thanked for his correct actions obviously reflecting knowledge and caring. We apologize for including him. The fact of his removing Mr. Steinford from the harmful drugs was just discovered. All doctors arriving on or after April 26, 2005 have been dismissed.

Continue reading "Sacramento Family Sues Nursing Facility For Elder Abuse, Part 1 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

SPECULATIVE TESTIMONY REGARDING PLAINTIFF'S LEVEL OF FUNCTIONING WOULD BE HIGHLY PREJUDICIAL

The court has inherent power to grant a motion to exclude Any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clement v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451; Peat. Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal. App. 3d 272, 288.

Evidence Code §352 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. People v. Cardenas (1982) 31 Cal. 3d 879, 904.

Evidence Code §402 allows this court to hear and determine the question of the admissibility if evidence outside the presence or hearing of the jury. Mize v. Atchison, Topeka & Sante Fe Ry. Co. (1975) 46 Cal. App.3d 436, 448.

THE COURT MAY EXCLUDE AN EXPERTS OPINION WHERE BASED ON SPECULATION OR CONJECTURE

An expert may not base his/her opinion on speculation or conjecture. Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 338; Long v. Cal-Western States Life Ins. Co. (1955) 43 Cal. 2d 871, 882 (Experiments based largely on speculation or conjecture are not the proper subject of expert testimony). An expert's opinion may also be excluded if it is not shown to be reliable. People v. Price (1991) 1 Cal. 4th 324, 419-420; People v. Carter (1957) 48 Cal. 2d 737, 752.

Continue reading "Elder Abuse Victim Challenges Expert In Sacramento Nursing Home Wrongful Death Case, Part 2 of 2" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Plaintiff John Allen’s Motion In Limine to Exclude Sammi Nunn, R.N. from Testifying Regarding Her Opinion on Plaintiff's Functional Capacity and Competency

STATEMENT OF FACTS

The defense has designated Sammi Nunn, R.N., as an expert. Plaintiff believes that part of her testimony will consist of opinions about plaintiff's functional capacity and competency while an inpatient at defendant's University Hospital and Generic Nursing, Inc.’s residential facility in Sacramento.

GROUND FOR EXCLUSION

1. The expert witness is not qualified to render an opinion about plaintiffs functional capacity and competency.

A NURSE WITH NO EXPERIENCE IN PSYCHOLOGICAL EVALUATIONS IS NOT QUALIFIED TO TESTIFY ON THE ISSUE OF PLAINTIFF'S FUNCTIONAL CAPACITY.

The Evidence Code §720(a) provides that A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his [her] testimony relates. According to Sammi Nunn's Curriculum Vitae, she is a registered nurse with no background in conducting psychological evaluations to determine an individuals functional capacity. In this matter, plaintiff was a mentally disabled individual with an IQ of 66. Like Dr. Goldberg, Sammi Nunn is not qualified to render an opinion regarding plaintiff's functional capacity and competency. (See Part 2 of 2.)

Continue reading "Family Of Sacramento Man Who Died Files Suit For Elder Abuse, Part 1 of 2" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Allen developed decubitus ulcers because the nurses in charge of his care did not turn and reposition him as required. Allen was a quadriplegic, and the nurses' orders stated that he needed to be turned once every two hours. XYZ's employees did not turn Allen once every two hours as required, and XYZ has admitted that its nurses failed to carry out their own orders. XYZ argues that its employees did not turn Allen as required because he refused to cooperate, and that he stated that he did not want to be turned. In support of its argument, XYZ contends that patients have a right to refuse treatment. XYZ's position is both legally and medically unsound, as only competent patients have the right to decide what medical care to receive.

Here, Allen lacked the capacity to accept or refuse treatment. There is ample information in Allen's medical records that indicates that Allen lacked the capacity to accept or refuse treatment. Allen was unable to read, write, or count. He was unable to manage money, and was assigned a payee for his monthly Social Security Check. Allen was also a regional center client prior to his admission at University. XYZ's employees did not conduct a formal evaluation of Allen's functional capacity or a psychological evaluation. Moreover, Allen was not interviewed by a psychiatrist or psychologist while a resident at University. The failure to turn Allen as required in his care plan was reckless neglect and a breach of the standard of care that is discussed in CACI Instruction 504.

XYZ's employees knew or should have known that if they did not provide Allen with assistance with mobility, there was a high probability that he would develop decubitus ulcers based upon Allen's high risk for pressure ulcers. Those in charge of Allen's custodial care knew, or should have known of Allen's high risk for developing decubitus ulcers, and they were reckless in their failure to take the necessary steps to ensure that Allen was receiving proper custodial care.

Continue reading "Wrongful Death Of Sacramento Man In Elder Care Facility, Part 3 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

INJURY

As discussed above, Allen developed stage III decubitus ulcers on his buttocks, stage IV decubitus ulcers on his left hip, and a stage II decubitus ulcer on his left ankle. Allen developed a bone infection called osteomyelitis that resulted from his decubitus ulcers. In order to treat the osteomyelitis, Allen underwent surgical process called debridement that took place on May 16, 2005. Photographs of Allen's decubitus ulcers will be available at the settlement conference. As a result of the assault, Allen suffered injuries to the chest, shock, humiliation, and fear.

LIABILITY

A health care provider may be held liable for reckless neglect for failing to take appropriate action, repeatedly or over a significant period of time, when a dependent adult suffers a decline or change in condition. Sababin v. Superior Court (2005) 144 Cal. App. 4th 81, 90, 50 Cal. Rptr. 3d 266. The defendant in Sababin, like defendant XYZ, argued that it cannot be held liable for dependent adult abuse unless it had injured the patient due to a total absence of care. The court disagreed. The court concluded that even [I]f some care is provided, that will not necessarily absolve a care facility of dependent adult abuse liability.

If a care facility knows that it must provide a certain type of care on a daily basis, but provides that care sporadically, or is supposed to provide multiple types of care, but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care.

Continue reading "Sacramento Elder Abuse Victim Dies, Part 2 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Plaintiff John Allen ("Allen"), deceased, by and through his conservator, Darrell Allen, submits the following Settlement Conference Statement:

INTRODUCTION

This is an action for violation of the Elder Abuse and Dependent Adult Act ("EADACPA") and negligence against defendant XYZ MEDICAL CENTER ("XYZ") for its reckless neglect in its failure to provide adequate custodial care to Allen. This also an action for violation of the EADACPA, negligence, battery, and intentional infliction of emotional distress against defendant Paul Smith ("Smith") arising out the battery against Allen. Furthermore, this is an action against defendant Generic Nursing, Inc., ("Generic") under the doctrine of respondeat superior, and for negligent hiring and retention of defendant Smith.

STATEMENT OF FACTS

Allen, who is now deceased, was an incompetent adult as determined by the probate court. The court appointed Allen's father to be the limited conservator over Allen's person and estate. Therefore, Allen was the proper plaintiff under the EADACPA. Allen suffered from attention deficit disorder with hyperactivity, global developmental disability, and had emotional behavioral problems. Prior to his admission to XYZ's medical facility, Allen was a regional center client. An individual is eligible to be a client of the regional center if he/she has a developmental disability and has an IQ of 85 or below. Allen could not read, write, count, or manage his own finances. He was assigned a payee who managed his social security check.

On or about February 11, 2005, Allen was shot in the neck, and the shooting rendered him a quadriplegic. Shortly after the shooting, Allen was admitted to University, a branch of XYZ.
Shortly after being admitted to University, Allen was assessed for his risk for developing decubitus ulcers. The University staff at XYZ concluded that Allen's risk for developing decubitus ulcers was high. In order to satisfy his nutritional needs, Allen was given a percutaneous endoscopic gastrostomy tube (PEG) that was monitored by his dietician.

Continue reading "Sacramento Man Dies In Nursing Home, Part 1 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

THE COURT SHOULD OVERRULE DEFENDANT'S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN'S CLAIM FOR DAMAGES UNDER CAL. CIV. CODE §3345.

Defendant argues that Allen cannot recover under Cal. Civ. Code §3345 because there are no fines or penalties to be trebled in this case. This argument is without merit. Allen is seeking the statutory penalties against defendants XYZ Medical Center under Cal. Welf. & Inst. Code §15630(h), which provides for a fine of $1,000 for the failure to report the abuse of an elder or dependent adult, and a fine of up to $5,000 if the failure to report the abuse was willful. Allen is also seeking punitive damages against defendants Paul Smith and Generic Nursing, Inc. Punitive may be trebled pursuant to Cal. Civ. Code §3345. Therefore, there is a proper basis upon which treble damages may be awarded in this action, and the court should overrule defendant's motion to strike Allen's claim for treble damages.

IF THE COURT FINDS THAT ALLEN HAS NOT STATED SUFFICIENT FACTS TO SUPPORT HIS CAUSES OF ACTION, ALLEN REQUESTS LEAVE TO AMEND HIS COMPLAINT.

The Cal. Code of Civ. Proc. §472a(c) provides that: When a demurrer is sustained, the court may grant leave to amend the pleading upon any terns as may be just and shall fix the time within the amendment or amended pleading shall be filed.

Continue reading "Severe Abuse and Neglect By Sacramento Hospital Leads To Lawsuit, Part 7 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Here, Allen may bring a civil action under section 15656 of the Welfare and Institutions Code. In Laczko v. Jules Meyers, Inc. (1969) 276 Cal. App. 2d 293, 295, 80 Cal. Rptr. 798, and Michael R. v. Jeffrey B. (1984) 158 Cal. App. 3d 1059, 205 Cal. Rptr. 312, the court held that a violation of a statute embodying a public policy is actionable even though no specific civil remedy is provided in the statute itself. Any injured member of the class whom the statute was designed to protect may include the violation of the statute as a cause of action in a civil matter.

There is nothing in Welfare and Institutions Code 15656 that precludes Allen from bringing a civil action based upon that state. The general purpose of the EADACPA is to protect elders and dependent adults from gross mistreatment in the form of abuse and custodial neglect. Delaney v. Baker (1999) 20 Cal. 4th 23,33, 82 Cal. Rptr. 2d 610. Allen is a member of the class that section 15656 was designed to protect. As a member of this class, Allen may bring a civil action balked upon section 15656, even though the statute does not provide for civil remedies. The legislature did not intend to prevent an individual from asserting a cause of action in a civil matter under Welfare and Institutions Code §15656.

Allen has alleged a viable claim under Cal. Welf. & Inst. Code §15656.

As stated above, less particularity in pleading statutory causes of action is needed when the defendant may be assumed to have knowledge of the facts equal to or superior to that possessed by the plaintiff. Burks v. Poppy Constr. Co. (1962) 57 Cal. 2d 463, 474, 20 Cal. Rptr. 69; Dahlquist v. State of California (1966) 243 Cal. App. 2d 208, 212, 52 Cal. Rptr. 324.

Continue reading "Family Of Elderly Sacramento Patient Sue Nursing Home For Abuse, Part 6 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Here, Allen alleges that defendants were responsible for his custodial care due to his physical and mental disabilities. He further alleges that defendants abused this position when defendant and its employees [E]ither caused, contributed to, or witnessed the injuries sustained by plaintiff and deliberately and callously failed and refused to seek or provide appropriate medical attention for those injuries, all with the intention to delay or prevent discovery of their own involvement and responsibility in the injury causing event and its aftermath.

Allen also avers that the defendant's acts were unreasonable and were done for the "[P]urpose of causing plaintiff to suffer pain, mental anguish, and severe emotional and mental distress." Allen was also in a depressed state of mind due to the fact that he was a victim of a shooting that rendered him paralyzed, and defendants were aware of this fact that made him susceptible to further mental distress. These allegations, along with Allen's factual allegations of abuse and neglect, are sufficient to state a cause of action for intentional infliction of emotional distress. Therefore, defendant's demurrer should be overruled with respect to this cause of action.

THE COURT SHOULD OVERRULE DEFENDANT'S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN’S CAUSE OF ACTION FOR DEFENDANT'S VIOLATION OF CAL. WELF & INST. CODE §15656

Allen may properly assert a claim under Welf. & Inst. Code §15656.

Continue reading "Sacramento Man Suffers Elder Abuse And Neglect At Local Facilities, Part 5 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Allen has properly alleged wrongful misconduct on the part of an officer, director, or managing agent of defendant.

The Cal. Welf. and Instit. Code §15657.5(b)(2) provides that a plaintiff must satisfy the requirements of Cal. Civ. Code §3294(b) before any damages or attorney fees allowed under the EADACPA may be imposed against the employer.

Under section 3294(b) of the Civil Code, an employer may be deemed liable for punitive damages based upon the acts of an employee if:

(1) The employer had advanced knowledge of the unfitness of the employee and employed him/her with a conscious disregard of the rights or safety of others;
(2) The employer authorized or ratified the wrongful conduct for which the damages are awarded; or
(3) The employer was personally guilty of oppression, fraud, or malice.

For pleading purposes, an general allegation of agency is sufficient in overcoming a demurrer, as an allegation of agency is one of ultimate fact.. Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal. App. 3d 222, 235, 192 Cal. Rptr. 492. Here, Allen alleges that the conduct of defendant's employees was carried out by a managing agent, or by an officer or director of defendants. He also alleges that A managing agent, officer, or director of defendant authorized and ratified each defendant's conduct. Therefore, the court should overrule Defendant's demurrer with respect to Allen's cause of action for violation of the EADACPA.

Continue reading "EADACPA Elder Abuse Charges Filed Against Sacramento Hospital, Part 4 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

The allegations in the complaint are sufficient to withstand defendant's demurrer. Allen alleges that he is a dependent adult under the EADACPA. He alleges conduct that constitutes Neglect under Cal. Welf. & Inst. Code §15610.57 by stating the following:

(1) While an inpatient at defendant's medical facility known as University Hospital, plaintiff developed severe stages three and four decubitus ulcers on his body, which was known but concealed, or in the exercise of reasonable care, should have been [known] by defendant and its employees. As a result of the decubitus ulcers, plaintiff suffered injuries which contributed to his existing physical injuries, and caused delays in his physical therapy. The injuries that were the result of the development of the decubitus ulcers were legally caused by the acts and/or omissions of defendants. The defendants, knowing of the injury and the likelihood that an injury would occur if they failed to act, deliberately failed and/or refused to provide timely assessment and treatment of plaintiff's injuries. Defendants also failed and/or refused to investigate and/or document the circumstances and cause of the injuries suffered by plaintiff;

(2) While plaintiff was an inpatient at University Hospital, defendant, and its employees abandoned plaintiff for an extended period of time without nursing or other appropriate attention, despite his weakened condition and complete dependence upon such personnel;

(3) Defendants, and each of them, intentionally acted to cover up the existence and cause of plaintiff's injuries and circumstances as described above, by failing and/or refusing to invest gate and/or appropriately document such occurrences by failing or refusing to notify family members, or appropriate law enforcement or regulatory personnel of such occurrences;

Continue reading "Neglect By Sacramento Nursing Facility Subject Of Lawsuit, Part 3 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

It is well settled that less particularity in pleading is necessary where the defendant may be assumed to have equal or superior knowledge of the facts than the plaintiff does. Burks v. Poppy Constr. Co. (1962) 57 Cal. 2d 463,474, 2 Cal. Rptr. 609; Dahlquist v. State of California (1966) 243 Cal. App. 2d 208, 212, 52 Cal. Rptr. 324; Doheny Park Terrace v. Truck Ins. (2005) 132 Cal. App. 4th 1076, 1099, 34 Cal. Rptr. 3d 157. The courts have reasoned that less particularity is required because [M]odern discovery procedures necessarily affect the amount of detail that should be required in a pleading. Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4 th 592, 608, 98 Cal. Rptr. 2d 277.

Moreover, not all statutory causes of action must be alleged with the specificity that defendant suggests. A cause of action based upon a defendant's violation of business and professions code section 17200 does not have to be alleged with specificity. Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46, 77 Cal. Rptr. 2d 709.

Here, defendant, who has been Allen's health care provider since he was hospitalized beginning February 11, 2004, may be assumed to have knowledge of the facts of this action that is equal to or superior to that of Allen. Defendant has Allen's complete medical chart in its possession. Defendant's employees at University Hospital who were responsible for Allen's custodial care, including the nurses, knew or should have known that because Allen was paralyzed, he needed regular assistance with turning and movement.

Continue reading "Sacramento Hospital Sued For Elder Abuse By Patient's Family, Part 2 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Demurrer and Motion to Strike Portions of Plaintiff's Third Amended Complaint

INTRODUCTION

Plaintiff John Allen ("Allen"), an incompetent adult, and Sacramento resident, by and through his conservator, Darrell Allen, requests that the Court issue an order overruling Defendant XYZ Medical Center's ("Defendant") demurrer and motion to strike portions of Allen's third amended complaint. Allen has properly alleged causes of action for Defendant's violation of the Elder Abuse and Dependent Adult Civil Protection Act ("EADACPA"), intentional infliction of emotional distress, and violation of Cal. Welf & Inst. Code § 15656. Additionally, Allen may also seek treble damages as set forth in Cal. Civ. Code §3345 as a result of Defendant's neglectful and abusive conduct. Alternatively, Allen requests that the court grant him leave to amend if the court finds that he has not properly alleged the causes of action contained in his complaint.

DISCUSSION

THE COURT SHOULD OVERRULE DEFENDANT'S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN'S CAUSE OF ACTION FOR VIOLATION OF THE EADACPA.

Allen has alleged sufficient facts to state a cause of action for violation of the EADACPA.

Continue reading "Sacramento Man Files Elder Abuse Claim Against Nursing Facility, Part 1 of 7" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Dr. XY is incorrect when he asserts that no new facts have been alleged to support Plaintiffs' cause of action for elder abuse. New facts have been alleged in the TAC and incorporated by reference in paragraphs 34-35.

For these reason, Defendants' Demurrer should be overruled and this lawsuit be allowed to proceed to discovery and trial by jury.

CIVIL CODE SECTION 337.4 LIMITATIONS DO NOT APPLY
Defendant DAVID XY, M.D. claims that Decedent' s pain and suffering does not survive her death. He further claims that because recoverable damages are an essential element, Plaintiffs cannot make out a cause of action for Intentional Infliction of Emotional Distress. Welfare and Institutions Code Section 15657.5(b)(1) specifically provides:

The limitations imposed by Section 377.4 of the Code of Civil Procedure on the damages recoverable shall not apply.

As argued above, Plaintiffs have alleged facts sufficient to state a cause of action for abuse of Decedent, a dependent adult within the meaning of Welf & Inst. Code §§ 15600, et. seq. Therefore, Section 377.4 does not apply to pain and suffering by the defendant caused by abuse in the form of custodial neglect in this case.

Continue reading "Wrongful Death Suit Filed On Behalf Of Sacramento Woman In Nursing Facility, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Nursing notes written approximately six hours before Ms. Fine's family called the paramedics include the following entries: "Resident alert and responsive. Fluids tolerated well. Vital signs normal, no pain. No shortness of breath. No acute distress at this time. Dr. XY aware of recent lab results. Resident resting in bed, turned every two hours for comfort..."

Dr. W's notes from ABC Hospital compiled in the Emergency Department, minutes after Claire Fine left Eastern, tell a very different story. The hospital records describe Claire Fine as dehydrated, in shock due to an infection with a blood pressure of 63/37, and suffering from kidney failure. She had a feeding tube in place that was not being used to feed her. She had poor skin turgor, decubitus ulcers and contractures. Dr. W. had originally asked that she be transferred to University Medical Center but her condition was so critical that the paramedics took her to ABC Hospital because it was closer to Eastern

Dr. W. stated in his notes that Decedent was unable to respond to his questions. Perhaps the most disturbing finding was rhabdomyolysis, a condition caused by the breakdown in muscle tissue releasing a compound toxic to the kidneys. The condition occurs when a person is left to lie in one place for prolonged periods of time. Dr. W. felt rhabdomyolysis had been present for about one week. The nursing home was unable to reach Dr. XY, who returned a call placed to him by the nursing home only after Decedent had been transferred by paramedics. She died 10 days later. Claire was 53 years of age. Records indicate that she had been suffering from cancer for over one year that had gone undiagnosed and untreated.

Continue reading "Elder Abuse At Sacramento Convalescent Home Results In Death, Part 7 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Despite repeated complaints from family members and assurances that Decedent's complaints of pain would be addressed, neither the nursing staff nor Dr. XY intervened in an effort to determine what was causing Decedent's deteriorating physical condition and pain.

On a visit in late October, family members were convinced Decedent was very ill. They demanded that decedent be transferred to a hospital. The nursing staff and Dr. XY refused to co-operate with the family. Because Eastern refused to seek medical attention for Decedent, and because Dr. XY failed to come to the facility to examine Decedent and refused to authorize a transfer to an acute care facility, the family called the paramedics to Eastern.

When paramedics arrived, the nursing staff refused to allow them entry to attend to Decedent. The family ultimately gained access to Eastern for paramedics. The family then fired Dr. XY and asked Dr. Steven W. to care for Decedent. Decedent was transferred to Olympic Medical Center.

“The nursing notes from Eastern compiled on the days leading up to her transfer to Olympic Hospital, an acute care hospital, forced upon Eastern by the family, read as if Decedent was awake, alert, with normal vital signs and eating a healthy diet. There is one mention of skin breakdown on her sacrum but no other indication that she is not well, in pain and not alert.

Continue reading "Doctor At Sacramento Skilled Nursing Facility Sued For Elder Abuse, Part 6 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Plaintiffs' FAC alleges in paragraphs 9, 19, 20, 21, 24, 25 27, 28 and 29 that while in the care and custody of the moving party, Decedent suffered severe malnutrition, was unreasonably and continuously restrained, suffered pain that went untreated, suffered stage III decubitus ulcers, severe infection, acute untreated kidney failure, and severe dehydration. These paragraphs further allege that Defendant Dr. XY had a duty as her attending physician to ensure that her basic physical, safety and medical needs were attended to. Plaintiffs also allege that the above referenced maladies and other occurred because Dr. XY failed to monitor and assess her condition, failed to maintain accurate records, failed to provide nutrition to prevent malnutrition and fluids to prevent dehydration, failed to take proper measures to prevent skin breakdown and to monitor skin integrity, failed to monitor and respond to notification by the nursing staff that Decedent's condition had deteriorated and required his medical attention.

C. Defendants Acted with Recklessness, Oppression and Fraud.
In order to make out a claim for abuse of a dependent adult the EADACPA, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. These three categories involve intentional, wilfull, or conscious wrongdoing of a despicable or injurious nature. College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721. These are the same allegations that are required to make out a claim for Wilful Misconduct under Civil Code §3294 which is Plaintiffs' First Cause of Action in their FAC. Defendant's Demurrer to this cause of action was previously overruled by this Court. Recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a conscious choice of action with knowledge of the serious danger to others involved. (Id., at 721.)

Continue reading "Elder Abuse Claim Filed In Sacramento-Area Nursing Facility, Part 5 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

C. There Is No Requirement That Plaintiffs Show That Dr. XY Was The Custodian of Claire Fine.
In his moving papers, Dr. XY maintains that he cannot be held liable under a theory of abuse of a dependent adult because he was not Decedent's custodian. This argument is wholly without merit. In Mack v. Soung (2000) 80 Cal. App. 4th 966, the children of an elderly woman sued her physician under the Elder Abuse statute. Dr. Soung maintained that he could not be liable under EADACPA because he was not the decedent's custodian. In overruling his argument the court specifically found:

Dr. Soung additionally claims he cannot be liable under the Elder Abuse Act because he was not Girtha's custodian or caretaker...He is wrong... neglect is not restricted to care custodians. Instead it applies generally to anyone having care or custody of the elder, and specifically mentions the [f]ailure to provide medical care for the physical and mental health needs.

The Mack court further pointed out that Dr. Soung's argument was vitiated by the California Supreme Court's decision in Delaney v. Baker (1999) 20 Cal. 4th 23. In that decision, the court held that health care professionals are not exempt from the heightened remedies triggered by § 15657 when they are guilty of reckless neglect. Here, Dr. XY had responsibility as the attending physician of Decedent to ensure that she was fed, hydrated, medicated, free of abuse, and that her medical needs were attended to.

Continue reading "Woamn Dies From Neglect In Sacramento Skilled Nursing Facility, Part 4 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

A. Decedent Was a Dependent Adult Within the Meaning of Welfare & Institutions Code § 15610.23
Welfare & Institutions Code § 15610.23 defines a dependent adult as an individual between the ages of 18 and 64, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to persons who have physical or developmental disabilities... Plaintiffs' Fourth Amended Complaint (FAC) alleges in part:

In September 2001, forty-five year old Decedent, CLAIRE FINE, suffered a severe heart attack. Decedent ultimately survived the heart attack but was left with severe brain damage due to lack of blood flow to her brain. She was diagnosed with hypoxic encephalopathy or brain damage caused by lack of oxygen.

Due to her severe brain damage, Decedent was unable to feed herself, speak, walk or attend to her personal needs, including bowel and bladder hygiene. Defendants, and each of them, were aware of her mental and physical disabilities when she was admitted to Eastern Convalescent Hospital and knew that these disabilities continued up to the time of her transfer to an acute care facility.

B. Decedent Suffered Egregious Custodial Neglect While in the Exclusive Custody and Care of Defendants, Including Dr. XY.
Statutory Elder Abuse is defined by Welf & Inst. Code § 15610.57 in part as: (a) Neglect means either of the following:

Continue reading "Wrongful Death Of Woman In Sacramento Convalescent Home, Part 3 of 8" »

Many people suffer from some type of abuse through out their lives, whether it be verbal, physical, or sexual. The elderly are a huge group that suffer from abuse, mainly negligence. Here at the Law Offices Of Moseley Collins, we have dealt with numerous cases involving elder abuse.

I have here an accumulation of facts and statistics on elder abuse.

You can also locate these at safestate.org

"Every year an estimated 2.1 million older Americans are victims of physical, psychological, or other forms of abuse and neglect. For every case of elder abuse and neglect reported to authorities, experts estimate that there may be as many as 5 cases not reported. Research suggests elders who have been abused tend to die earlier than those who are not abused, even in the absence of chronic conditions or life threatening disease." Elder Abuse and Neglect: In Search of Solutions

American's over the age of 50 years represent 30% of our population, 12% of our murder victims and 7% of other serious and violent crime victims.

90% of elder abuse and neglect incidents are by known perpetrators, usually family members, 2/3rds are adult children or spouses. 42% of murder victims over 60 were killed by their own offspring. Spouses were the perpetrators in 24% of family murders of persons over 60.

The eldest of our seniors, 80 years and older, are abused and neglected at 2 - 3 times the proportion of all other senior citizens. -- Bureau of Justice Statistics

In most states "mandatory reporters of elder abuse" are required by law to report suspected cases of elder maltreatment. Nearly 70 percent of Adult Protective Service agencies' annual caseloads involve elder abuse.

21.6% of all domestic elder abuse reports came from physicians or health care professionals 9.4% from service providers, 14.9% are family members. They types of abuses and their percentage of frequency are below.

Neglect 58.5%
Physical abuse 15.7%
Financial exploitation 12.3%
Emotional abuse 7.3%
Sexual abuse .04%
All other types 5.1%
Unknown .06%

As a Sacramento personal injury lawyer, Moseley Collins specializes in serious personal injury cases, including elder abuse. We believe that if you or a loved one have been seriously injured, you should retain an experienced personal injury attorney. Click here or call us at (916) 444-4444. We are ready to get started on winning your case. There is never a fee until we win!

In our Sacramento area, owners and two employees of a Citrus Heights care facility are being arrested and tried for the deaths of three of their elderly residents. It was around this time last year that a fire tore through the halls of the facility. All employees and some residents were able to escape the fire, with the exception of three.

Reports from the Sacramento Metropolitan Fire District are showing the reason why these two were not able to escape the fire was because of unlawful restraints that held them in their rooms. One woman, Doris Bower, was not able to leave because railing on the side of her bed prevented her from getting out. Another woman, Virginia Esler, was trapped in her room by a locked wheelchair. The third woman, Marjorie Leroux, had a bed that was completely surrounded by railing. People were able to get Marjorie out of the fire eventually, but she died several days later from trauma associated with the fire.

An investigation was carried out that showed the restraints in place during the fire were against safety regulations. Through the investigation, other violations were also revealed. The fire was discovered to be a result of a resident who ignited a stuffed chair in her bedroom with a cigarette. There are regulations within residential care facilities that do not allow for any patient with dementia to be allowed to smoke, except in designated areas. One of the owners found the fire that night and seemingly put it out. Unfortunately, the fire began to smolder again and began the disastrous fire that eventually ended in the death of three.

The owners and two staff are being charged with involuntary manslaughter for these deaths.

Violations in care facilities such as this and elder abuse are a huge and growing concern in the United States. Reports from the United States General Accounting Office showed that in 1998, one-third of nursing homes in California were cited for serious and/or life-threatening problems within their facility. To magnify this problem, please take a look at the following statistics for counties within California:

In 1999, the U.S. Congress Committee on Government Reform (USCCGR) reported that of the 439 nursing homes in Los Angeles County, only one was in total compliance with federal standards of care.

In 2000, the USCCGR reported that only 18 of the 288 nursing homes in the San Francisco Bay Area were in full or substantial compliance with federal standards of care.

In 2001, the USCCGR reported that all 27 of the nursing homes in the 22nd Congressional District (Santa Barbara) violated federal health and safety standards.

No care facility should hold such low standards. If you have a loved one who has been abused as the result of a care facility’s negligence and disregard, please call me at the Law Offices of Moseley Collins.

Web Resources:

Two owners, two staffers arrested in fatal Citrus Heights care home fire, The Sacramento Bee

Elder Abuse In Nursing Homes, The Office of the Attorney General; Bureau of Medi-Cal Fraud and Elder Abuse