Elder Abuse: Simple or Gross Negligence

By on April 1, 2015 - Comments off

Worsham v. O’Connor Hospital, (Sixth District, April 23, 2014) 2014 WL 2085555, — Cal.Rptr.3d —-, 14 Cal. Daily Op. Serv. 5525

An elderly woman who suffered a broken arm and broken hip as a result of a post-surgery fall at a hospital transitional care unit, filed an action against the hospital, alleging violation of the Elder Abuse Act (Wel. & Inst.Code, §§ 15600, et seq.). The plaintiff alleged that the unit was chronically understaffed, and did not adequately train the staff it did have. The plaintiff also alleged that the defendant was aware that she had a risk of falling, and that the defendant should have provided a “sitter” as recommended by the patient’s physician.

The trial court sustained the defendant’s demurrer to a second amended complaint without leave to amend, and the court of appeal affirmed, holding that absent facts indicating recklessness, the failure to provide adequate supervision would constitute professional negligence but not elder abuse:

[N]eglect as a form of abuse under the Elder Abuse Act refers ‘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.”… Thus, when the medical care of an elder is at issue, “the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.’ …

The Elder Abuse Act does not apply to simple or gross negligence by health care providers. … To obtain the enhanced remedies of section 15657, “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.” … “ ‘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 [citations]. 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.’”…

[T]he allegations in the present case concern O’Connor’s alleged negligent undertaking of medical services, rather than a failure of those responsible for attending to Ms. Worsham’s basic needs and comforts to carry out their custodial or caregiving obligations. … The allegations, if true, demonstrate O’Connor’s negligence in the undertaking of medical services, not a “fundamental ‘[f]ailure to provide medical care for physical and mental health needs.’ ” 

Worsham argues O’Connor should have provided a “sitter” to ensure Ms. Worsham did not fall, and that Ms. Worsham’s doctor recommended that a sitter be provided. However, this allegation, like that of understaffing and under-training, amounts to professional negligence. Absent specific facts indicating at least recklessness, any failure to provide adequate supervision would constitute professional negligence but not elder abuse …”

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