I recently resolved a neglect elder abuse case in which a skilled nursing facility failed to check on an elderly patient. Does the failure to check on a patient become elder abuse under the law? Yes when there are clear signs of a change in a patient’s condition. Some people including the staff and the daughter noticed the change like speech problems and complaints of pain. The facility staff did very little and, unfortunately, they did nothing.
Complain to the Government
My client, the daughter, was very distraught and complained to the government including the California Department of Public Health. That ended up being very helpful because the government did a quick investigation and uncovered problems that would have been difficult to find by a private attorney in a civil lawsuit.
The Law on Neglect Elder Abuse
Our case was about the neglect type of elder abuse.
“The Elder Abuse Act defines abuse as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (Welf. & Inst.Code, § 15610.07, subd. (a), italics added); or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” (id., § 15610.07, subd. (b)). The Act defines neglect as “[t]he 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.” (Id., § 15610.57, subd. (a)(1).)
“Neglect includes, but is not limited to, all of the following: [¶] (2) Failure to provide medical care for physical and mental health needs…. [¶] (3) Failure to protect from health and safety hazards.” (Id., § 15610.57, subd. (b).) In short, neglect 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.” (Delaney v. Baker (1999) 20 Cal.4th 23, 34, 82 Cal.Rptr.2d 610, 971 P.2d 986 (Delaney ).) 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.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783, 11 Cal.Rptr.3d 222, 86 P.3d 290 (Covenant Care ); see also id. at p. 786, 11 Cal.Rptr.3d 222, 86 P.3d 290.)
The Legal Standard in Neglect Elder Abuse Cases
“The plaintiff must prove “by clear and convincing evidence” that “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of” the neglect. (Welf. & Inst.Code, § 15657.) Recklessness involves “ ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur” and “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 pp. 31–32, 82 Cal.Rptr.2d 610, 971 P.2d 986.)” Carter v. Prime Healthcare Paradise Valley LLC, 198 Cal. App. 4th 396, 404–05 (2011).
Change In Condition and Neglect
A facility must immediately inform the resident; consult with the resident’s physician; and notify, consistent with his or her authority, the resident representative(s), when there is a significant change in the resident’s physical, mental, or psychosocial status (that is, a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications). 42 CFR § 483.10(g) (14). Nursing service shall notify the attending licensed healthcare practitioner acting within the scope of his or her professional licensure promptly of any sudden and/or marked adverse change in signs, symptoms or behavior exhibited by a patient. 22 CCR §72311.
The services provided as outlined by the care plan must meet professional standards of quality. 42 CFR § 483.21 (b) (3) (i); See also 42 CFR § 483.25 (regarding quality of care).
The facility must conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity. This includes mood and behavior patterns, physical functioning, and cognitive patters. 42 CFR §483.20; 22 CCR §72311.
Change in Condition
In our case, there was a major change in condition but the facility failed to take appropriate actions. We were able to successfully argue that the failure to take action constituted neglect. It helped that the government had conducted an independent investigation and confirmed that there was a change in condition and the facility failed to take appropriate action.
I handle neglect elder abuse cases and provide a free consultation.
