Elder neglect cases in acute care facilities: It's not just a nursing-home problem

By Kathryn Stebner; Advocate- Journal of Consumer Attorneys Associations for Southern California. February 2008.

Education is the name of the game when it comes to bringing a cause of action based on the Elder Abuse and Dependent Adult Civil Protection Act ("the Act" or "EADACPA") (Welfare & Inst. Code ' 15600, et seq.) against an acute care facility. Plaintiffs' attorneys must be prepared to educate the defense attorneys, the acute care facilities, the insurance companies, and even the courts that neglect is neglect, whether it occurs in an intensive care unit in a prestigious hospital or skilled nursing facility with a history of citations.

The learning curve becomes steeper even still when the case happens to involve a dependent adult's care in an acute care facility. When bringing a case on behalf of a dependent adult against an acute care facility, the plaintiff's counsel should be ready to argue seemingly obvious points the defense attorney - that neglect is neglect, whether it happens to an elderly individual or a dependent adult and that the same types of injuries that we see in nursing homes, such as stage four decubitus ulcers, occur in ICUs and are caused by the same type of reckless omissions, such as failure to reposition and assess skin condition. These injuries affect the elderly and dependent adults alike. And, the legislature, by creating the Elder and Dependent Adult Civil Protection Act, has set out to protect both groups equally from such neglect and resultant injuries.

These cases - dependent adult neglect cases against acute care facilities - have met tremendous resistance from the defense bar, who greatly fear the opening of the floodgates. While there is certainly hesitation to accept a hospital patient as a "dependent adult," the definition of "dependent adult" as provided by EADACPA is broad and encompassing. Welfare and Institutions Code Section 15610.23 defines "Dependent adult" as follows:

(a) "Dependent adult" means any person between the ages of 18 and 64 years who resides in this state and 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, or whose physical or mental abilities have diminished because of age.

(b) "Dependent adult" includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

Pursuant to the breadth of this definition, defense attorneys have not yet been able to construct convincing and successful arguments to exclude hospital patients who have physical or mental limitations that restrict their abilities to carry out normal activities.

Unable to succeed against the broad definition of "dependent adult," defense attorneys often attempt to attack the application of EADACPA to an acute care setting. These attorneys, many whom come from a medical malpractice background, argue vigorously that the neglectful acts alleged by the plaintiff are professional in nature and thereby put the case squarely within the MICRA limitations. For obvious reasons, the acute care facilities and the insurance companies subscribe wholly to this point of view as well. Educating these players and shifting their paradigm of thought can often be the largest hurdle in the case and often requires patience and an in depth review of the standard catalog of EADACPA case law.

The application of EADACPA against acute care facilities fits squarely under the existing case law, statutory language, and jury instructions. Indeed, EADACPA itself includes a broad list of facilities to which the Act applies, making no distinction between skilled nursing facilities and acute care facilities. Welfare and Institutions Code Section 15610.17 states in part:

"Care custodian" means an administrator or an employee of any of the following public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff:

(a) Twenty-four-hour health facilities, as defined in Sections

1250, 1250.2, and 1250.3 of the Health and Safety Code.

Health and Safety Code Section 1250 includes "general acute care hospital," as well as "skilled nursing facility," providing a solid basis for the argument that EADACPA applies equally to the acute care setting.

Similarly, the CACI Jury Instructions regarding EADACPA make no distinction between dependent adult abuse in a skilled nursing facility and dependent adult abuse in the acute care setting. Notably, CACI 3103 specifically provides for a cause of action against a health care provider for custodial neglect without regard to the type of facility:

[Name of plaintiff] claims that [he/she/[name of decedent]] was neglected by [name of defendant] in violation of the Elder Abuse and Dependent Adult Civil Protection Act. To establish this claim, [name of plaintiff] must prove all of the following:

  1. That [name of defendant] had care or custody of [name of plaintiff/decedent];
  2. That [name of plaintiff/decedent] was [65 years of age or older/a dependent adult];
  3. That [name of defendant] failed to use the degree of care that a reasonable person in the same situation would have used by [insert one or more of the following:]
    [failing to assist in personal hygiene or in the provision of food, clothing, or shelter;]
    [failing to provide medical care for physical and mental health needs;]
    [failing to protect [name of plaintiff/decedent] from health and safety hazards;]
    [failing to prevent malnutrition or dehydration;]
    [insert other grounds for neglect;]
  4. That [name of plaintiff/decedent] was harmed; and
  5. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff/decedent]'s harm.
    CACI Instruction 3105, which relates to enhanced remedies under EADACPA, also makes no distinction as to where the alleged abuse took place.
    [Name of plaintiff] claims that [he/she/[name of decedent]] was neglected by [name of defendant]'s employee(s) in violation of the Elder Abuse and Dependent Adult Civil Protection Act and that [name of defendant] is responsible for that harm. To establish this claim, [name of plaintiff] must prove all of the following by clear and convincing evidence:
  1. That [name of defendant] had care or custody of [name of plaintiff/decedent];
  2. That [name of plaintiff/decedent] was [65 years of age or older/a dependent adult];
  3. That one or more of [name of defendant]'s employees failed to use the degree of care that a reasonable person in the same situation would have used by [insert one or more of the following:]
    [failing to assist in personal hygiene or in the provision of food, clothing, or shelter]; [failing to provide medical care for physical and mental health needs]; [failing to protect [name of plaintiff/decedent] from health and safety hazards]; [failing to prevent malnutrition or dehydration]; [insert other grounds for neglect;]
  4. That the employee[s] acted with [recklessness/malice/oppression/fraud];
  5. That [name of plaintiff/decedent] was harmed;
  6. That the employee['s][s'] conduct was a substantial factor in causing [name of plaintiff/decedent]'s harm; and
  7. [Insert one or more of the following:]

    [That the employee[s] [was/were] [an] officer[s], [a] director[s], or [a] managing agent[s] of [name of defendant] acting in [a corporate/an employment] capacity;] [or]
    [That an officer, a director, or a managing agent of [name of defendant] had advance notice of the unfitness of the employee[s] and employed [him/her/them] with a knowing disregard of the rights or safety of others;] [or]
    [That an officer, a director, or a managing agent of [name of defendant] authorized the employee['s][s'] conduct;] [or]
    [That an officer, a director, or a managing agent of [name of defendant] knew of the employee['s][s'] wrongful conduct and adopted or approved the conduct after it occurred.]

An employee is a "managing agent" if he or she exercises substantial independent authority and judgment in his or her corporate decision making so that his or her decisions ultimately determine corporate policy.

As noted above and discussed more thoroughly below, these jury instructions do not change simply because the abuse happened to occur in an acute care facility. Nevertheless, despite the statutory language, the jury instructions, and the case law, it is often quite challenging to explain this to defense counsel.

Custodial Neglect in an Acute Care Facility

As noted above, a major step in a dependent adult abuse case against an acute care facility is educating the various players that the neglectful acts at issue are custodial in nature, rather than professional. There is only one case, Marron v. Superior Court (2003) 108 Cal.App.4th 1049, which specifically addresses custodial neglect in an acute care facility. Even more specifically, the Marron case discusses dependent adult neglect in an acute care facility. In Marron, the plaintiff sued defendant UCSD Medical Center for custodial neglect for failure to diagnose an infection while decedent, a 44-year old dependent adult, was a patient in defendant's hospital, in part due to chronic understaffing of the hospital. The court held that evidence of the hospital's neglect in failing to diagnose and treat the infection was sufficient to constitute custodial abuse under Welfare and Institutions Code '15610 et seq. (Id. at 1068.). In other words, the court found that a failure to diagnose an infection due to understaffing was sufficiently custodial in nature. Plaintiff was not bound by MICRA.

Notably, the facts in Marron are vastly different then the more "typical" decubitus ulcer fact pattern seen in seminal EADACPA cases, such as Covenant Care and Delaney. These cases, however, are useful to dispel the defense argument that the development of a decubitus ulcer cannot rise to the level of custodial neglect under Welfare and Institutions Code '15610 et seq. In all three cases the courts held that the development of a decubitus ulcer was sufficient to constitute custodial neglect. For example, the Covenant Care case dealt with the development of a Stage IV pressure ulcer. Plaintiffs in that case alleged that the decedent "was left lying in his bed, unattended and unassisted for excessively long periods of time; ... he developed ulcers on his body that exposed muscle and bone and became septic." (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 772.) The court held that under those facts, the plaintiffs had sufficiently alleged a cause of action under Welfare and Institutions Code '15610 et seq.

In Delaney, plaintiffs alleged that the health care providers allowed the decedent's serious pressure ulcers to occur and worsen. It was also alleged that there were violations of medical monitoring and that plaintiff was not adequately turned and was neglected. (Delaney v. Baker (1999) 20 Cal.4th 23, 27-28.) Based on these allegations, the court stated that there "was substantial evidence that defendant's failed, over an extended period of time, to attend to her advanced bedsores, and otherwise neglected her in such a way to contribute to her pain and suffering and eventual death, which was determined to be reckless, given defendants' knowledge of decedent's deteriorating condition and plaintiff's repeated efforts to intervene in her mother's behalf." (Id. at 41.)

And another seminal case on elder abuse, Mack v. Soung (2000) 80 Cal.App.4th 966, also involved the development of a decubitus ulcer. In this case as well, the court found that plaintiffs had sufficiently alleged a cause of action for custodial neglect under Welfare and Institutions Code '15610 et seq.

Many times, a decubitus ulcer case against an acute care facility will contain facts that are nearly identical to the facts identified these three cases. Though this may seem obvious, point this out the defense attorneys. Draw the logical conclusion - as in the cases discussed above, the acts and omissions of the defendant hospital that resulted in the development of decubitus ulcers constitute custodial neglect under Welfare and Institutions Code '15610 et seq.

Recklessness in an Acute Care Facility

A. Defining Recklessness:
Recklessness is defined in CACI 3113 as follows:

[Name of defendant] acted with "recklessness" if [he/she] knew it was highly probable that [his/her] conduct would cause harm and [he/she] knowingly disregarded this risk

While this definition is instructive in preparing a case for trial, a plaintiff's attorney may propose a slight variation of this definition when submitting jury instructions. Specifically,

Defendants acted with "recklessness" if they knew or should have known from the facts known to them that there was a strong probability that its conduct would cause harm, even though they hoped or even expected that their conduct would prove harmless.

Arguably, CACI 3113 does not accurately reflect the current law on recklessness. Rather, CACI 3113 provides a definition that is essentially the same as the instruction on malice, which requires a willful and knowing disregard of the rights or safety of another, described as when a person is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences. (See CACI 3114 B although the CACI jury instruction on malice also includes a reference to "despicable conduct," the remainder of the instruction is equivalent to the CACI instruction for recklessness.) Because the legislature clearly intended that the enhanced remedies of dependent adult abuse be available when the defendant has been guilty of recklessness or malice, CACI 3113 is clearly not a correct statement of the current law on recklessness, as it forces the plaintiff to prove a higher level of culpability than is required under the current case law. As discussed below, courts have acknowledged a clear distinction between "intentional" and "reckless" based on the degree of foreknowledge or belief that a result will occur. Consequently, plaintiff's counsel may serve his client well by submitting the above variation, which reflects the distinction recognized by courts.

This proposed definition of "recklessness" is supported by the Restatement Second of Torts' definition of "intent" and distinction between "intentional misconduct" and "recklessness," as discussed in great detail in Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715, 742. The Restatement uses "intent" to denote that an act's consequences are desired or believed to be substantially certain to result. (Rest.2d Torts, ' 8A.) "As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor's conduct loses the character of intent, and becomes mere recklessness . . .." (Rest.2d Torts, supra, '8A, com. b.) Recklessness does not necessarily require actual foreknowledge of the harmful consequences of particular acts. Rather, it is enough that a reasonable person would have recognized the aggravated risk, as a merely reckless person lacks subjective awareness of the near certainty of harm. (Id. at com. a.) "While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless." (Shell, supra, 12 Cal.App.4th at 742.)

Thus, where the actor knows that the harmful consequences are substantially certain to result, and proceeds with the act anyway, the law treats the actor as if the result was desired. This is intentional conduct (akin to malice under CACI 3114). (Rest.2d Torts, supra, ' 8A, com. b.) If, however, the actor does not intend to cause the harm which results from it, but realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless, this is reckless conduct. (Shell Oil Co., supra, 12 Cal.App.4th at 742.) This definition is not currently reflected in CACI 3113 on recklessness.

B. Proving Recklessness:
As in a skilled nursing facility, reckless conduct certainly occurs in the acute care setting and in many of the same ways, such as poor training and understaffing. Below is a short outline of specific areas of potentially reckless conduct that plaintiffs' attorneys should watch for in a dependent adult abuse case against an acute care facility.

Decubitus Ulcer Cases:

  • Failure to follow policies and procedures: The policies and procedures from an acute care facility often provide a wealth of information. Make the effort and take the time to fully familiarize yourself with the hospital's policies and procedures regarding patient care, skin care, wound prevention and wound care, lift teams, beds and mattresses and any other policies which may affect the care that was provided to your client. In depositions, ask each nurse, wound nurse and supervisor about his or her familiarity with the policies and procedures. Look through the medical records carefully. It is quite likely that the care provided to your client grossly failed to meet the hospital's own policies and procedures on numerous occasions, and, in fact, the care providers were not even familiar with the policies and procedures. Regularly, nurses fail to request a consultation when it is required; skin assessments are not completed on a regular basis; wounds are not cared for as required by the policies and procedures; and charting is wholly inadequate pursuant to the policies. Ask your expert and you may very well learn that had the hospital followed its own policies, the injury most likely would not have occurred. Failure to follow policies and procedures and failure to insure that the nursing staff is familiar with the policies and procedures constitutes recklessness, in that the individuals involved knew that there was a high probability that this conduct would cause harm and knowingly disregarded this risk.
  • Failure to properly train nurses: The nurses' failure to understand and have knowledge of the hospital's policies and procedures is one example of a failure to properly train the nursing staff. Independent of the policies and procedures, you may also discover that the nurses do not have a complete understanding of skin care and wound prevention. Their provision of care may fall below the standard of care. As in cases against skilled nursing facilities, request and review the in-service training offered by the hospital.
  • Failure to provide adequate staffing levels: As in a skilled nursing facility, and acute care facility will also sacrifice adequate staffing levels for budgetary concerns. You may find that your client required three people to turn him, but that it was difficult, if not impossible, to find three available people in the ICU to perform this repositioning every two hours. Hospitals also often employ Wound, Ostomy, and Continence nurses ("wound nurse"). While there is no legal staffing requirement for wound nurses, the hospital itself may have budgeted for one or more wound nurses and determined a medical need for one or more wound nurses. Yet, despite this determination, the hospital may fail to staff at this level.
  • Failure to place a patient on the correct bed or mattress and/or false reliance on a mattress: A major, recurring issue in these cases is the bed and/or mattress on which the patient was placed. Certain beds and mattresses are used for lung therapy, others are recommended for pressure-relief and pressure-reduction. Hospitals and their staff often confuse the two. Many of these beds and mattress overlays rotate the patient from side to side. Many nurses mistakenly believe that this constitutes repositioning and record such repositioning in the medical chart. This is incorrect and illustrates, again, the poor training provided to nursing staff. Many experts will explain that bed rotation is not a replacement for manual repositioning every two-hours.

Fall Cases:

  • Failure to follow policies and procedures: As in decubitus ulcer cases, the policies and procedures from an acute care facility regarding fall risk assessment and fall interventions often provide a wealth of information. Request and review these policies and pay close attention to the specific fall interventions that should have been in place for your client. Often, these fall interventions include specially colored arm-bands, one-hour checks, signs posted on the door, and other non-restrictive, basic steps that should have been taken by the hospital. Also, think about other potentially relevant policies and procedures. Did the nurse give call-light instructions to a patient who could not hear or did not understand English? Was the patient on Lasix or another diuretic? Of course, in depositions, ask each defense witness about his or her familiarity with the policies and procedures and whether they had been followed for your client. Failure to follow policies and procedures and failure to insure that the nursing staff is familiar with the policies and procedures constitutes recklessness, in that the individuals involved knew that there was a high probability that this conduct would cause harm and knowingly disregarded this risk.
  • Failure to properly train nurses: Again, the failure to train nurses regarding fall risk and fall prevention can establish recklessness. Usually, there is one person in the hospital, such as the director of staff development, who is responsible for scheduling in-service, on-going training. Ask for the in-service training records to determine when the last class was offered regarding falls and who attended this class.
  • Failure to provide adequate staffing levels: Insufficient staff may also be intimately related to fall cases. Simply, a call-light does no good if there is no one available to answer it. Many fall cases involve a patient who attempts to request help by using the call button. After waiting 30 minutes or an hour or more, the patient eventually gives up waiting and decides to transfer him or herself and falls.
  • Failure to maintain and service bed and chair alarms: Some facilities may use bed or chair alarms for patients who are particularly at high risk for falls. Unfortunately, there may not be a regular schedule to service these alarms or check the batteries. If such an alarm was being used, ask to see the service schedule and notice the deposition of the person responsible for maintaining the alarms.

Managing Agent in an Acute Care Facility

The final element to prove in a dependent adult abuse case seeking enhanced remedies (see CACI 3105 above) is that a managing agent knew of, ratified, or is personally guilty of the reckless conduct. In an acute care facility, look to who created the policies and procedures, who was responsible for insuring that the nursing staff knew, understood and applied the policies and procedures, who decided the staffing levels for the units on which your client was a patient, who trained the staff on the proper use of alarms, fall precautions, and call lights, etc.

Helpfully, the only published opinion that discusses the element of managing agent is Marron, which, as noted above, is a dependent adult abuse case against an acute care facility. The court in Marron found that a nursing supervisor in a hospital is a managing agent. (See Marron, supra, 108 Cal.App.4th 1049).

When alleging facts against a managing agent, it is very important to name the managing agent's employer as a defendant. This seems obvious, but is worth the additional caution, as many times a managing agent may be employed by the corporate owner, rather than the acute care facility where the patient is being treated. Because this information may only be obtained through discovery, be prepared to name the managing agent's employer as a Doe defendant as that information becomes available.

Conclusion

While the application of EADACPA to dependent adults in the acute care setting is seemingly straightforward, the defense bar is expectedly resistant. Plaintiffs' attorneys must be persistent and consistent in their education of the defense bar. By turning to the existing case law, utilizing CACI Instructions, and relying on the language of the Elder and Dependent Adult Abuse Act, defense counsel must be shown that the law provides for dependent adult abuse cause of action in any setting.

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