In California There Are Very Strict Pleading Requirements In Elder Abuse Cause of Actions

The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Act) permits “private, civil enforcement of laws against elder abuse and neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) The Act provides enhanced remedies to a plaintiff who proves “by clear and convincing evidence” that a defendant committed physical abuse or neglect of a person 65 years of age or older and that the defendant acted with “recklessness, oppression, fraud, or malice” in the commission of such abuse or neglect. (Welf. & Inst. Code, § 15657.)
Under the Act, neglect is “[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.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1).) “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. . . . [¶] (3) Failure to protect from health and safety hazards. [¶] (4) Failure to prevent malnutrition or dehydration. . . .” (Id. at § 15610.57, subd. (b) (1)-(4).) The “statutory definition of `neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care. [Citation.]” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) Consequently, the Act does not apply to negligent acts in the rendition of medical care. (Delaney v. Baker, supra, 20 Cal.4th at p. 34.)
To establish a defendant’s culpability, “a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder. [Citations.]” (Carter v. Prime Healthcare Paradise Valley LLC, supra, 198 Cal.App.4th at p. 405.) Recklessness, although not defined in the Act, has been interpreted as “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[.]” (Delaney v. Baker, supra, 20 Cal.4th at p. 31.) “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.’ [Citation.]” (Id. at pp. 31-32.) “Oppression, fraud and malice `involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature.’ [Citation.]” (Carter, at p. 405, quoting Delaney, at p. 31.)
In summary, to plead a cause of action for elder abuse under the Act based on neglect, a plaintiff must allege facts establishing that the defendant: “(1) had responsibility for meeting the basic needs of the elder or dependent adult,” including medical care; “(2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs”; and “(3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain . . . or with conscious disregard for the high probability of such injury . . . .” (Carter v. Prime Healthcare Paradise Valley LLC, supra, 198 Cal.App.4th at pp. 406-407.) A plaintiff also must allege facts demonstrating that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering such that the causal link between the neglect and injury is specifically alleged. (Id. at p. 407.)
In addition, to pursue a cause of action against an employer based on the acts of one or more employees, a plaintiff must plead facts that would permit imposition of punitive damages against an employer as specified in Civil Code section 3294, subdivision (b). (Welf. & Inst. Code, § 15657, subd. (c).) Such facts are that (1) “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 (2) the employer “authorized or ratified the wrongful conduct”; and (3) the employer’s conduct was “on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)
The PECK LAW GROUP specializes in personal injury matters relating to Serious and Catastrophic Injury, Nursing Home Abuse and Neglect, Bed Sores, Decubitus Ulcers, and Pressure Sores, Medical Malpractice, Surgery Errors, Traumatic Brain Injury, Birth Injury and Wrongful Death that are determined to be a breach of the standard of care.  Our experts and our attorneys have superior knowledge and know how in handling these type of matters from inception to Trial if need be.  You will receive superior representation and of course the best possible result based upon our know how and expertise.

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