Incompetent or Inconsistent Care Not Enough Under Elder Abuse Act, California Appellate Court Holds; Plaintiff Must Allege Specific Facts to Support Claim

Recently, the California Court of Appeal addressed whether a plaintiff in a lawsuit involving claims for willful misconduct and elder abuse had pled sufficient facts to support these causes of action.  In this unpublished opinion, the court stated that while the plaintiff pled sufficient facts to support a cause of action for negligence, he had not alleged the specific mental state of the defendant necessary for his other claims.

legal nursing neglect

Plaintiff Leonard Thomas was an elderly man admitted to a skilled nursing facility under the control of defendant Country Villa Service Corporation (“CV Corporation”).  After staying at the facility for seven weeks, Mr. Thomas developed pressure sores and other medical issues, including a urinary tract infection and loss of weight.  Mr. Thomas brought a lawsuit against CV Corporation, alleging negligence, willful misconduct, elder abuse, and fraud.

Procedurally, the trial court sustained CV Corporation’s demurrer to all but the negligence claim, and then it granted summary judgment on the negligence claim that survived the demurrer. The court dismissed in favor of CV Corporation. Then, Mr. Thomas died, and his successor in interest, Bertha Thomas, appealed.  The issue on appeal was whether other causes of action against CV Corporation should have withstood the demurrer.  Those causes of action were based on the same set of facts as the negligence claim, but they included allegations that CV Corporation’s conduct was willful, fraudulent, reckless, malicious, and oppressive.

The court held that misconduct, fraud, and violations of the Elder Abuse Act must be pled by specific facts.  Here, those facts were not in the complaint, and while the plaintiff alleged that “defendants and each of them” acted with the required culpability, a negligence action cannot be transformed into more.

The court stated that to bring a tort claim for willful misconduct, the plaintiff must show actual or constructive knowledge of the danger, knowledge that injury from the danger is probable, and a failure to act to avoid the peril.  In other words, willful misconduct is more than failing to use ordinary care. It includes positive intent to harm, or intent to act with disregard of consequences. Finally, there must be specific facts upon which the cause of action for willful misconduct is based.

To allege a violation of the Elder Abuse Act, the plaintiff must set forth facts showing the defendant physically abused, neglected, or financially abused an individual 65 or older, and the defendant was reckless, oppressive, or had malice in committing such abuse.  The law further defines “neglect” as the failure of any person entrusted with the care or custody of an elder to use care that a reasonable person in a similar situation would use.  Examples include failing to assist with personal hygiene or food, clothing, or shelter, failing to provide medical care, and failing to protect from health hazards.

To allege negligence under the Elder Abuse Act, the court stated the plaintiff must allege (and later show by clear and convincing evidence) that the defendant was responsible for meeting the basic needs of the elder, knew of conditions making the elder unable to provide for those needs, and denied or withheld services, knowing that an injury was substantially certain. The plaintiff must also prove that the neglect caused pain, physically or mentally.

Here, the court stated that the plaintiff did not demonstrate CV Corporation denied Mr. Thomas care knowing that an injury was substantially certain, or that CV Corporation consciously failed to act to avoid a probable danger of an injury.  For example, the court stated the complaint made clear that Mr. Thomas’ bed sores were recognized and reported to a physician, but the treatment orders were not always followed.  This allegation is not enough to show a conscious or intentional failure to avoid harm to Mr. Thomas.  The court held that Mr. Thomas had not pled specific factual allegations that showed the defendant had the required mental state of recklessness, at the least.

The court stated that Mr. Thomas disclaimed any desire to amend his operative complaint, nor had he shown how he would amend to state a valid cause of action. The trial court therefore did not abuse their discretion in denying leave to amend.

Nursing home abuse can occur when individuals take advantage of those who cannot take care of themselves.  At Sharifi Firm, PLC, we work vigorously to hold those who have abused the elderly accountable for their actions.  If you or a loved one has been a victim, you may qualify for financial compensation. Call us today at (323) 848- 9904 to schedule a free consultation to discuss your case with a California nursing home abuse lawyer.

More Blog Posts:

California Court of Appeals Sides With Hospital in Fall Case, Southern California Injury Lawyer Blog, February 10, 2015

California Court Affirms Judgment in Favor of City Because Injured Plaintiff Had Not Sufficiently Pled Facts Showing City’s Duty to Light Crosswalk, Southern California Injury Lawyer Blog, August 18, 2016

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