In Fenimore v. The Regents of the University of California, 2016 Cal. App. LEXIS 231, the Second District Court of Appeal held that allegations that a hospital was understaffed at the time an elderly patient fell, that the understaffing caused the patient’s harm, and that this understaffing was part of a pattern and practice, is sufficient to plead a viable theory of Elder Abuse based on recklessness.
In Fenimore, Plaintiff sued a hospital for, among other things, Elder Abuse under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code § 15600 et seq.). The trial court sustained the hospital’s demurrer to the Elder Abuse cause of action, relying on Worsham v. O’Connor Hospital, et al. (2014) 226 Cal. App. 4th 331, to hold the understaffing allegations did not amount to reckless neglect under the Elder Abuse Act. The Court of Appeal reversed and remanded with directions to enter a new order overruling the demurrer. The Court of Appeal concluded that the Complaint stated at least one viable theory of Elder Abuse based on recklessness.
Under the Elder Abuse Act, abuse of an elder or dependent adult may take several forms, including neglect and the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. Neglect means the 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.
The Elder Abuse Act provides for heightened remedies when the plaintiff proves by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of neglect. The heightened remedies available under the Elder Abuse Act do not apply to acts of professional negligence. Hence, the Act does not provide liability for simple or gross negligence by health care providers. Plaintiffs must plead and prove something more than negligence – that is, reckless, oppressive, fraudulent, or malicious conduct. Recklessness is 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. 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.
In Fenimore, Plaintiff alleged the hospital violated state regulations regarding staffing, that the hospital had a pattern and knowing practice of improperly understaffing to cut costs, and had the hospital been staffed sufficiently, Plaintiff would have been properly supervised and would not have suffered injury. The Court of Appeal found that a violation of staffing regulations at an acute psychiatric hospital may provide a basis for finding neglect under the Elder Abuse Act because such a violation could constitute a negligent failure to exercise the care that a similarly situated reasonable person would exercise. If a care facility knows it must provide a certain type of care on a daily basis, but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference. Recklessness may be inferred when the neglect recurs in a significant pattern.
The Fenimore Court distinguished the applicability of Worsham, which held general allegations of understaffing are insufficient to plead a cause of action for Elder Abuse, by finding that Fenimore alleged more than simple understaffing. The operative Complaint identified the staffing regulation the hospital allegedly violated and suggested a knowing pattern of violating it constituted recklessness. A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility’s elderly and dependent patients, as qualitatively different than simple negligence. Thus, the Court of Appeal could not say as a matter of law that the hospital should escape liability for reckless neglect. The trier of fact would decide whether a knowing pattern and practice of understaffing in violation of applicable regulations amounted to recklessness.
This ruling makes it easier for plaintiffs to get past the initial pleading stage on an Elder Abuse cause of action by simply citing specific state regulations of understaffing and alleging a knowing pattern of understaffing. Unfortunately, more claims for Elder Abuse will likely now survive a demurrer challenge.
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