In Worsham v. O’Connor Hospital, et al., 2013 WL 2085555, plaintiff sued O’Connor Hospital for Elder Abuse and Negligence relating to a fall and resulting broken arm and hip she suffered while a patient at O’Connor Hospital’s Transitional Care Unit for rehabilitative care. The basis of Ms. Worsham’s claim was that O’Connor’s Transitional Care Unit was understaffed and under-trained, and the lack of sufficient well-trained staff caused Ms. Worsham’s fall. O’Connor demurred to plaintiff’s Elder Abuse cause of action multiple times and the trial court ultimately sustained the demurrer, without leave to amend, on the basis that plaintiff failed to plead sufficient facts regarding O’Connor’s understaffing and under-training. Plaintiff dismissed the Negligence cause of action and appealed the sustaining of the demurrer to the Elder Abuse cause of action.
In a favorable decision for the defense of Elder Abuse claims, the Sixth District Court of Appeals upheld the trial court’s ruling and confirmed that bare allegations of understaffing and under-training are insufficient to meet the requirement that Elder Abuse be plead with particularity. The appellate court found that 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. 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. The appellate court further noted that the Elder Abuse Act does not apply to simple or gross negligence by health care providers, but only applies to instances where there is clear and convincing evidence of reckless, oppressive, fraudulent, or malicious conduct.
The appellate court then reasoned that the allegations in the present case concern O’Connor’s alleged negligent undertaking of medical services, rather than a failure of those responsible for attending to Ms. Worsham’s basic needs and comforts to carry out their custodial or caregiving obligations. According to the operative complaint, O’Connor was required to maintain specific staff-to-patient ratios to address the needs of patients and to ensure compliance with state and federal law. It was alleged that O’Connor was chronically understaffed, and did not adequately train the staff it did have. The allegations include the fact that O’Connor was aware that Ms. Worsham had a risk of falling, and failed to have the proper staffing in place to prevent Ms. Worsham’s fall. Allegedly, as a result of O’Connor’s insufficient staffing, Ms. Worsham suffered a fall that resulted in a broken arm and a re-break of her right hip.
The appellate court held that the allegations in the operative complaint were not sufficient to render O’Connor’s conduct in failing to provide adequate staffing anything more than professional negligence. The allegations, if true, demonstrate O’Connor’s negligence in the undertaking of medical services, not a “fundamental failure to provide medical care for physical and mental health needs.” Absent specific facts indicating at least recklessness, any failure to provide adequate supervision would constitute professional negligence, but not Elder Abuse.
Complaints alleging Elder Abuse are almost always riddled with allegations of understaffing and under-training as the basis for the claim. This ruling will require plaintiffs to set forth specific facts indicating at least recklessness as opposed to the bare allegations of understaffing and under-training that are typically contained in such complaints. This is a favorable ruling for the defense and can hopefully be used to eliminate improper claims for Elder Abuse at the demurrer stage.
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