Torts – Standard for Elder Abuse v. Professional Negligence

by Low, Ball & Lynch

Gregory Worsham v. O’Connor Hospital, et. al.
Court of Appeal, Sixth District (May 20, 2014)

The Elder Abuse Act (“Act”) does not apply to simple or gross negligence by health care providers.  This case considered whether the level of training and staffing of a medical facility falls under the Act.
Juanita Worsham (“Worsham”), plaintiff’s mother, entered O’Connor Hospital (“O’Connor”) on July 31, 2010 to undergo hip surgery to treat a fractured hip she suffered as a result of falling in her home.  Following surgery, Worsham was discharged to O’Connor’s “Transitional Care Unit” (“the Unit”) for rehabilitative care.  On August 20, 2010, Worsham fell at the Unit, breaking her right arm and re-breaking her hip.  Her complaint alleges violation of the Act and professional negligence, asserting that the Unit was understaffed and undertrained, and that the lack of sufficient well-trained staff caused her fall.
O’Connor demurred to the complaint and the court sustained the demurrer without leave to amend on the ground that Worsham failed to plead sufficient facts regarding O’Connor’s understaffing and under-training.  Worsham dismissed the remaining cause of action for negligence, and judgment was entered in favor of O’Connor.  Worsham appealed.
Elder abuse claims arise under the Elder Abuse Act found in Welfare and Institutions Code sections 15600 et seq.  “The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘person residing in this state, 65 years of age or older.’”  (Welf. & Inst. Code, § 15610.27.)  In particular, a plaintiff who proves ‘by clear and convincing evidence’ both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of such abuse may recover attorneys’ fees and costs.  (Id., § 15657, subd. (a).)  On the same proof, a plaintiff who sues as the personal representative or successor in interest of a deceased elder is partially relieved of the limitation on damages imposed by Code of Civil Procedure section 377.34 and may recover damages for the decedent’s pre-death pain and suffering.  (Welf. & Inst. Code, § 15657, subd. (b).)” (Carter v. Prime Health Care Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404).
The Act does not apply to simple or gross negligence by health care providers.  (Delaney v. Baker (1999) 20 Cal.4th 23, 28.)  In reviewing the Act’s provisions on reckless conduct and professional negligence (§§ 15657 & 15657.2), the Delaney court concluded that “ ‘reckless neglect’ under section 15657 is distinct from causes of action ‘based on ... professional negligence’ within the meaning of section 15657.2.”  (Delaneysupra, 20 Cal.4th at p. 31.)
The Court of Appeal upheld the trial court’s ruling.  The Court noted the allegations concerned O’Connor’s alleged negligent undertaking of medical services, rather than a failure of those responsible for attending to Worsham’s basic needs and comforts to carry out their custodial or caregiving obligations.  According to the 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.  Plaintiff alleged that O’Connor was chronically understaffed, and did not adequately train the staff it did have.
Plaintiff further alleged that O’Connor was aware that Worsham had a risk of falling, and failed to have the proper staffing in place to prevent her fall.  As a result of O’Connor’s insufficient staffing, Worsham suffered a fall that resulted in a broken arm and a re-break of her right hip.  The Court found the allegations in the complaint were not sufficient to render O’Connor’s conduct in failing to provide adequate staffing anything more than professional negligence.  The Court noted that the allegations, if true, demonstrate O’Connor’s negligence in the undertaking of medical services, not a “fundamental ‘[f]ailure to provide medical care for physical and mental health needs.’”  (Delaneysupra, 20 Cal.4th at p. 34.)
Worsham argues O’Connor should have provided a “sitter” to ensure she did not fall, and that her doctor recommended that a sitter be provided.  However, this allegation, like that of understaffing and under-training, amounts to professional negligence.  Absent specific facts indicating at least recklessness, any failure to provide adequate supervision would constitute professional negligence but not elder abuse. (see Delaneysupra, 20 Cal.4th at p. 35 [elder abuse requires at least recklessness].)
Elder Abuse constitute a growing body of claims and law.  The California Supreme Court’s explanation of the Elder Abuse Act in Delaney v. Baker continues to be interpreted.  This case makes clear that these claims must be pled with particularity, and that many claims against medical facilities for inadequate training or staffing will fall under professional negligence, rather than elder abuse. 
For a copy of the complete decision, see:


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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