In its July 12, 2018 unreported opinion, the Court of Appeal of the State of California Fourth Appellate District Division Three (“California Appellate Court”) ruled that the choking death of a Nursing home resident who was given the wrong meal was not “elder abuse” because there was “no substantial evidence that defendants acted recklessly,” stating in support of its ruling, “there was evidence showing there was a failure of communication somewhere along the way, such that the kitchen staff provided the wrong meal and the nursing staff failed to notice the discrepancy, but there is no evidence that the miscommunication was intentional or born of callous indifference.”

California’s Elder Abuse Act

Pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.), heightened remedies are available to plaintiffs who successfully sue for dependent adult abuse. Where it is proven by clear and convincing evidence that a defendant is liable for neglect or physical abuse, and the plaintiff proves that the defendant acted with recklessness, oppression, fraud, or malice, a court shall award attorney fees and costs. Additionally, a decedent’s survivors can recover damages for the decedent’s pain and suffering.

The Elder Abuse Act requires proof of either physical abuse or neglect, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. (Welf. & Inst. Code, § 15657.) Welfare and Institutions Code section 15610.57 includes both a general definition of “neglect” and specific examples. The general definition is: “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 statute then provides that neglect includes, but is not limited to, (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.

“Recklessness” involves deliberate disregard of the high degree of probability that an injury will occur and rises to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it. Recklessness refers to a subjective state of culpability greater than simple negligence. Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions. To obtain the Elder Abuse Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.

In the case it was deciding, the California Appellate Court stated that assuming the jury credited the plaintiff’s expert’s testimony that one or two additional staff members should have been present when the resident was eating his dinner in his room, there is no evidence the understaffing was reckless. In particular, there is no evidence that defendants should have known that one or two additional staff members was the difference between life and death.

The Califirnia Appellate Court further stated that a slight understaffing at the defendant nursing home, without any indication that it created an imminent risk of harm, does not amount to recklessness, and that there is no evidence in the record that a lack of training caused the resident’s death (“There is nothing in the record to suggest that an additional educational program on choking prevention would have changed anything. Nor, more importantly, did defendants have any reason to believe the lack of a choking program presented an imminent risk of death, such that the failure to ensure licensed nurses attended a program was reckless. The failure to require licensed nurses to attend a choking program that year was, at most, negligent.”).

The California Appellate Court found that the nursing home negligence jury could certainly find that more frequent monitoring of the resident was warranted, but 19 minutes is not egregious (the defendant’s nurse was unaware the resident had received the improper food and therefore had no reason to believe the resident was in imminent danger of choking): “[t]here is simply nothing in this record to suggest the staff was acting with callous indifference.”

The California Appellate Court further found “there is no evidence [the resident] was intentionally given the wrong diet or that the staff was indifferent to [the resident’s] swallowing difficulty. On the contrary, the evidence shows that when the staff initially noticed [the resident] struggling, they moved promptly to address the issue. Ultimately, there was evidence showing there was a failure of communication somewhere along the way, such that the kitchen staff provided the wrong meal and the nursing staff failed to notice the discrepancy, but there is no evidence that the miscommunication was intentional or born of callous indifference.”

Source Cochrum v. Costa Victoria Healthcare, LLC CA4/3.

If you or a loved one suffered harm while a resident of a nursing home in California or in another U.S. state due to nursing home abuse, nursing home neglect, nursing home negligence, nursing home understaffing, or the failure to provide appropiate care for a vulnerable adult, you should promptly find a nursing home claim lawyer in California or in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.

Click here to visit our website to be connected with medical malpractice attorneys (nursing home claim attorneys) in your U.S. state who may assist you with your nursing home claim, or call us toll-free in the United States at 800-295-3959.

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