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Elder Abuse in Acute Care Facilities


Education is the name of the game when it comes to bringing a cause of action based on the Elder Abuse and Dependant Adult Civil Protection Act ("Elder Abuse Act" or "EADACPA") (Welfare & Inst. Code § 15600, et seq.) against an acute care facility. Plaintiffs' attorneys must be prepared to educate the defense attorneys, the acute care facilities, the insurance companies, and even the courts that elder abuse is elder abuse, whether it occurs in an intensive care unit in a prestigious hospital or skilled nursing facility with a history of citations. Indeed, the same types of injuries that we see in nursing homes, such as stage IV decubitus ulcers, occur in ICUs and are caused by the same type of reckless omissions, such as failure to reposition and assess skin condition.

These cases have met tremendous resistance from the defense bar, who greatly fear the opening of the floodgates. Defense attorneys, many whom come from a medical malpractice background, argue vigorously that the neglectful acts alleged by the plaintiff are professional in nature and thereby put the case squarely within the MICRA limitations. For obvious reasons, the acute care facilities and the insurance companies subscribe wholly to this point of view as well. Educating these players and shifting their paradigm of thought can often be the largest hurdle in the case and often requires patience and an in depth review of the standard catalog of elder abuse case law.

The application of the Elder Abuse Act against acute care facilities fits squarely under the existing case law, statutory language, and jury instructions. Indeed, the Elder Abuse Act itself includes a broad list of facilities to which the Act applies, making no distinction between skilled nursing facilities and acute care facilities. Welfare and Institutions Code Section 15610.17 states in part:

"Care custodian" means an administrator or an employee of any of the following public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff:

(a) Twenty-four-hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

Health and Safety Code Section 1250 includes "general acute care hospital," as well as "skilled nursing facility," providing a solid basis for the argument that the Elder Abuse Act applies equally to the acute care setting.

Similarly, the CACI Jury Instructions on Elder Abuse make no distinction between elder abuse in a skilled nursing facility and elder abuse in the acute care setting. Notably, CACI 3103 specifically provides for a cause of action against a health care provider for custodial neglect without regard to the type of facility:

[Name of plaintiff] claims that [he/she/[name of decedent]] was neglected by [name of defendant] in violation of the Elder Abuse and Dependent Adult Civil Protection Act. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] had care or custody of [name of plaintiff/decedent];

2. That [name of plaintiff/decedent] was [65 years of age or older/a dependent adult];

3. That [name of defendant] failed to use the degree of care that a reasonable person in the same situation would have used by [insert one or more of the following:]

[failing to assist in personal hygiene or in the provision of food, clothing, or shelter;]

[failing to provide medical care for physical and mental health needs;]

[failing to protect [name of plaintiff/decedent] from health and safety hazards;]

[failing to prevent malnutrition or dehydration;]

[insert other grounds for neglect;]

4. That [name of plaintiff/decedent] was harmed; and

5. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff/decedent]'s harm.

CACI Instruction 3105, which relates to enhanced remedies under the Elder Abuse Act, also makes no distinction as to where the alleged abuse took place.

As Peter Lomhoff neatly presented at the recent CANHR conference in Monterey, an elder abuse cause of action seeking enhanced remedies can be boiled down to a simple formula:
   Custodial neglect, etc.
+ Malice, oppression, fraud or recklessness
+ Clear and convincing evidence of the aforementioned
+ By a managing agent
Pre-death pain and suffering up to $250,000 and Attorney's fees.

As noted above and discussed more thoroughly below, this formula does not change simply because the abuse happened in an acute care facility. Nevertheless, despite the statutory language, the jury instructions, and the case law, it is often quite challenging to explain this to defense counsel.

Custodial Neglect in an Acute Care Facility

As previously noted, a major step in an elder abuse case against an acute care facility is educating the various players that the neglectful acts at issue are custodial in nature, rather than professional. Three seminal California cases on custodial neglect provide a strong starting point for this educational process and help dispel the defense argument that the development of a decubitus ulcer, for example, cannot rise to the level of custodial neglect under Welfare and Institutions Code §15610 et seq. In all three cases the courts held that the development of a decubitus ulcer was sufficient to constitute custodial neglect. For example, the Covenant Care case dealt with the development of a Stage IV pressure ulcer. Plaintiffs in that case alleged that the decedent "was left lying in his bed, unattended and unassisted for excessively long periods of time; … he developed ulcers on his body that exposed muscle and bone and became septic." (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 772.) The court held that under those facts, the plaintiffs had sufficiently alleged a cause of action under Welfare and Institutions Code §15610 et seq. In Delaney, plaintiffs alleged that the health care providers allowed the decedent's serious pressure ulcers to occur and worsen. It was also alleged that there were violations of medical monitoring and that plaintiff was not adequately turned and was neglected. (Delaney v. Baker (1999) 20 Cal.4th 23, 27-28.) Based on these allegations, the court stated that there "was substantial evidence that defendant's failed, over an extended period of time, to attend to her advanced bedsores, and otherwise neglected her in such a way to contribute to her pain and suffering and eventual death, which was determined to be reckless, given defendants' knowledge of decedents' deteriorating condition and plaintiff's repeated efforts to intervene in her mother's behalf." (Id. at 41.) And another seminal case on elder abuse, Mack v. Soung (2000) 80 Cal.App.4th 966, also involved the development of a decubitus ulcer. In this case as well, the court found that plaintiffs had sufficiently alleged a cause of action for custodial neglect under Welfare and Institutions Code §15610 et seq.

Most often, a decubitus ulcer case against an acute care facility will contain facts that are nearly identical to the facts identified in the above-referenced cases. Though this may seem obvious, point this out to the defense attorneys. Draw the logical conclusion - as in the cases discussed above, the acts and omissions of the defendant hospital that resulted in the development of decubitus ulcers constitute custodial neglect under Welfare and Institutions Code §15610 et seq.

The decision in Marron v. Superior Court (2003) 108 Cal.App.4th 1049 further supports this conclusion. In Marron, the plaintiff sued defendant UCSD Medical Center for custodial neglect for failure to diagnose an infection while plaintiff was a patient in defendant's hospital, in part due to chronic understaffing of the hospital. The court held that evidence of the hospital's neglect in failing to diagnose and treat the infection was sufficient to constitute custodial abuse under Welfare and Institutions Code §15610 et seq. (Id. at 1068.). Custodial neglect can and does occur in the acute care setting.

Recklessness in an Acute Care Facility

Recklessness is succinctly defined in CACI 3113 as follows:

[Name of defendant] acted with "recklessness" if [he/she] knew it was highly probable that [his/her] conduct would cause harm and [he/she] knowingly disregarded this risk.

As in a skilled nursing facility, reckless conduct certainly occurs in the acute care setting and in many of the same ways, such as poor training and understaffing. Below is a short outline of specific areas of potentially reckless conduct that plaintiffs' attorney should watch for in an elder abuse case against an acute care facility.

  • Failure to follow policies and procedures: The policies and procedures from an acute care facility often provide a wealth of information. Make the effort and take the time to fully familiarize yourself with the hospital's policies and procedures regarding patient care, skin care, wound prevention and wound care, lift teams, beds and mattresses, and any other policies which may affect the care that was provided to your client. In depositions, ask each nurse, wound nurse, and supervisor about his or her familiarity with the policies and procedures. Look through the medical records carefully. It is quite likely that the care provided to your client grossly failed to meet the hospital's own policies and procedures on numerous occasions and, in fact, the care providers were not even familiar with the policies and procedures. Regularly, nurses fail to request a consultation when it was required; Skin assessments are not completed on a regular basis; Wounds are not cared for as required by the policies and procedures; and Charting is wholly inadequate pursuant to the policies. Ask your expert and you may very well learn that had the hospital followed its own policies, the injury most likely would not have occurred. Failure to follow policies and procedures and failure to insure that the nursing staff is familiar with the policies and procedures constitutes recklessness, in that the individuals involved knew that there was a high probability that this conduct would cause harm and knowingly disregarded this risk
  • Failure to properly train nurses: The nurses' failure to understand and have knowledge of the hospital's policies and procedures is one example of a failure to properly train the nursing staff. Independent of the policies and procedures, you may also discover that the nurses do not have a complete understanding skin care and wound prevention. Their provision of care may fall below the standard of care. As in cases against skilled nursing facilities, request and review the in-service training offered by the hospital.
  • Failure to provide adequate staffing levels: As in a skilled nursing facility, an acute care facility will also sacrifice adequate staffing levels for budgetary concerns. You may find that your client required three people to turn him, but that it was difficult, if not impossible to find three available people in the ICU to perform this repositioning every two hours. Hospitals also often employ Wound, Ostomy, and Continence nurses ("wound nurse"). While there is no legal staffing requirement for wound nurses, the hospital itself may have budgeted for one or more wound nurses and determined a medical need for one or more wound nurses. Yet, despite this determination, the hospital may fail to staff at this level.
  • Failure to place patient on the correct bed or mattress and/or False Reliance on a Mattress: A major, recurring issue in these cases is the bed and/or mattress on which the patient was placed. Certain beds and mattresses are used for lung therapy, others are recommended for pressure-relief and pressure-reduction. Hospitals and their staff often confuse the two. Many of these beds and mattress overlays rotate the patient from side to side. Many nurses mistakenly believe that this constitutes "repositioning" and record such "repositioning" in the medical chart. This is incorrect and illustrates, again, the poor training provided to the nursing staff. Many experts will explain that bed rotation is not a replacement for manual repositioning every two-hours.

Managing Agent in an Acute Care Facility

The final element to prove in any elder abuse case is that a managing agent knew of, ratified, or is personally guilty of the reckless conduct. In an acute care facility, look to who created the policies and procedures, who was responsible for insuring that the nursing staff knew, understood, and applied the policies and procedures, who decided the staffing levels for the units on which your client was a patient, who trained the staff on the proper use of beds and mattresses, etc.

Helpfully, the only published opinion that discusses the element of managing agent in an elder abuse case is regarding elder abuse in an acute care facility. See Marron, supra, 108 Cal.App. 4th 1049. The court in Marron found that a nursing supervisor in a hospital is a managing agent.

Conclusion

While the application of EADACPA to the acute care setting is seemingly straightforward, the defense bar is expectedly resistant. Plaintiffs' attorneys must be persistent and consistent in their education of the defense bar. By turning to the existing case law, utilizing the CACI Instructions, and relying on the language of the Elder Abuse Act, defense counsel must be shown that the law provides for an elder abuse cause of action in any setting.

Lee Cabatingan, Esq. is an attorney at Stebner and Associates in San Francisco, California