In a new opinion addressing allegations of elder abuse, the Court of Appeal explains how evidence of simple “negligence” differs from “recklessness” in a nursing facility setting.
Following a loss of weight, episodes of passing out, and falls, Harvey Cohoon was diagnosed with stage 2 colon cancer. Mr. Cohoon started a treatment of chemotherapy and radiation and moved from a hospital to a skilled nursing facility, where he planned to stay for the duration of his cancer treatment.
On admission to the facility, Mr. Cohoon was malnourished, had a stage 3 pressure ulcer, and exhibited muscle wasting. Following a comprehensive assessment, social service admission evaluation, and assessments on activity, nutrition, dietary risks, the facility staff prepared an extensive care plan.
According to the facts in Cochrum v. Costa Victoria Healthcare, LLC, Mr. Cohoon’s condition improved over his first 19 days at the facility. Despite his cancer treatment, he gained weight and his protein levels improved. One of his relatives commented that it was obvious Mr. Cohoon was “getting better day by day.”
At one point, however, a nurse observed Mr. Cohoon having problems eating and ordered a speech therapist to evaluate him. Following that evaluation, the therapist ordered that Mr. Cohoon’s diet be changed to “mechanical-soft” (food cut into pieces a half-inch or smaller) with pudding-thick liquids.
The next evening, however, a nurse noted an inattentive Mr. Cohoon during his dinner time. Unsuccessful in arousing Mr. Cohoon, who had a pulse but was not breathing, the nurse initiated a code blue. The family was notified of the situation as 911 was called.
Prior to initiating CPR with an Ambu bag, the nurse did a finger sweep of Mr. Cohoon’s mouth and found no food present. The nurse did not perform a Heimlich maneuver because in addition to the negative mouth sweep, Mr. Cohoon’s chest was rising and falling with the Ambu bag. When paramedics arrived, Mr. Cohoon was in full a respiratory and cardiac arrest. When a paramedic inspected Mr. Cohoon’s throat, he used forceps to remove two solid pieces of chicken. At the hospital,a physician removed some 10 pieces of chicken from Mr. Cohoon’s airway, ranging in size from a dime to a quarter.
Mr. Cohoon’s death the next day was attributed to a complete airway obstruction, respiratory and cardiac arrest, and resulting brain damage.
In a subsequent lawsuit and trial against the facility and its owner and service providers, Mr. Cohoon’s estate presented expert testimony opining that staffing, training, and management at the facility were inadequate. The plaintiffs also presented expert testimony on precautions the facility should have taken with regard to monitoring Mr. Cohoon’s dinner meal under the diet change and on the nurse’s failure to perform a Heimlich maneuver.
A jury found in favor of the estate under California’s Elder Abuse and Dependent Adult Civil Protection Act. Under that law, a jury may award enhanced damages if it finds that the defendant acted recklessly. After finding of negligence and recklessness by agents and employees of the center and its owner, the jury awarded $15,511 in economic damages, $350,000 in noneconomic damages for wrongful death, and $900,000 in noneconomic damages for elder abuse.
After the verdict, the trial court judge reduced the awards for wrongful death and elder abuse to $250,000 under California’s Medical Injury Compensation Reform Act (MICRA). Later, the court granted a defense motion for a “judgment notwithstanding the verdict”— a rare act in which a judge overrules the finding of the jury.
In granting the new judgment, the judge acknowledged substantial evidence to support the jury’s finding that Mr. Cohoon was not served a mechanically soft-chopped meal, that the facility negligently served him an improper meal, and that it inadequately monitored him during the meal.
“What the jury got wrong, however,” the judge wrote, “was the verdict that the acts of the facility amounted to elder abuse under the Elder Abuse Act.” In concluding that the defendants’ conduct amounted to negligence — but not recklessness as required to support a claim for elder abuse — the judge reasoned: “The entire episode concerning Mr. Cohoon was over in less than 12 hours, from the change in dietary plan to the choking. There were no complaints to the facility and no ongoing refusal to provide service and no evidence that Mr. Cohoon had been abused or was in any danger before being served his meal.”
In upholding the trial judge’s decision, the Orange County-based Court of Appeal noted that 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.” Citing past California cases, the appellate court said that “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.’”
The Court of Appeal found no substantial evidence of such recklessness in Mr. Cohoon’s care and addressed the plaintiff’s claims of inadequate staffing, training, and monitoring. In that review, the court said that “at least in principle, understaffing could amount to recklessness if it is sufficiently egregious. That was not the case here.”
Similarly, the appellate court found that evidence claiming inadequate monitoring did not rise to the level of recklessness and as for training, the court said, “there is nothing in the record to suggest that an additional educational program on choking prevention would have changed anything” and that a failure to require licensed nurses to attend a choking program that year “was, at most, negligent.”
Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should bedirected to gownby@CAPphysicians.com.