While California awaits a ruling from the state’s Supreme Court on a related Elder Abuse Act issue, an intermediate appellate court has rejected a patient’s attempt to blur the distinction between medical negligence and elder abuse.
According to the allegations relied on by the Court of Appeal in Worsham v. O’Connor Hospital, Juanita Worsham underwent hip surgery after fracturing her hip in a fall at home. Following surgery, Ms. Worsham was transferred to O’Connor Hospital’s Transitional Care Unit, where she fell again and broke her right arm and re-broke her hip.
In her lawsuit against O’Connor Hospital, the patient alleged professional negligence and a violation of the Elder Abuse Act, accusing the facility of understaffing the Transitional Care Unit and undertraining the personnel. The lack of sufficient well-trained staff caused her fall, according to the suit.
O’Connor Hospital objected to the elder abuse pleadings and asked for a dismissal. The trial judge agreed with the hospital that Ms. Worsham did not sufficiently support her allegations with specific facts and ruled her elder abuse theory could not proceed. Ms. Worsham then dropped her negligence cause of action and appealed the court’s dismissal of her elder abuse theory. She died after filing her appeal and her case was continued by her son.
Under California Welfare & Institutions Code Section 15610.27, a plaintiff who proves “by clear and convincing evidence” that a defendant is both liable for physical abuse, neglect, or financial abuse and acted with “recklessness, oppression, fraud, or malice” may receive an award that exceeds those available under ordinary negligence theories. These “enhanced remedies” include an award of attorneys’ fees and payment to heirs for pain suffered by a decedent.
The courts have said that the Elder Abuse Act’s two-pronged approach means that “recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice’ of a course of action… with knowledge of the serious danger to others involved in it,’” according to one of the major Elder Abuse Act opinions by the Supreme Court, Delaney v. Baker (1999).
Another major case, Covenant Care v. Superior Court (2004), says that an Elder Abuse Act action must focus not on alleged negligent medical care, but on whether such services were provided at all: “The statutory definition of ‘neglect’ speaks not to the undertaking of medical services, but of the failure to provide medical care.”
Citing Covenant Care and Delaney, the court in Worsham said that the alleged inadequacies in training and staffing at the Transitional Care Unit do not rise to the level required for elder abuse. “The allegations . . . are not sufficient to render O’Connor’s conduct in failing to provide adequate staffing anything more than professional negligence,” the Santa Clara County-based panel ruled. “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.” Even the plaintiff’s later attempt to argue that O’Connor should have provided a “sitter” to ensure against the patient’s fall was to no avail, according to the court. The new allegation, like that of staffing and training, “amounts to professional negligence.”
Case of the Week Author Gordon Ownby is General Counsel for the Cooperative of American Physicians, Inc.
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