This is Part 2 of our 3 part series on Elder Abuse and Medical Malpractice at Adult Day Health Care Facilities. Today I will illustrate the analysis that goes into the drafting of an elder negligence complaint against an ADHC. This case involved an elderly participant who was seated at a picnic-style outdoor table in the backyard of an ADHC.  The table, usually found in picnic areas and public parks, can best be described as a one-piece where the two benches on both sides of the tabletop are all attached to one another.

Except this one was lighter, purchased at Costco and placed on an uneven ground surface.  Plaintiff-participant was seated at the edge of the bench on one side, while 2 or 3 other people were seated closer to the other side on opposite sides of the bench.  When these people decided to leave and stood up, the table no longer balanced by the weight of all the originally seated persons, overturned onto the plaintiff causing her to fall on the ground and sustain a fractured arm and other injuries.

The picnic table injury accident presents a relatively basic negligence, premises liability and possible product liability law suit.  Anyone who would have been seated at the same table would have had these same causes of action to pursue if the table fell over on them.  But since the injury occurred at an ADHC and our plaintiff is a participant, she has additional enhanced remedies afforded by the Welfare and Institutions Code section 15600, also known as the “Elder Abuse and Dependent Adult Civil Protection Act” (EADACPA), if one can show neglect by the ADHC. Neglect under the Elder Abuse and Dependent Adult Civil Protection Act means either:

•    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; or
•    The negligent failure to exercise that degree of care that a reasonable person in a like position would exercise.

Under the statute, neglect includes but is not limited to:

•    Failure to assist in personal hygiene of in the provision of food, clothing or shelter.
•    Failure to provide medical care for physical and mental health needs.
•    Failure to protect from health and safety hazards.
•    Failure to prevent malnutrition or dehydration.

Under the Elder Abuse statute (EADACPA), the lightweight and unballanced picnic table was arguably a safety hazard.  This is how it was plead as a cause of action in the complaint. The reason one should plead Elder Abuse is because of the enhanced remedies provided by EADACPA, which include the right to recover unlimited pain and suffering damages and up to $250,000.00 in pain and suffering even after the plaintiff’s death, as well as attorney’s fees and costs, which can be substantial in these types of cases and are not usually allowed in negligence actions.  For the remedies under EADACPA to be available, it must be proved by clear and convincing evidence that the defendant is liable for physical abuse, neglect or fiduciary abuse and that the defendant has been guilty of recklessness, oppression, fraud and malice in the commission of the abuse.  There is no statutory definition for the term “recklessness”, which is usually described as something more than negligence. It must not only be unreasonable, but it must invoke a risk of harm to others substantially in excess of that which is necessary to make conduct negligent.  California jury instructions state “A defendant’s conduct is in reckless disregard of the probability of causing emotional distress if he/she has knowledge of a high degree of probability that emotional distress will result and acts with deliberate disregard of that probability or with a conscious disregard of the probable results.”