In this final installment of our 3 part series on Elder Abuse and Medical Malpractice at Adult Day Health Care Facilities I will describe the analysis that goes into the drafting of a medical malpractice complaint using an actual case from my practice at the Personal Injury Law offices of Liberman Law Group.
This case involved an elderly woman who for many years had been diagnosed with diabetes, which caused her to be legally blind (zero vision in one eye and 20% in the other) and obese with a lot of other cardio and gastroenterological issues.  The ADHC had a doctor’s note in its records prescribing physical therapy for this participant.  The medical records of the ADHC contained the full history of this participant, which talked about her blindness and various prior hospitalizations due to heart problems and other issues.  Nevertheless the staff, which included a registered physical therapist and a registered nurse, decides that the physical therapy should include the treadmill machine for about 10-15 minutes during each of her visits and places her on the machine.  Suffice it to say that on the second attempt to use this treadmill, the participant is left unattended, the machine automatically speeds up according to its programming, the participant is unable to see or otherwise use the controls to stop the machine, and so she is thrown off the machine and sustains a fractured shoulder and multiple other injuries.  And in addition, due to her diabetes and heart condition she later goes into cardiac arrest at the emergency room and comes close to not surviving the ordeal. 

This case involving the treadmill, besides negligence and possible product liability issues related to the treadmill, one has to also analyze the Elder Abuse statute and the Medical Malpractice cause of action as well.  Prescribing the treadmill, placing the legally blind participant onto the treadmill and/or failure to properly supervise the participant with a weak heart while she was on the treadmill, were all factors that require the addition of the medical malpractice cause of action to the complaint.  Of course the same acts also qualify as failures to protect the participant from health and safety hazards described in the Elder Abuse statute, so it was plead as well.  Note that in cases against licensed health care providers who are covered by MICRA (Medical Injury Compensation Reform Act of 1975) in order to receive the enhanced remedies under the elder abuse law, a plaintiff must prove some misconduct more than mere medical negligence.  But the other crucial aspect of the Elder Abuse statute is that it gives the California plaintiff a two-year statute of limitations to work with versus the one year in medical malpractice cases (which can be extended by up to 90 days if the letter is sent to the medical provider before the statute expires).

Since ADHCs provide not only entertainment for their participants but also medical services, their liability base may include not only the usual negligence-based causes of action, but the Elder Abuse remedies and medical malpractice.  Analysis of the issues discussed above is therefore crucial to the successful outcome of any case involving an Adult Day Health Care facility.