OUR CLIENT VS. CONFIDENTIAL RESIDENTIAL CARE FACILITY FOR THE ELDERLY - $300,000 MEDIATED SETTLEMENT

This was a wrongful death elder abuse/neglect case arising from the death of an 88-year-old man on July 10, 2005 due to a massive, advanced and inoperable subdural hematoma.  Jim fell from bed at the defendants’ residential care facility for the elderly at about 4:00 p.m. on Thursday, June 30, 2005, and suffered two head lacerations when his head struck the floor.  The staff LVN, in the presence of the administrator, cleaned and bandaged the wounds but defendants provided no further medical evaluations or care.  Five days later on Tuesday July 5, a visiting nurse discovered that Jim was non-responsive.  He was immediately transported to the Stanford Medical Center emergency department where the head injury was diagnosed, but it was too late to save him and he was transferred to the Palo Alto VA Hospital for hospice care.
Defendants’ neglect of Jim included:

• Failure to use a personal alarm or bed alarm despite knowing Jim was a fall risk and had previous falls while attempting to transfer without assistance;
• Failure to have the bed rail up for fall protection;
• Failure to properly supervise Jim;
• Failure to perform or order a  medical evaluation on the afternoon of the fall;
• Failure to contact Jim’s physician on the afternoon of the fall;
• Failure to call 9-1-1 emergency on the afternoon of the fall;
• Failure to have Jim transported to an acute care hospital on the afternoon of the fall for evaluation of possible closed-head injury;
• Failure to monitor or re-assess Jim for head injury over the 4th of July three-day weekend;
• Failure to recognize signs and symptoms of closed-head injury over the long 4th of July weekend, including loss of appetite, an increase in sleepiness, and increasing non- responsiveness;
• Failure to contact the family or Jim’s physician over the 4th of July weekend when Jim was showing signs and symptoms of head injury including decreased appetite, an increase in sleepiness and non-responsiveness;
• Failure to contact 9-1-1 emergency over the 4th of July weekend when Jim was showing signs and symptoms of head injury.

The Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”) provides for enhanced remedies of damages for the decedent’s pain and suffering, attorney costs and fees, and punitive damages when neglect and recklessness or malice in the commission of the neglect is shown by clear and convincing evidence.  In this case several bases existed for such enhanced remedies from defendants.  First, the administrator

1. knew that Jim sustained a direct force head trauma,
2. knew that such a force could cause a brain injury including subdural hematoma,
3. knew that if untreated it could progress and become life-threatening, but
4. nonetheless made the conscious choice to not call 9-1-1 emergency, arrange to have Jim examined by his physician, or transfer Jim to an acute care hospital for medical evaluation. 

A second basis for enhanced remedies is the clear and convincing evidence that the owners and administrator knowingly employed unfit caregivers who recklessly and maliciously neglected Jim.  A third basis is that the administrator authorized the caregivers’ conduct of failing to reassess Jim over the weekend for signs of serious head injury in disregard of the probable danger to Jim.  A fourth basis is the fact that facility owner admited that he ratified of the lack of care provided to decedent after he learned about it, including the neglect that occurred both before and after the fall.  No one was reprimanded or disciplined in any way for their conduct in connection with Jim’s death.

Finally, a further basis existed for punitive damages:  the attempt to mislead and defraud the family, its counsel, and the Department of Social Services Community Care Licensing, by altering Jim’s records after he died.

The Plaintiffs were the wife and adult son of Jim, and the decedent by and through his wife as successor-in-interest.