$375,000 SETTLEMENT IN ELDER ABUSE/NEGLECT CASE

This is a wrongful death/elder abuse case brought by the adult children of a resident at a Confidential Skilled Nursing Facility in Millbrae, California. Caregivers at defendant’s facility recklessly neglected the 82 year old resident, resulting in her falling down a flight of stairs, thereby suffering a cervical fracture and paralysis, causing death.

Since August 24, 2001, the resident had been living at a residential care facility, but needed a higher level of care for her medical conditions.  When she was admitted to defendants’ Confidential Skilled Nursing Facility, she had a history of falls and was assessed as a fall risk, her balance was unsteady, she required a walker for ambulation, she required assistance with transfers and walking due to poor balance and poor safety awareness, she had depression, irritability, agitation, paranoid ideation and required supervision for safety.  She required Prozac for depression, and a psychotropic drug for paranoid ideation and angry outbursts, which had known side effects of confusion and depression.  Moreover, during her stay at defendants’ Confidential Skilled Nursing Facility, she fell eight times.

The resident also had a diagnosis of dementia with depression and agitation, and it was noted that she was often confused, forgetful with  short-term memory deficit, had worsening depression, had poor vision secondary to cataracts, and her cognitive skills for daily decision-making were impaired, requiring supervision for safety.  She was also frequently unhappy, with difficulty adjusting to living in a skilled nursing facility.  She often told staff that she wanted to leave and live with her daughter in San Carlos. 

A personal alarm was part of her initial care plan, to be used when the resident was in bed or in a chair.  The bed/chair monitor attaches to the headboard of the bed or the back of the chair and one end of a cord clips to the clothing and the other end is attached to the monitor.  If the patient falls or gets up, the cord becomes detached from the monitor and an alarm is sounded, so staff can provide aid or assistance.  The resident frequently would detach the personal alarm, and this fact was well known to the staff. 

In November and December of 2003, the resident became more agitated, confused and desirous of leaving the facility.  On November 18, 2003, she was found wandering in the back yard of the facility, and on December 5, 2003, she was again found wandering in the backyard of the facility.  It was not until this second wandering event that a Secure Guard device was added to the resident’s care plan.  This is an anklet which triggers an alarm on an exit door and at the main nurses’ station if the resident opens an exit door.   It did not prevent residents from wandering through exit doors because the device did not trigger the alarm before the door is opened.

On Monday, December 29, 2003, a Certified Nursing Assistant  was assigned to the resident as one of her many residents for the day shift (7:00 a.m. to 3:30 p.m.).  She was normally assigned to eight or nine residents.  The CNA was a part-time employee.  The CNA who regularly provided care to the resident was not working that day.

The CNA  testified that after assisting the resident with her normal morning ADLs, she placed her in a chair in the hallway, located twenty to thirty feet from an exit door leading to a stairway to the lower level of the facility.  The CNA testified that she placed the resident in the chair at about 9:00 a.m., then went into another resident’s room to provide care, which she knew would take at least twenty-five minutes or longer.  The CNA never saw the resident again until after she fell down the stairway.

While she was left unsupervised in the hallway, the resident retrieved her folded walker from behind her chair and set it up in front of her, un-clipped the personal alarm, got out of the chair, walked from the chair to the door of the stairwell, opened the door, then fell down the flight of stairs.  The door alarm sounded, presumably as the door was being opened, but no one responded fast enough to prevent the fall.

By the time staff arrived at the stairwell, the resident was lying at the bottom of the stairs on a landing.  9-1-1 was called at 10:24 a.m., according to the Millbrae Police report.  Millbrae Fire Department EMTs arrived at 10:27 a.m. and began resuscitation efforts at 10:30 a.m.  The resident was unconscious and unresponsive.  She had lacerations on her left forehead and at the back of her head.  Her pupils were dilated and fixed, and she was not breathing.  After approximately two minutes of CPR attempts, radial and carotid pulses returned, however the patient still did not breathe on her own.  Endo-tracheal intubation was obtained and an IV was placed.  The resident was placed in full spinal immobilization, then transferred to an ambulance and taken to the trauma unit at San Francisco General Hospital.

A cervical spine CT study revealed a C2 vertebral body fracture with the displacement of a small fracture fragment projecting three to four millimeters within the central canal.  The resident was paralyzed below the fracture level.  She never regained consciousness, nor the ability to breathe on her own, and at 5:47 p.m. she died after ventillary support was withdrawn.

An autopsy was performed that evening.  Pertinent findings included an L-shaped laceration, 2¼" in greatest dimension in the left forehead, surrounded by some red contusing; a 2" red contusion, posterior-lateral right forearm; a 3" red-purple contusion, anterior-lateral upper-left arm; green contusions to the dorsal aspect of the second through the fifth fingers of the left hand; a 1" red-brown abrasion and laceration of the left lower leg; a 4" green contusion just below the left collarbone; a vague 2½" red abrasion of the superior aspect of the left shoulder; a 4" area of red-purple, glistening soft tissue hemorrhage in the left-frontal area of the brain; fractured second cervical vertebral body; and, cervical spinal cord contusions.  The cause of death (“disease or condition directly leading to death”) was determined to be the fractured second cervical vertebral body.

The defendant Skilled Nursing Facility was liable for the wrongful death of the resident due to negligent supervision by its employees, and for reckless neglect in violation of the Elder Abuse and Dependent Adult Civil Protection Act.

Licensed skilled nursing facilities are under a duty to provide adequate monitoring, supervision and care of residents.  41 U.S.C. 1395i-3 requires that “a skilled nursing facility must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident”.  Similarly, 42 C.F.R. § 483.25 requires that:

“The facility must ensure that . . . each resident receives adequate supervision and assistance devices to prevent accidents.”

The Department of Health Services determined that 42 C.F.R. § 483.25 was violated and elder abuse occurred.
The level of supervision required for each resident is dependent upon the resident’s history and conditions.  Here, the resident had a history of falling and was a known fall risk.   Moreover, she  

• had Alzheimers dementia with agitation;
• her cognitive skills for daily decision-making were moderately impaired requiring supervision for safety;
• was often preoccupied with leaving the facility;
• was depressed;
• often exhibited confusion and forgetfulness;
• had short-term memory deficit;
• had poor vision;
• often attempted transfers by herself, resulting in falls;
• often removed her personal alarm;
• had wandered outside of the facility.

The staff personnel were careless and negligent in discharging the statutory duties of caring for and supervising Viola Shepherd, directly leading to her death.

Welfare & Institutions Code § 15657 provides:

“Where it is proven by clear and convincing evidence that a defendant is liable for . . . neglect as defined in Section 15610.57, . . . and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all of the remedies otherwise provided by law:

(a)        the court shall award to the plaintiff reasonable attorneys’ fees and costs. . . .

(b)        the limitations imposed by Section 337.34 of the Code of Civil Procedure on the damages recoverable shall not apply . . .

(c)        the standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorneys’ fees permitted under this section may be imposed against an employer”.

Welfare & Institutions Code § 15610.57 defines “neglect” as the negligent failure of any person having care or custody of an elder to exercise that degree of care that a reasonable person in a like position would exercise, and includes the “failure to protect from health and safety hazard”.

Civil Code § 3294(b) provides that an employer shall not be liable for punitive damages based upon acts of an employee unless the employer had advanced knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others, or authorized or ratified the employee’s wrongful conduct, or was personally guilty of oppression, fraud or malice.  With respect to a corporate employer, the authorization or ratification of an act of recklessness, oppression, fraud or malice must be on the part of an officer, director or managing agent of the corporation.