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This was an elder abuse and wrongful death case. The decedent died on August 24, 2007 at age 78. The plaintiffs were the husband and family.

When decedent was a resident at Confidential skilled nursing facility on August 10, 11, 12 and 13, 2007, the facility failed to administer crucial antibiotics that had been prescribed by her Kaiser physician to treat a recurrent and severe gastrointestinal bacterial infection known as Clostridium difficile (C.diff). As a result of the untreated fulminate infection, decedent experienced diarrhea, vomiting, abdominal pain and sepsis.

Then, on August 13, decedent was emergently transferred to Kaiser Walnut Creek with clinical signs of septic shock from the infection. She was treated with oral and IV antibiotics, and showed some improvement, however diarrhea and episodes of emesis continued due to the gastric infection, and pneumonia developed. The combination of the unresolved C.diff infection and pneumonia resulted in sepsis, septic shock, respiratory failure, and death on August 24, 2007, at 2:55 a.m.


At the request of her daughters, decedent’s care and treatment by Confidential skilled nursing facility was investigated. Three deficiencies in care were verified (violations of both Federal and State law):

  • The facility failed to notify decedent and her family of resident rights; failed to inform them of available services; and, failed to provide an admission package that includes this information as well an admission agreement.
  • The facility failed to promote care in a manner that maintained the resident’s dignity. Specifically, “on multiple occasions, the family found the resident soaked in urine or not cleaned up after vomiting. According to the family member, on the day of transfer to the facility, a staff member came to the room and said she was too busy. “I changed her. She was soiled and needed care,” the family member stated.” This is a violation of California Code of Regulations, Title 22, section 72315: “Each patient shall be treated as individual with dignity and respect …”, and “each patient shall be given care … to maintain clean, dry skin free from feces and urine.”
  • Significant medication errors occurred. “Based on staff interview and record review, the facility failed to ensure that was free of significant medication errors, by failing to ensure that the prescribed medications, including an antibiotic, were administered as ordered by the physician. This failure resulted in delay in treatment of a recurrent infection and contributed to the resident’s death.” This is a violation of both Federal and State law.

Elder abuse/neglect.

Welfare and Institutions Code Section 15610.57 defines elder abuse “neglect” as negligent failure of any person having the care or custody of an elder to exercise that degree of care that a reasonable person in a like position would exercise by, among other things

  • Failing to protect from health and safety hazards; or
  • Failing to provide medical care for physical and mental health needs.

According to the California Supreme Court, “neglect” under the Act “refers not to the substandard performance of medical services but, rather, to the ‘failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’ Thus the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783. As such, the limitations of MICRA do not apply to this case.

The failure of the staff at Confidential skilled nursing facility to administer the antibiotic because of the Clostridium difficile gastrointestinal infection is “neglect” by definition. Moreover, the four day absence of antibiotic therapy clearly caused sepsis in a patient with a weak immune system; abdominal pain and distension; episodes of vomiting; aspiration of emesis; pneumonia; septic shock; respiratory failure; and, death. The neglect resulted in injury to, and pain and suffering by decedent and her ultimate death.

California Welfare and Institutions Code Section 15657 (the Elder Abuse Act) provides that upon proof by clear and convincing evidence of neglect of an elder and recklessness or malice in the commission of the neglect, plaintiffs may recover from a defendant who had care and custody of the elder all remedies provided by law and damages for decedent’s pain and suffering, attorney fees and costs of suit. Malice is despicable conduct done with a knowing disregard of the probable injurious consequences (CACI 3114); similarly, recklessness is conduct done with a knowing disregard of the probability of causing harm (CACI 3113). Furthermore, under CCP Section 377.34 and Civil Code Section 3294 punitive damages are recoverable in a decedent’s survival action upon a showing by clear and convincing evidence of fraud, oppression or malice. Under Civil Code Section 3345 punitive damages may be trebled.

Vicarious liability.

An employer is vicariously liable for wrongful death damages if the neglect was committed by an employee acting within the course and scope of employment.

An employer is vicariously liable for elder abuse damages if the malicious or reckless neglect was done by a managing agent, or by an employee if the employer or its managing agent had advance knowledge of the unfitness of the employee, or if the employer authorized the wrongful conduct, or approved of the wrongful conduct after it occurred. (Civil Code Section 3294)


The failure to administer the prescribed antibiotic was clearly a failure to protect decedent from health and safety hazards as well as a failure to provide necessary medial care, and is elder abuse neglect under Welfare and Institutions Code 15610.57.

Moreover, the failure to give the antibiotic violated numerous requirements of Title 22 of the California Code of Regulations, which sets forth obligations of skilled nursing facilities:

Title 22, Section 72301. Required Services.

(f) The facility shall ensure that all orders, written by a person lawfully authorized to prescribe, shall be carried out unless contraindicated.

Title 22, Section 72313. Nursing Service – Administration of Medications and Treatments.

(a) Medications and treatments shall be administered as follows: . . .

(2) Medications and treatments shall be administered as prescribed.

Title 22, Section 72355. Pharmaceutical Service – Requirements.

(a) Pharmaceutical service shall include, but is not limited to, the following: . . .

(B) Anti‑infectives and drugs used to treat severe pain, nausea, agitation, diarrhea, or other severe discomfort shall be available and administered within four hours of the time ordered.

(C) Except as indicated above, all new drug orders shall be available on the same day ordered unless the drug would not normally be started until the next day.

The failure of the staff to develop a care plan for the C.diff infection was a violation of Title 22, section 72311, and probably contributed to the failure of the nursing personnel to make reasonable attempts to obtain and administer the antibiotic:

Title 22, Section 72311. Nursing Service ‑ General.

(a) Nursing service shall include, but not be limited to, the following:

(1) Planning of patient care, which shall include at least the following:

(A) Identification of care needs based upon as initial written and continuing assessment of the patient’s needs . . . .

(B) Development of an individual, written patient care plan which indicates the care to be given . . . .

The failure of the admission coordinator and other staff to follow proper admission procedures likely also contributed to the failure of the nursing personnel to administer the antibiotic treatment. It was a violation of Title 22, Section 72315:

Title 22, Section 72315. Nursing Service ‑ Patient Care.

(c) Each patient, upon admission, shall be given orientation to the skilled nursing facility and the facility’s services and staff.

Furthermore, the numerous failures of the staff to clean decedent of vomit and feces in her bed violated Title 22, Section 72315:

Title 22, Section 72315. Nursing Service ‑ Patient Care.

(b) Each patient shall be treated as individual with dignity and respect and shall not be subjected to verbal or physical abuse of any kind. . . .

(d) Each patient shall be provided care which shows evidence of good personal hygiene. . . . The patient shall be free of offensive odors. . . .

(f) Each patient shall be given care . . . to maintain clean, dry skin free from feces and urine.

Jeffrey R. Smith

Jeffrey R. Smith

Managing Partner

Robert B. Waldsmith

Robert J. Waldsmith

Partner, 1999

William B. Smith

William B. Smith

Partner, 1978

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