$218,500 Mediated Settlement in Wrongful Death Dependant Adult Neglect Case

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$218,500 Mediated Settlement in Wrongful Death Dependant Adult Neglect Case

This was a wrongful death and dependent adult abuse action against the owner and operator of a mental health rehabilitation facility, and the physician consultant to the facility. The plaintiffs were the parents of their son (wrongful death cause of action), and the son through his father as successor-in-interest (dependant adult abuse survival cause of action).

This action arose from the tragic and easily preventable death of a 33-year-old resident at Confidential Mental Health Rehabilitation facility, who could not care for himself due to mental illness – Schizoaffective Disorder, bipolar type, with paranoia. In short, following a course of antibiotic therapy for a dental abscess decedent developed Clostridium difficile infection, a well known complication of antibiotic therapy. Despite five days of intractable diarrhea and resultant symptoms of dehydration and shock, the doctor never suspected the C.dif infection. As a result, decedent suffered through days of sickness resulting in an emergent transfer to Eden Medical Center at 1:00 a.m. on November 24, 2005 because of shock and respiratory distress from dehydration and sepsis, culminating in his death on November 25. The coroner reported the cause of death to be ” cardiovascular collapse due to clostridium difficile infection.

Clostridium difficile is very easily treated and cleared with antibiotics Flagyl or Vancomycin. Here, the doctor failed to recognize the significance of the signs and symptoms, failed to make the correct diagnosis, failed to provide necessary medical care, and was generally indifferent to her patient. The staff at the facility similarly failed to appreciate the seriousness of the situation, failed to appropriately communicate significant information about decedent’s condition to the doctor in a timely and appropriate manner, and failed to obtain necessary medical care.

Antibiotic therapy can cause Clostridium difficile induced diarrhea.

Clostridium difficile is a pathogen that is commonly acquired in hospital or long-term care settings. It is commonly referred to as C.difficile or C.dif. When exposed to C.difficile, some patients become asymptomatic carriers of the organism, whereas others contract C.difficile-associated diarrhea, which may range from mild to life-threatening. The presence of normal bacterial flora in the colon prevents colonization of the pathogen. However, if the normal colonic flora is altered, resistance to colonization is lost. The most common risk factor to colonization of the C.dif pathogen is exposure to antibiotics, especially Clindamycin. This is well known and universally recognized, and defendant Doctor admits she was aware of this.

The C.dif pathogen produces toxins (Toxin A and B) that are cytotoxic, i.e., poisonous to human cells, and can cause virulent diarrhea, dehydration, sepsis, cardiovascular collapse and death. The time from antibiotic exposure to onset of C.diff induced diarrhea can be as short as one day to as long as 6 to 8 weeks, as is well documented in the literature. It is therefore crucial that the treating physician watch for diarrhea in patients within eight weeks of antibiotic exposure and consider C.dif infection as a side effect. It is a breach of the standard of care to not include C.diff infection in the differential diagnosis.

The universally recognized treatment for C.difficile diarrhea within eight weeks of antibiotic therapy is the administration of the antibiotic Flagyl (generic name Metronidazole), which is known to be especially effective against C.difficile organisms. As will be shown, this was not done, and the Clostridium difficile infection went untreated, causing protracted diarrhea, dehydration, weakness, confusion, sepsis, shock, and eventual death.


Wrongful death.

California law provides that a cause of action for the death of a child who leaves no surviving spouse, issue, or issue of deceased children, caused by the wrongful act or neglect of another, may be asserted by decedent’s parents. ( CCP Section 377.60(a), Probate Code Section 6402, Nelson v County of Los Angeles (2003) 113 Cal.App.4th 783) The standard of proof for wrongful death is preponderance of the evidence. Recoverable damages include economic and noneconomic, such as the loss of the decedent’s love, affection, companionship, guidance, support, and relationship. Here, decedent was never married and had no children, giving his parents standing to sue.

Dependant adult abuse/neglect.

Welfare and Institutions Code Section 15610.23 (a) defines a dependent adult as any person between the ages of 18 and 65 “who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights,” and 15610.23 (b) defines a dependent adult as “any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.” Clearly, decedent was a dependent adult entitled to the protections of the Elder Abuse and Dependent Adult Civil Protection Act (W&I Code Section 15600 et seq).

Welfare and Institutions Code Section 15610.57 defines “neglect” as negligent failure of any person having the care or custody of a dependant adult 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.

California Welfare and Institutions Code Section 15657 provides that upon proof by clear and convincing evidence of neglect of a dependant adult, and recklessness or malice in the commission of the neglect, plaintiffs may recover from a defendant who had care and custody of the dependant adult 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 such punitive damages may be trebled.

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. This is an important distinction with regards to available remedies.

The present case alleges medical negligence against defendant doctor causing the death of decedent, and reckless neglect against both defendants doctor and the facility also contributing to the death as well as his own pre-death personal injuries. It is clear under W&I Code section 15657(b) that decedent’s noneconomic survival damages based on his claim of dependant adult reckless neglect are limited to $250,000 under MICRA, however his parents’ wrongful death damages based on allegations of neglect are not so limited. W&I Code section 15657(b) states:

“The limitations imposed by Section 377.34 of the Code of Civil Procedure on damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b)of Section 3333.2 of the Civil Code.”

This means that the CCP Section 377.34 prohibition against pre-death pain and suffering damages of a decedent in an action that survives death has been eliminated in elder and dependant adult reckless neglect cases, but the damages recoverable for decedent’s pre-death pain and suffering are limited to $250,000 under CC Section 3333.2.

In ARA Living Centers-Pacific, Inc. v Superior Court (1993) 18 Cal.App.4th 1556, 1563, this was made clear by the holding that

“The effect of the 1991 amendment to the elder abuse law was to remove this limitation and permit a decedent’s personal representative or successor to recover pain and suffering damages when plaintiff can prove by clear and convincing evidence recklessness, oppression, fraud, or malice in the commission of elder abuse. Even then, those damages would be subject to the $250,000 cap placed by Civil Code section 3333.2, subdivision (b) for noneconomic damages against a health care provider. In this limited circumstance, the decedent’s right to pain and suffering damages would not die with him or her; the damage would be recoverable by a survivor.”

(Emphasis added)

“Those damages” refer to the damages for a decedent’s pre-death pain and suffering.

There is no such similar limitation on the noneconomic damages sought by the heirs of a decedent in a wrongful death action based on dependant adult reckless neglect, or any negligence that is not professional negligence. The statute just cited applies only to a survival action of a decedent based on reckless neglect, not a wrongful death action brought by the survivors for their own damages due to the death of their heir. As long as the wrongful death recovery is based on something other than substandard performance of medical services , the noneconomic damages are not limited by MICRA. Here, against defendant facility, the wrongful death recovery sought is based on the failure to provide medical care, not the negligent performance of medical care.

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 dependent adult 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 § 3294)


Defendant doctor is an internal medicine specialist. As such she must “use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful would use in similar circumstances.” CACI 502. The failure to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful internal medical specialists would use in the same or similar circumstances is negligence.

Conduct is a legal cause of harm if such conduct was a substantial factor in bringing about the result. “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” CACI 430.

“The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.

It is clear that defendant Doctor did not include Clostridium difficile in her differential diagnosis after she was made aware that decedent was suffering diarrhea, and she never made the correct diagnosis. This was malpractice. Had she exercised even the minimal level of skill, knowledge and care of reasonably careful internists, she would have reviewed the chart and realized that decedent had recently completed a course of antibiotic therapy, then prescribed Flagyl, and the infection would have cleared.

Moreover, defendant doctor had multiple opportunities to make the correct diagnosis over the course of three days, but her misplaced reliance on the staff statement that decedent had recently eaten Chinese food doomed him. The failure to review her patient’s chart, to suspect C.diff, to diagnose C.diff, and to prescribe the appropriate antibiotic was undoubtedly more than a remote or trivial factor in causing decedent to unnecessarily suffer diarrhea, dehydration, weakness, and death.

Moreover, it was malpractice to prescribe an anti-diarrheal medication at 8:15 a.m. on November 21 based solely on the information she received on the telephone that decedent had intractable diarrhea after supposedly eating Chinese food. Anti-diarrheal medications are absolutely contraindicated in the presence of the C.diff infection and actually allow the infection to flourish. C.diff is a commonly acquired infection in hospitals and long term care settings. Therefore, after receiving the telephone message on the morning of November 21 defendant Doctor should have gone to the facility, reviewed the chart, examined her patient, made the correct diagnosis and prescribed the proper medication. Her failure to do this was a failure to use the skill, knowledge and care of a reasonable physician caring for patients in an institutional setting, and it clearly allowed the infection to flourish and eventually kill decedent. Similarly, her prescription of an additional anti-diarrheal to decedent on November 22 was malpractice, for the same reasons.

Furthermore, the failure to review the chart and personally examine decedent on November 21 after receiving information by telephone at 3:25 p.m. that the diarrhea continued and there was tachycardia at an alarming rate of 150 beats per minute was malpractice. It was obvious that decedent was suffering from severe volume depletion due to prolonged diarrhea causing the tachycardia, and even the psychiatrist suspected this, but defendant Doctor never did. This shows a lack of skill and knowledge, causing unnecessary suffering.

On November 22 at about 11:00 a.m. defendant Doctor saw decedent at the facility, but only because it was one of her regular days to be at the facility. While there she noted the heart rate at 110-120 beats per minute, but admits that she was uncertain of the cause, did not suspect volume depletion due to the prolonged diarrhea, did not remember that decedent had recently completed a course of antibiotics, and did not suspect Clostridium difficile. Instead, she assumed that decedent had a food borne bacterial infection Campylobacter and added another contra-indicated anti-diarrhea medication, which only made matters worse.

The malpractice continued on November 23, when at 9:15 a.m. defendant Doctor was told by telephone that the uncontrollable diarrhea and tachycardia continued, decedent was weak and pale, and the lab tests showed infection. She failed to personally review the lab results, personally examine her patient, or review the chart to determine the cause of the prolonged diarrhea. Had she done these things she would have realized the severity of decedent’s condition: tachycardia due to dehydration, tachypnea, extreme weakness and confusion, and he would have been emergently transferred to an acute care hospital for IV fluids and appropriate management, including a tox screen for C.diff. That is what the standard of care required. Instead, she prescribed an antibiotic for the assumed food borne bacteria, which has absolutely no effect on C.diff and which likely contributed to its growth and spread. Then, defendant Doctor failed to follow-up during the day with something as simple as periodic telephone calls to the facility to check on her patient. Had she done so she would have realized the precipitous decline in decedent’s condition which is documented in the chart as continued uncontrollable diarrhea, inability to get out of bed to go to the bathroom, unable to stand, unable to drink fluids without assistance, continued tachycardia and tachypnea, and confusion.

Finally, when the LVN contacted defendant Doctor by telephone at 9:30 p.m. on November 23 to alert her that decedent was worse with continued diarrhea, weakness and confusion, she did not examine her patient or even consider examining her patient, did not ask for the pulse, respiratory rate or temperature. Instead, she simply asked if the vital signs were stable, then accepted the LVN’s assertion that they were. In fact, decedent suffered tachycardia, tachypnea, was in respiratory distress, and was deathly ill and needed to be emergently transferred to the emergency department. Defendant Doctor did not understand the severity of the situation, and instead simply ordered some tests to be done the next day. This was her final act of malpractice.


As stated above, neglect is the negligent failure of any person having the care or custody of a dependant adult to protect him from health and safety hazards, or failing to provide necessary medical care. It is clear that defendant Doctor’s “care” of decedent was neglect.

Moreover, the negligent failure to protect decedent and provide necessary medical care was reckless. Defendant Doctor admits that she knew about Clostridium difficile and that it can be life-threatening, nonetheless she completely disregarded it as a cause of decedent’s diarrhea and sickness. Instead, she consciously chose a course of conduct that was contraindicated and that had probable injurious consequences. She twice prescribed anti-diarrheal medication, and prescribed a broad spectrum antibiotic, that actually allowed the C.diff infection to spread and flourish, eventually causing death.

Under these circumstances, defendant Doctor is subject to liability for the heightened remedies under W&I Code section 15657 of decedent’s pre-death pain and suffering, punitive damages, attorney fees and costs.


The staff at Confidential facility is guilty of neglect of a dependant adult, causing injury and death. The corporate owner is vicariously liable.

The staff negligently failed to protect decedent from harm, and failed to provide medical care, which contributed to his death.

  • During the afternoon of November 22, after the doctor saw decedent and prescribed the anti-diarrhea medication, the staff became aware that decedent had developed rectal incontinence. The note at 2:20 p.m. documents that decedent had soiled himself three or four times requiring a change of clothes. This was a significant worsening of decedent’s condition, but the doctor was not informed.
  • During the morning of November 23 decedent had tachycardia and tachypnea but this important information was not communicated to defendant Doctor during the telephone conversation at 9:15 a.m.
  • Throughout the entire day of November 23 decedent’s condition continued to worsen. The uncontrollable diarrhea worsened, he had worsening tachycardia and tachypnea, he was so weak that he could not get to the bathroom, he had difficulty getting out of bed so the staff could clean his diarrhea soiled bed, and he could not even drink fluids without assistance. The staff was absolutely aware of this because they checked on him every 15 minutes, as he was on safety precautions due to his declining mental state which was likely the result of the uncontrolled infection, dehydration, and failing organs. Nonetheless, no efforts were made to make the doctor aware of this or to obtain medical care for decedent, when he should have been emergently taken to an acute care hospital.

This negligence caused the wrongful death of decedent, and the employer is vicariously liable to the parents for their loss. This neglect committed by the facility’s employees was not professional negligence in the providing of medical care, but rather a failure to carry out custodial obligations, i.e., the failure to provide medical care. As such, the parents’ claim of wrongful death against the facility and its corporate owner is not based on medical malpractice which has a cap on damages; it is based on conduct that is outside of MICRA.

Moreover, the neglect of the staff was reckless. The staff involved in the “care” of decedent were Mental Health Workers, Licensed Vocational Nurses and Registered Nurses. All had received at least some training that would have caused them to realize how sick decedent was, and how life-threatening the situation had become as of November 23. In this situation the conscious and knowing failure to inform the doctors or obtain necessary medical care was reckless because it increased the probability of harm to decedent, and clearly contributed to decedent’s needless suffering and eventual death.

It has been determined that none of the staff responsible for decedent were terminated, reprimanded in any way, or even provided with retraining after the failure to protect Waiss from harm or provide him with medical care. This amounts to ratification of the wrongful conduct, and subjects the employer to liability for the damages caused by its employees, including the heightened damages under the W&I Code for dependant adult neglect.

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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