Wrongful death cases often arise from incidents of elder abuse. While we expect the hospitals and nursing homes to provide the best of care to our parents and other elderly family members, that is sadly not always the case. Although professional negligence–i.e., medical malpractice–is not necessarily elder abuse as defined by California law, in extreme cases of neglect, family members of a deceased patient may have a valid wrongful death claim.
VA’s Neglect Blamed for Elderly Father’s Fatal Head Injury
This includes potential claims against the government in its capacity as a provider of healthcare services. For example, there is currently a wrongful death and elder abuse case pending in northern California against the federal government. The victim in this case was admitted to a Department of Veterans Affairs hospital in Palo Alto following a heart attack.
The attending physicians prescribed the victim blood thinners and noted on his chart that he was at “high risk” for falling. Despite this warning, hospital staff apparently left the victim “in a chair, unattended and unrestrained, for approximately 40 minutes.” While unattended, the victim fell from the chair and sustained a serious head injury. He died about a week later, and a subsequent autopsy confirmed that the head injury was the cause of death.
The victim’s three adult children sued the government for wrongful death and elder abuse. The court was forced to dismiss two of the children from the lawsuit due to a jurisdictional problem. There are special rules that apply when suing the government, with which the two children did not comply. The court allowed the remaining child’s claims to proceed and denied the government’s motion to dismiss the elder abuse charge.
The government’s position is fairly straightforward: “Seating a patient in a chair for 40 minutes” does not qualify as elder abuse under California law. The judge disagreed and noted that there were “troubling” allegations that at the time of his fall, the victim “had infections in his lower extremities” including a “black and gangrenous” right foot. Given this, as well as the doctor’s notation that the victim was at “high risk” of falling, the VA staff’s failure to carry out any type of restraint protocol could demonstrate “deliberate disregard of the high degree of probability that an injury would occur,” which is sufficient to support an elder abuse claim.
Taking a Stand Against Elder Abuse in California
It is important to note that the judge did not rule on the merits of this lawsuit. He merely found the victim’s family presented enough evidence to justify presenting the case to a jury. It bears repeating that not every act of medical malpractice or neglect constitutes elder abuse. California law specifically refers to cases in which a caretaker denies or withholds services “either with knowledge that injury was substantially certain to befall the elder” or where, as alleged in the case above, there is “conscious disregard of the high probability of such injury.”
If a member of your family has been seriously injured, or even died, as the result of elder abuse, you should speak with a qualified Pasadena personal injury lawyer who can review your case and help you determine an appropriate response. Call Strassburg, Gilmore, & Wei, Attorneys at Law at (626) 683-9933 to schedule a consultation today.