Nursing homes (also known rehabilitation homes or convalescent homes) are a type of care facility. They provide around-the-clock nursing care. A person (often an elderly person) sometimes must be placed into such a facility, after having surgery or following an illness or injury, so that he or she can be provided with the necessary treatment or therapy to recover.
Such facilities offer rehabilitative stays (for a short period of time) with twenty-four-hour care to ensure the patient’s treatment. Because of the patient’s weakened and ailing condition, nursing homes have, unfortunately, become places of potential abuse, where those entrusted with caring for the weakest and sickest amongst have used their entrusted positions of enrich their own pockets at the expense of the ill.
Indeed, Bloomberg News, recently reported in an article, entitled Nursing Homes are Pushing the Dying Into Pricey Rehab, that nursing homes are subjecting patients “to potentially unnecessary therapy that reaps significant financial benefits for cash-strapped facilities.” In this regard, the proportion of nursing home residents who received “ultrahigh intensity” rehabilitation increased by 65 percent from October 2012 to April 2016, according to research published in October 2018 by the University of Rochester.
California has passed several strict laws that enable loved ones to hold nursing homes that take advantage of the elderly accountable. In this regard, under both state and federal law, nursing homes have a statutory duty devote their resources to the care and treatment of patients (see 42 C.F.R. § 483.75), to maintain adequate staffing levels (see 22 Cal. Code Regs. § 72501, subd. (e)), and not to devote resources to maintaining or attaining profit goals, as “[a] physician cannot just walk away from a patient after accepting the patient for treatment.” (Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th 1123, 1138.)
Moreover, an action for negligence, willful misconduct, intentional infliction of emotional distress, constructive fraud, fraud, battery, false imprisonment, elder abuse, and wrongful death may be brought against a nursing home that has caused harm to a patient. (See, e.g., Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 777, 791 [allowing a complaint alleging willful misconduct, intentional infliction of emotional distress, constructive fraud, fraud, battery, false imprisonment, elder abuse, and wrongful death]; Delaney v. Baker (1999) 20 Cal.4th 23, 28 [involving a case tried to a jury on theories of negligence, willful misconduct, neglect of an elder as defined by the Elder Abuse Act, and wrongful death]; Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 430 [involving a case in which the plaintiff brought claims for willful misconduct, negligence, violation of residents’ rights, fraudulent concealment, elder abuse, unfair businesses practices, and wrongful death against two skilled nursing facilities].)
Below is the law related to such claims.
Negligence Against Nursing Homes
California law provides that “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” (Civil Code, § 1714, subd. (a).) In this regard, “‘[t]he elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.”‘” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)
Elder Abuse Claims
To state claim for elder abuse action, the plaintiff must state:
[F]acts establishing that the defendant (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (5) Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury must be pleaded with particularity, in accordance with the pleading rules governing statutory claims.
(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 [internal quotation marks and citations omitted].)
Intentional Infliction Of Emotional Distress Claims
For intentional infliction of emotion distress, “[t]he elements . . . are (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or severe emotional distress.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) “A defendant’s conduct is ‘outrageous’ when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [internal quotation marks and citations omitted].)
Moreover, “whether conduct is ‘outrageous’ is usually a question of fact.” (So v. Shin (2013) 212 Cal.App.4th 652, 672; Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1226 [“Whether such alleged behavior is sufficiently extreme as to constitute “outrageous” behavior is properly determined by the fact finder after trial or possibly after discovery upon a motion for summary judgment.”].) However, the emotional distress must be “substantial or enduring as distinguished from trivial or transitory.” (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397 [“emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it”].) Notably, evidence of lost sleep, stomach upset, and anxiety do not support emotional distress claims. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1355.)
Unfair Businesses Practices
To allege unfair business practices, the plaintiff must show that the nursing homes’s business practices were unfair, unlawful, or fraudulent. (Bus. & Prof. Code § 17200, et seq.) Thus, “there are three varieties of unfair competition under the statute: practices that are unlawful, unfair or fraudulent.” (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1416.) A fraudulent business practice is one likely to deceive the public. (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1134.).
A business act or practice is unfair when the conduct “threatens an incipient violation of an antitrust law or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 187.) To establish an unfair business act or practice, a plaintiff must establish the unfair nature of the conduct and that the harm caused by the conduct outweighs any benefits that the conduct may have. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.)
At Kashfian & Kashfian, LLP, we have experience with nursing home abuse cases, and as your counselor, we will fight vigorously on your behalf. Contact our offices to learn more about the services that we provide.
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