Defense Verdict in Elder Neglect Per Se Trial

Green v. Chase Care Center

In February, 2008, Beach | Whitman | Cowdrey attorneys secured another defense verdict for its client in an elder abuse lawsuit in the San Diego Superior Court. This lawsuit arose out of the nursing care and treatment of an elderly Alzheimer’s patient at a skilled nursing facility in El Cajon, California. The case generally centered around the resident’s development of a wound on her right foot, which resulted in a partial amputation, and the development of bilateral knee contractures. The plaintiff contended that the defendant was liable for elder abuse, neglect, negligence per se and medical malpractice by the facility staff. She sought damages for past medical expenses, past and future pain and suffering and attorney’s fees. Plaintiff was permitted, over defendant’s objection, to introduce the testimony of a health facilities evaluator nurse from the Department of Health Services, who issued a deficiency to the skilled nursing facility for allegedly failing to assess the resident’s right great toe for a change of condition. The defendant contended that the resident’s alleged injuries were caused by the inevitable and natural progress of her multiple disease processes and her daughter’s non-compliance with treatment orders. Defendant maintained that its care and treatment of the plaintiff was within the standard of care within the skilled nursing community and denied that it caused or contributed to plaintiff’s alleged injuries. The jury agreed, finding for the defendant on all claims.

Of particular significance during trial was the Court’s order allowing plaintiff to amend her complaint to add elder abuse and neglect per se claims. Although these claims had previously been stricken from the complaint, the trial judge allowed the amendment based on evidence that the hospital administrator was aware of many family allegations and complaints of poor care but took no action to intervene. Upon the new claims, the judge gave jury instructions based on the concept of elder neglect per se.