Personal Injury Law

Sacramento Woman Subject To Reckless Conduct At Nursing Facility, Part 5 of 12

By Moseley Collins, Esq.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

"Recklessness" Under the Elder Abuse Act

Once neglect is satisfactorily pled, the next question become whether Plaintiff has pled factual allegations that support a claim that the alleged neglect amounted to recklessness (i.e., a conscious disregard of rights or safety), oppression, fraud, or malice, which would then entitle Plaintiffs to the heightened remedies available under the Elder Abuse Act. Defendants claim that Plaintiffs have not pled sufficient facts showing intentional conduct. (Demurrer, 6:24 - 26.) However, a showing of intentional conduct is not required to state a claim for elder abuse. The term recklessness, which can be a species or quality of negligence, is not an intentional tort. California Elder Law Litigation: An Advocate's Guide, § 2.44. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Delaney v Baker (1999) 20 Cal.4th 23, 31, the California Supreme Court explained that recklessness under the Elder Abuse Act refers to a subjective state of culpability greater than simple negligence, which has been described as deliberate disregard of the high degree of probability that an injury will occur [citing BAJI 12.77 (defining recklessness in the context of an intentional infliction of emotional distress action)]. (See California Elder Law Litigation: An Advocate's Guide, § 2.44.) For purposes of the Elder Abuse Act, California Civil Jury Instruction ( CACI ) 3113 has adopted that standard, stating that a defendant acts with recklessness if he or she knew it was highly probable that [his or her] conduct would cause harm and [he or she] knowingly disregarded this risk, and that recklessness is more than just the failure to use reasonable care. Id.

Full post as published by Sacramento Injury Lawyer Blog on August 29, 2010 (boomark / email).