Personal Injury Law

Sacramento Family Seeks Punitive Damages For Death At Nursing Home, Part 17 of 20

By Moseley Collins, Esq.

It is 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, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

Remedies Available To Plaintiffs Under The Elder Abuse Act

Emma Hill's Pain And Suffering

Under the Elder Abuse Act, pain and suffering survive the death of a victim of neglect. According to the operative section, "the damages recovered [for a decedent's pain and suffering] shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code. Cal. Welf. & Instit. Code § 15657." Plaintiffs maintain that Section 3333.2 does not in any way limit plaintiffs' recovery because it only applies to "any action for injury against a health care provider based on professional negligence." Cal. Civ. Code § 3333.2(a). As discussed in greater detail below, plaintiffs' action does not sound in professional negligence but, instead, is an elder abuse action. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As the California Supreme Court recently has reaffirmed, an elder abuse action is separate and distinct from a professional negligence cause of action. Covenant Care, Inc. v. Superior Court, 32 Cal. 4 th 771 (2004) ( [A]s we explained in Delaney, "neglect" within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from "professional negligence.") Based on this reasoning, California courts repeatedly have found that MICRA provisions, of which Civil Code section 3333.2 is one, do not apply to elder abuse actions. See id (MICRA provision found at CCP section 425.13 does not apply to elder abuse causes of action). (See Part 18 of 20.)

Full post as published by Sacramento Injury Lawyer Blog on December 21, 2010 (boomark / email).