Elder Abuse and Medical Malpractice at Adult Day Health Care Facilities

For many years now we have been seeing a steady increase in the number of Adult Day Health Care (ADHC) centers in California. ADHCs provide an invaluable service to the elderly at a time in their lives when they are most lonely, vulnerable, unable to care for themselves and can be subjected to elder abuse or neglect. Nevertheless with the increase in the number of these facilities, there has also been an increase in the number of injury claims stemming from activities at ADHCs. As attorneys practicing in the personal injury field, we have to be familiar with the various functions ADHCs perform and the various causes of action that may arise when a client is injured at one of these facilities. But first some background information on Adult Day Health Care in California itself.





Adult day health care providers are licensed by the Department of Health Services (DHS) Licensing and Certification Division as health facilities. The California Department of Aging (CDA) administers the program and certifies each center for Medi-Cal (California’s Medicaid State Plan) reimbursement. Licenses are not issued or renewed for an ADHC center that is not certified as a Medi-Cal provider of ADHC services. ADHC providers must meet, at a minimum, the licensing requirements specified in Health and Safety Code, Chapter 3.3; the certification requirements specified in Welfare and Institutions Code, Chapter 8.7; and additional requirements specified in the California Code of Regulations (CCR), Title 22.





Adult day health care means an organized day program of therapeutic, social, and health activities and services provided to elderly persons with functional impairments, either physical or mental, for the purpose of restoring or maintaining optimal capacity for self-care. Provided on a short-term basis, ADHC serves as a transition from a health facility or home health program to personal independence. Provided on a long-term basis, it serves as an alternative to institutionalization in a long-term health care facility when 24-hour skilled nursing care is not medically necessary or viewed as desirable by the recipient or their family. Adult day health center or adult day health care center means a licensed and certified facility that provides ADHC, or a distinct portion of a licensed health facility in which such care is provided in a specialized unit under a special permit issued by the department. ADHC facilities may serve persons 55 years of age or older and other adults who are chronically ill or impaired and would benefit from ADHC. Providers may not admit individuals for whom, in their clinical judgment, they cannot appropriately care. They may serve persons with dementia and other special needs populations, such as persons with developmental disabilities or persons with mental disabilities. Providers may discharge participants if they are unable or unwilling to use the prescribed services and ADHC staff have made every effort to remove possible obstacles.





Medicaid provisions for enrollment in ADHC specify that providers may serve individuals:


(1) With medical conditions that require treatment or rehabilitative services prescribed by a physician,


(2) With mental or physical impairments that handicap ADL (bathing, dressing, grooming) but which are not of such a serious nature as to require 24-hour institutional care, and


(3) Who are at risk for deterioration and probable institutionalization if ADHC services were not available.





ADHCs therefore provide the following services to their participants:





1. Health Education and Counseling


2. Health Monitoring/Health-Related Services


3. Medication Administration


4. Skilled Nursing Services


5. Physical Therapy, Occupational Therapy, or Speech Therapy


6. ADL Assistance (bathing, dressing, grooming)


7. Social Services


8. Transportation





ADHC centers are also required to provide medical services and psychiatric or psychological services.





To illustrate the analysis that goes into the drafting of a complaint against an Adult Day Health Care facility, I will use a couple of actual cases from my practice. The first one involved an elderly participant who was seated at a picnic-style outdoor table in the backyard of an ADHC. The table, usually found in picnic areas and public parks, can best be described as a one-piece where the two benches on both sides of the tabletop are all attached to one another. Accept this one was lighter, purchased at Costco and placed on an uneven ground surface. Plaintiff-participant was seated at the edge of the bench on one side, while 2-3 other people were seated closer to the other side on opposite sides of the bench. When these 2-3 people decided to leave and stood up, the table no longer balanced by the weight of all the originally seated persons, overturned onto the plaintiff causing her to fall on the ground and sustain a fractured arm and other injuries.





The second case involved a participant who for many years had been diagnosed with diabetes, which caused her to be legally blind (zero vision in one eye and 20% in the other) and obese with a lot of other cardio and gastroenterological issues. The ADHC had a doctor’s note in its records prescribing physical therapy for this participant. The medical records of the ADHC contained the full history of this participant, which talked about her blindness and various prior hospitalizations due to heart problems and other issues. Nevertheless the staff, which included a registered physical therapist and a registered nurse, decides that the physical therapy should include the treadmill machine for about 10-15 minutes during each of her visits and places her on the machine. Suffice it to say that on the second attempt to use this treadmill, the participant is left unattended, the machine automatically speeds up according to its programming, the participant is unable to see or otherwise use the controls to stop the machine, and so she is thrown off the machine and sustains a fractured shoulder and multiple other injuries. And in addition, due to her diabetes and heart condition she later goes into cardiac arrest at the emergency room and comes close to not surviving the ordeal.





Our first scenario with the picnic table is a relatively basic negligence, premises liability and possible product liability case. Anyone who would have been seated at the same table would have had these same causes of action to pursue if the table fell over on them. But since the injury occurred at an ADHC and our plaintiff is a participant, she has additional enhanced remedies afforded by the Welfare and Institutions Code section 15600, also known as the "Elder Abuse and Dependent Adult Civil Protection Act" (EADACPA), if one can show neglect by the ADHC. Neglect under the Elder Abuse and Dependent Adult Civil Protection Act means either:

• The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise; or




• The negligent failure to exercise that degree of care that a reasonable person in a like position would exercise.

Under the statute, neglect includes but is not limited to:

• Failure to assist in personal hygiene of in the provision of food, clothing or shelter.




• Failure to provide medical care for physical and mental health needs.




• Failure to protect from health and safety hazards.




• Failure to prevent malnutrition or dehydration.

In our case, the picnic table was arguably a safety hazard under the Elder Abuse statute (EADACPA), which was therefore plead as a cause of action in the complaint. The reason one should plead Elder Abuse is because of the enhanced remedies provided by EADACPA, which include the right to recover unlimited pain and suffering damages and up to $250,000.00 in pain and suffering even after the plaintiff’s death, as well as attorney’s fees and costs, which can be substantial in these types of cases and are not usually allowed in negligence actions. For the remedies under EADACPA to be available, it must be proved by clear and convincing evidence that the defendant is liable for physical abuse, neglect or fiduciary abuse and that the defendant has been guilty of recklessness, oppression, fraud and malice in the commission of the abuse. There is no statutory definition for the term "recklessness", which is usually described as something more than negligence. It must not only be unreasonable, but it must invoke a risk of harm to others substantially in excess of that which is necessary to make conduct negligent. California jury instructions state "A defendant’s conduct is in reckless disregard of the probability of causing emotional distress if he/she has knowledge of a high degree of probability that emotional distress will result and acts with deliberate disregard of that probability or with a conscious disregard of the probable results."








In our second example involving the treadmill, besides negligence and possible product liability issues related to the treadmill, one has to also analyze the Elder Abuse statute and the Medical Malpractice cause of action as well. Prescribing the treadmill, placing the legally blind participant onto the treadmill and/or failure to properly supervise the participant with a weak heart while she was on the treadmill, were all factors that require the addition of the medical malpractice cause of action to the complaint. Of course the same acts also qualify as failures to protect the participant from health and safety hazards described in the Elder Abuse statute, so it was plead as well. Note that in cases against licensed health care providers who are covered by MICRA (Medical Injury Compensation Reform Act of 1975) in order to receive the enhanced remedies under the elder abuse law, a plaintiff must prove some misconduct more than mere medical negligence. But the other crucial aspect of the Elder Abuse statute is that it gives the California plaintiff a two-year statute of limitations to work with versus the one year in medical malpractice cases (which can be extended by up to 90 days if the letter is sent to the medical provider before the statute expires).


Since ADHCs provide not only entertainment for their participants but also medical services, their liability base may include not only the usual negligence-based causes of action, but the Elder Abuse remedies and medical malpractice. Analysis of the issues discussed above is therefore crucial to the successful outcome of any case involving an Adult Day Health Care facility.





This article was written Vadim Liberman, an attorney who for over 20 years has been representing plaintiffs in personal injury cases. He can be reached at his law firm, Liberman Law Group at (877) 399 - 5877 toll free or at (323) 931-5577, or through his website www.la-accidentlawyers.com.