The Tragedy Of Elder Abuse: Outrageous Misconduct By A Residential Care Facility That Resulted In Death By Starvation And Dehydration. A True Story
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The Tragedy Of Elder Abuse: Outrageous Misconduct By A Residential Care Facility That Resulted In Death By Starvation And Dehydration. A True Story

The following is a true case report of elder abuse and death caused by a Residential Care Facility in California and is taken verbatim from the complaint filed in the Superior Court.

The names and dates have been changed to protect the privacy of the family of this tragically abused elder who died of starvation and dehydration. The old adage to "watch your children well" also applies to your parents when a nursing home or residential care facility is the only option.

The legal case against this Residential Care Facility is now closed, but the story needs to be told and for that reason the allegations of the complaint filed in this case are reported here.

Rest well John Smith, you never should have died this way.

Thank you to the Smith Family for allowing me to bring this case to justice.

John Smith, Deceased v. Happy Hours Residential Care Facility for the Elderly

At all relevant times, John Smith was a person who was older than 65 years of age and under the provisions of Penal Code § 368(a) was at all relevant times an "elder" under California law and a "senior citizen" pursuant to Civil Code § 1761. The California Supreme Court has recognized that elders are "among the most vulnerable persons in our society" and the Legislature has adopted special legal protections for elders from abuse and neglect.

Despite those protections, John Smith died on April 10, 2002 as a result of outrageous and painful abuse and neglect, which was inflicted on him as a resident of Defendant Happy Hours Residential Care Facility for the Elderly, and which caused him to suffer:

* profound dehydration * gangrene in both feet * sepsis * pneumonia and * acute renal failure, plus * pressure ulcers, bed sores, urine burned skin, and open wounds, all of which were caused by Defendant Happy Hours and which are confirmed in the attached record of History and Physical Examination by Dr. David Clark at Valley Hospital on March 29, 2002.

Death Caused by a Residential Care Facility for the Elderly

From February 22, 2002 until he was rescued from severe abuse and neglect on March 29, 2002, John Smith was a resident of, and victimized by, Defendant Happy Hours Residential Care Facility, a business organization of unknown form, which was and is in the business of providing 24-hour residential care for the elderly and known as a Residential Care Facility for the Elderly or RCFE.

Pre-Admission RCFE Appraisal and Approval

Before the admission of John Smith to Happy Hours, Defendants, and each of them, on or about January 25, 2002 initiated a home visit at which time John Smith was evaluated for entry to Defendant Happy Hours and thereafter Defendants, and each of them, upon information and belief, prepared, as required by law for the operation of a Residential Care Facility for the Elderly:

* a pre-placement appraisal form

* an appraisal of needs and service plan

* an admission agreement and

* in addition, obtained, a physician's report.

Following this appraisal and evaluation, Defendants, and each of them, approved John Smith for entry to Happy Hours as a "cash" customer.

Promises Made by Defendants

Beginning on or about January 25, 2002 at the home of John Smith, Deceased, and thereafter on two additional occasions before John Smith's entry to Happy Hours's RCFE on the premises of the RCFE, Defendants, and each of them, through Jane Baker, Defendants' Director represented and said to Elizabeth Smith, Ellen Smith and/or Matthew Smith at various times: that they operated an excellent residential care facility; they were dedicated to the care of their residents; were qualified to provide the residential care required for John Smith ; would faithfully fulfill and perform their duties; would fairly provide purchased services for the fees requested and paid; would not take advantage of their relative power over John Smith by withholding residential care or services to him for their convenience, or other purpose, including profit; would provide John Smith with all appropriate assistance and residential care; and would be committed to John Smith's needs. In making these representations Defendants, and each of them, engaged in unfair acts and practices prohibited by California Civil Code § 3345 because at all relevant times, Defendants, and each of them, made such representations knowing that they did not operate an excellent residential care facility, were not dedicated to the care of their residents, were not qualified to provide the residential care required for John Smith, would not faithfully fulfill or perform their duties, would not fairly provide purchased services for the fees paid, would take advantage of their superior power over John Smith by withholding residential care and services for profit, would not provide John Smith with all appropriate assistance and residential care, were not committed to John Smith's needs, did not intend to provide John Smith with quality residential care, and secretly were committed only to maximizing their profits to the ultimate detriment of John Smith .

John Smith and His Family Trusted and Relied Upon Defendants

John Smith and his family, being ignorant of the true facts and intentions of Defendants, and each of them, reasonably believed that John Smith would receive quality care from Defendants, and each of them, relied up the each of the above representations of Defendants, and each of them, made the grave error and mistake of selecting Defendants' Residential Care Facility for the Elderly for John Smith and as a result of Defendants' misrepresentations did pay in a timely manner all fees required and requested by Defendants, and each of them, for residential care and services for John Smith, which were never provided. Had they known the true facts Plaintiffs never would have allowed John Smith to become a resident of Defendants' Residential Care Facility for the Elderly, never would have paid the fees demanded and never would have suffered a substantial loss of their personal assets which were essential to the health and welfare of John Smith and Plaintiff Elizabeth Smith.

John Smith and Plaintiffs placed in Defendants, and each of them, their trust and confidence that Defendants, and each of them, would faithfully fulfill and perform their duties, more specifically set forth below, would provide excellent residential care facility, were dedicated to the care of John Smith, were qualified to provide the residential care required for John Smith, would faithfully fulfill and perform their duties, would never take advantage of their superior power over John Smith by withholding residential care and services for profit, would provide John Smith with all appropriate assistance and residential care, were committed to John Smith's needs, intended to provide John Smith with quality residential care, and secretly were not committed to garnering a profit at the expense of the health and life of John Smith .

Defendants, and each of them, accepted this trust and confidence knowing John Smith was dependent upon Defendants, and each of them, to faithfully and carefully fulfill their duties, thereby creating a fiduciary relationship of trust and fiduciary duties owned by Defendants, and each of them, to John Smith to provide him with all appropriate assistance and residential care.

Happy Hours as an RCFE Owed Significant Duties to John Smith

Upon John Smith becoming a resident of Happy Hours, Defendants, and each of them, promised and agreed to provide to John Smith the following care, and in addition, Defendants, and each of them, were duty bound to provide John Smith with adequate care, including, but not limited to:

* basic nutrition and hydration - food and water

* safe and healthful living accommodations and services

* continuous observation, care and supervision as required

* assistance with the Activities of Daily Living: bathing, dressing, grooming, toileting, bowel and bladder control, transferring to and from bed and eating

* regular observation of physical and mental condition

* monitoring of activities to insure general health, safety and well being

* assistance in meeting necessary health needs

* assistance with hygiene, nutrition and personal needs

* careful assistance to avoid injuries in transferring

* monitoring to identify any physical distress from the failure to provide basic nutrition, hydration, failure to provide safe and healthful living accommodations, or from any cuts, bruises, skin irritation, pressure ulcers, or other conditions

* reports of any failure to provide basic nutrition, hydration, or any failure to provide safe and healthful living accommodations to Defendants' registered nurse, a licensed physician and to Plaintiffs

* reports of injuries [cuts, bruises, skin irritation, pressure ulcers, etc.,] to Defendants'

registered nurse, a licensed physician and to Plaintiffs

* regular re-appraisals and updating of appraisals to note significant changes and to assure accuracy and reporting of the same to Plaintiffs

* re-appraisals any time there was physical trauma, illness or injury to Defendants'

registered nurse, a licensed physician and to Plaintiffs

* referral to Defendants' registered nurse, a licensed physician, other appropriate care providers for John Smith's for physical needs [including, but not limited to, injuries, open wounds, bed sores, pressure ulcers, skin irritation, or gangrene], any failure to provide water and fluids or any failure to provide safe and healthful living accommodations

* referral to appropriate care providers when John Smith was unable to perform the Activities of Daily Living

* timely notice to qualified physicians of critical changes in John Smith's medical well- being

* timely notice to John Smith's family of critical changes in his health, physical condition, the occurrence of any injuries or referrals to healthcare providers

* never concealing from John Smith's family any critical changes in his physical condition, including any open wounds, pressure ulcers, bed sores, skin irritation, gangrene, and profound dehydration or in the ability and capacity of Defendants, and each of them, to provide all promised services

* providing properly trained and supervised personnel who were competent to provide all of the above services and

* protecting John Smith from health and safety hazards, the denial of fluids and water and, most importantly, from any condition or circumstances whenever it was foreseeable that John Smith might be harmed by not taking all appropriate action to prevent injury.

In addition upon his becoming a resident of Happy Hours, Defendants, and each of them, had a duty not to accept or retain John Smith as a resident when Defendants, and each of them, could not properly serve him and could not perform their duties.

Happy Hours Breached All of Its Duties to John Smith and his Family

At all relevant time during the residency of John Smith at Happy Hours from February 22, 2002 through March 29, 2002, when he finally was rescued, Defendants, and each of them, continually breached all of their duties to John Smith, which include, among other breaches, not continually assessing John Smith, not developing an individualized plan of services, not providing fluids and water, not monitoring, and not notifying Plaintiffs, John Smith's doctor or any doctor when changes in John Smith's condition occurred.

At a time unknown to Plaintiffs, but before March 29, 2002, Defendants, and each of them, knew that John Smith was not able to conduct the Activities of Daily Living, had not taken fluids and was suffering from profound dehydration, had been denied healthful living accommodations, was incontinent of bladder, remained in a urine soaked bed and as a result suffered skin infections and irritations, had suffered trauma resulting in open wounds to his toes which had progressed to gangrene, and had severe pressure ulcers on his heels which had progressed to gangrene, among other severe life threatening conditions. Notwithstanding such knowledge Defendants, and each of them, concealed from Plaintiffs John Smith's true condition and did not report his condition to Plaintiffs.

Notwithstanding Defendants' knowledge, at no time did Defendants, or any of them, conduct a Legislatively mandated re-appraisal "as frequently as necessary to note significant changes and keep appraisals accurate." Furthermore, Defendants, and each of them, retained John Smith as a resident when they could not fulfill their duties and promises to provide the assistance and care set forth above and refused to notify Plaintiffs, John Smith's physician or any doctor of the need to transfer John Smith to a skilled nursing facility; Defendants, and each of them, decided upon and followed a course of non-action, omission and concealment in order to keep John Smith as a source of income and profit. For example on March 28, 2002, Defendants' employee reported to Plaintiffs Matthew Smith and Elizabeth Smith that John Smith had enjoyed a "good lunch," which could not be the case in light of the diagnosis made the following day at Valley' Hospital.

John Smith's Death Was Caused By Defendant Happy Hours

As a direct, legal, substantial and proximate result of the acts and omissions of Defendants, and each of them, medical doctors who examined John Smith on March 29, 2002 diagnosed him as suffering from:

* profound dehydration * gangrene in both feet * sepsis * pneumonia * acute renal failure * pressure ulcers and bed sores * open wounds * unjustifiable physical pain * severe mental and emotional distress and suffering and * other serious personal injuries.

See the attached record of History and Physical Examination by Dr. David Clark at Valley Hospital on March 29, 2002 and the attached photographs of April 2, 2002 of John Smith's bed sores and gangrene taken by doctors at Valley Hospital, which are incorporated by reference as though fully set forth.

These injuries and conditions each endangered the health and person of John Smith and not only were "likely to produce great bodily harm or death" but in fact did cause John Smith to suffer great pain, suffering and emotional distress and were the direct, legal, substantial and proximate cause of his death on April 10, 2002, all in violation of Penal Code § 368.

Special Considerations in this Case

This statement of facts provides the basis for the Survival Action brought by and on behalf of the Estate of John Smith by and through his successor-in-interest, Matthew Smith and, in addition, serves as the basis for the separate and distinct claims for the wrongful death of John Smith brought by his heirs, as more fully described below.

The Survival Actions seek all damages caused as a direct, proximate and legal result of the negligence, intentional tort, fraud and breach of statutory duties committed by Defendants, and each of them, including pain, suffering, mental and emotional distress, the hospital and medical expenses incurred as a result of the acts of Defendants, and each of them and return of monies paid for residential care which was not provided.

California's Elder Abuse and Dependent Adult Civil Protection Act specifically provides and authorizes that, unlike any other civil action under California law for non-elders, John Smith's claims for damages for pain, suffering and severe mental and emotional distress survive his death and are properly collectible in this action. For that reason the Survival Actions are brought by John Smith's successor-in-interest on behalf of the Estate of John Smith, as if John Smith were alive today and making these same claims himself.

The Wrongful Death Action is a separate and distinct cause of action brought by the heirs of John Smith, as a direct, proximate and legal result of the acts of Defendants, and each of them, which have caused Plaintiffs to suffer the loss of the love, care, comfort and society of John Smith and in addition Plaintiffs have been damaged in the amount of the expenses related to his funeral.

The Plaintiffs Bringing these Separate Legal Actions

Plaintiff in the Survival Action: Plaintiff Matthew Smith is the son of John Smith, Deceased is the Successor in Interest of the Decedent, has complied with the provisions of CCP § 377.32 and brings the survival actions on behalf of the Estate of John Smith, pursuant to Welfare and Institutions Code § 15657.3(d).

Plaintiffs in the Wrongful Death Action: The plaintiffs bringing the action for wrongful death are: Plaintiff Elizabeth Smith the surviving widow of John Smith and Matthew Smith, individually and as the personal representative on behalf of the daughters and sons of John Smith : Shelley Thomas, Dorothy Callan, Ellen Smith, Michael Smith and Matthew Smith. Plaintiff Elizabeth Smith was born on June 21, 1926, is age 75, was married to John Smith and for that reason has a substantial interest in this action; she respectfully petitions this court for a preferential and earliest trial date pursuant to California Code of Civil Procedure § 36.

Special Legal Protections Under the Facts of this Case

At all relevant times, under Civil Code § 3345 the acts of Defendants, and each of them, constituted unfair and deceptive acts and practice and unfair methods of competition for the following reasons: first, Defendants, and each of them, knew that Defendants' conduct was directed to a senior citizen; second, Defendants' conduct caused John Smith and Plaintiff Elizabeth Smith to suffer substantial loss of their personal assets which were paid to Defendants and which were assets essential to the health and welfare of John Smith and Plaintiff Elizabeth Smith; and third, John Smith as a senior citizen was "substantially more vulnerable than other members of the public to the conduct" of the Defendants because of his "age, poor health, infirmity, impaired understanding, restricted mobility" and actually suffered "substantial", in this case lethal, physical injuries and outrageous emotional damage caused by the Defendants, and each of them. For these reasons Plaintiffs are entitled to all special relief provided by § 3345.

In addition the Estate of John Smith in this survivor's actions is entitled to reasonable attorneys fees pursuant to Welfare and Institutions Code § 15657 (a) and costs for bringing this action for the abuse, neglect and batteries suffered by John Smith and by the prolonged and continual mistreatment that John Smith was caused to suffer.

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