Medical recklessness claims in California

Recklessness is a term of art. The law defines recklessness as a subjective state of culpability greater than simple negligence and a deliberate disregard of the high degree of probability that an injury will occur. Unlike negligence, recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions, but rather rises to a level of a conscious course of action … with knowledge of the serious danger to others involved in it.

Proving that a hospital or other medical facility was engaged in reckless conduct is a multilayered undertaking. One of the best ways to demonstrate recklessness is to show that the actions are part of a bigger pattern of abuse or negligent behavior. However, in many instances an attorney need only show a single incidence of recklessness to a judge or jury. These “lone instances” will still demonstrate how a hospital ignored all manner of rules and regulations which led to the client’s suffering.

Identifying and proving systemic failures is incredibly complex because plaintiffs are frequently already at a disadvantage due to their limited mental or physical state. This often leads to a claim being filed by a relative or guardian.

Let’s discuss some of the intricacies of medical negligence and elder abuse lawsuits and key elements plaintiffs’ lawyers need to know before accepting a case.

Approaching recklessness

Recklessness claims can be filed in tandem with nursing home and elder care lawsuits, where the neglect or abuse persists for a long period of time or continually repeats. For example, it is well established that turning a sedentary patient will prevent bed sores. But if the patient is not turned at regular two-hour intervals, the bed sores can emerge, and compromise their well-being, making them susceptible to skin breakdown, infection or other illnesses.

The patient may not have been turned because the staff knowingly abdicated their responsibility or the facility was understaffed, among various other reasons. If it happens once, it might be considered negligent; twice or more could be reckless.

When this cycle of irresponsibility and inaction is tolerated by the facility’s administration or is happening with their knowledge, it epitomizes the concept of recklessness.

Evidence gathering, establishing the pattern

Recklessness claims at times involve violent or unstable patients who have access to and harm other patients. For example, when patients are forced to be roommates but both have special medical and psychological needs, the scenario essentially becomes a ticking time bomb – particularly if either patient has a history of aggression. This is the origin point for many negligence and recklessness claims against medical facilities, hospitals, psychiatric units and nursing homes. When complaints are raised to hospital or facility administration but the violence and injuries persist, the plaintiff may have a legitimate claim.

When gathering evidence, the lawyers will take depositions of staff, patients, managing agents, and other witnesses. Furthermore, they may be able to secure several documents, including:

•An incident report from the facility, which includes the interventions of the staff.

•The medical history of the plaintiff and any other patients involved.

•Risk assessments, if any, compiled by the staff;

•Policies and procedures of the facility;

•Staffing “fitness” documents; facility census documents, and other documents that may be pertinent depending upon the facts of the case.

It may take a long time to access the other patient’s full medical history due to HIPAA laws and protections (if at all). Through these materials, the plaintiff’s lawyer can connect the dots of the aggressor’s behavioral patterns and craft a narrative of the patient’s behavior against the backdrop of the facility’s recklessness. For example, the aggressor may have been receiving involuntary or voluntary treatment via the Lanterman-Petris-Short Act (LPS), a California law which addresses the rights of mental health consumers.

The LPS details the criteria for short-term and long-term holds applicable to those unable to properly care for themselves due to a mental disability or might be a danger to themselves or others. Patients are frequently admitted to the unit involuntarily because of the safety and mental health risks and become known within the healthcare system or facility. Under certain LPS criteria the patient might be held from 72 hours to 14 days, depending on their risk factor.

If you can establish that the aggressor had a history of violent behavior toward other patients during their stay – which could be weeks or even months if regularly readmitted – it can serve as the catalyst for the deeper investigation into the incident reports and the actions and inactions of the facility and staff. While there is always an inherent risk of aggression, patterns often emerge when preventative steps are not taken.

Recklessness trends and resolutions

Psychiatric facilities and nursing homes are not glamorous places to work. Turnover is high, and oftentimes these facilities might be underfunded, and have a staff that is mismanaged, poorly trained or simply may not have enough employees. These are some of the reasons administration or staff might display a numbness to the chaos; they often already know about the patient’s conditions or tendencies, but placing him or her on constant observation and/or in a private room may not be possible due to the financial considerations imposed by the facility’s administration – also known as profits over people approach.

It is when no concerted effort is made by the facility to prevent repeated dangerous behavior that the institution becomes liable for putting patients at risk. For example, BHC Alhambra, a psychiatric hospital based in Rosemead, California, has been a defendant in several abuse and neglect cases.

•In 2012, a $5.9 million verdict was obtained against BHC Alhambra in a case where a mentally unstable patient of the hospital beat another patient so violently that he was found face down, bleeding from a head wound.

•A year later, a bipolar patient reportedly removed his own eyeball while hospitalized at BHC.

Other claims have been made against BHC Alhambra and are indicative of the importance of dependent adult neglect claims, and underscore the need for better protections against recklessness in health care.

Recklessness claims on the rise

California doesn’t have damage caps on compensatory damages for personal injury lawsuits, except for medical malpractice cases. Up until January 2023, California medical malpractice cases had a $250,000 cap on pain and suffering and other non-economic damages. However, recklessness falls under the umbrella of dependent adult abuse/neglect, which is not capped in California, and thus such claims are likely to continue to be filed and hopefully make a difference in patient care.

Identifying and proving recklessness against the backdrop of a larger systemic failure is incredibly challenging. But it is also incredibly rewarding to know that legal advocacy can change or correct these patterns – and hold those responsible and accountable for their conduct.

Each resolution should serve as a message to administrators that dependent adult neglect claims highlight the need for efficient risk frameworks that keep patients safe and living in dignity.