Facts

The decedent was an 84-year-old man suffering from a terminal illness. He had been a President of a college in North Dakota, and was a lifelong educator. Also a family man, he was married for 61 years and had three adult children, all professionals. He and his wife had moved to the Palm Springs area for retirement to be nearer to two of those children and their grandchildren.

By March 14, 2007, the decedent's condition began to deteriorate and he required 24-hour care. The defendant hospice care provider advertised itself as one of the nation's largest providers of end of life care with the majority of its business spent caring for terminally ill patients in their own home. The hospice care was in the form of three shifts.

One of the aides in particular, "Jack," was the home health aid who began coming to the house daily to care for decedent beginning about March 16, 2007. On March 19, 2007, his wife noticed that Jack was taking an unusually long time assisting her husband to the bathroom. Concerned, she decided to check and make sure everything was all right. She walked down the hall and looked into the bathroom through the second bathroom door.

To her shock and horror, she witnessed Jack licking the decedent's genitals. He was a helpless dying old man and was clearly vulnerable prey for this caregiver. Jack denied the act. The decedent and his wife told his doctor who reported the incident to the hospice care provider and later to the Riverside County Sheriff's Department. No charges were ever brought. The company terminated Jack after its own investigation, but the decedent lived his last weeks of life in fear of retaliation from Jack, expressing to his wife and children this fear and concern that no one would help him in his last days. He was ashamed, and his wife and children were angered. They demanded an apology and wanted a full investigation and explanation from the hospice care provider, but instead were told this was now a legal matter and that no further investigation could be gained.

The decedent passed away on April 17, 2007.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that rather than preserving dignity, the defendant's employee acted in a most despicable manner. It was the hospice care provider's responsibility to properly screen employment candidates and to adequately supervise them after taking them on as their employees, and they acted recklessly by allowing Jack to be employed with them.

The purpose of California's Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Recklessness under California's Elder Abuse Act requires only that the defendant have knowledge of a high degree of probability that dangerous consequences will result from his or her conduct and acts with deliberate disregard of that probability or with a conscious disregard of the probable consequences.

The plaintiff also contended that defendant knew or should have known of the high degree of probability of danger to its elderly patients should they fail to adequately and properly screen and supervise its employees.

Settlement Discussions

The plaintiff demanded $375,000 pre-mediation. No offer was received. Initially, the defense offered $50,000. The negotiations ended with representatives for the hospice care corporation taking responsibility for the acts of Jack, apologizing to the family, and agreeing, in exchange for confidentiality, to pay $225,000. They also expressed an intention to exercise enhanced screening procedures in the future, and to be more responsive to such families once an incident arises in the future instead of considering it a legal matter and not communicating with the victim's family.

Injuries

Emotional distress.

Result

The case settled for $225,000.