Articles Posted in Elder Abuse

Plaintiffs appealed from a judgment following a jury verdict in favor of the defendant in a California elder abuse action arising from the medical care and death of an elderly woman. On appeal, they challenged the special verdict form, the jury instructions, the exclusion of evidence, and the conduct of the jury. The Third District California Court of Appeal affirmed.The decedent had chronic obstructive pulmonary disease and pneumonia. Upon admission to the defendant’s facility, her life expectancy was at most a “few months,” her chance of leaving the hospital was “darned close to zero,” and she would never “continuously” be off a ventilator. According to one expert, her life expectancy at the time of her admission “would be a few months only if aggressive measures were taken that most physicians would not conscience in a patient because of the pain and suffering it caused the patient. It only lasted for a few months because they persisted in care that I know they didn’t want to give.”

Since the decedent was on a ventilator, her arterial blood gas had to be monitored. The defendant did this by using needles, rather than an arterial line (a fixed line inserted into an artery) from which blood could be tapped and then tested. Using needles was more difficult than in an ordinary patient because of the decedent’s extreme bodily swelling. But expert testimony showed that inserting an arterial line would have required cutting into the decedent and exposing her to infection—to which she was already woefully prone—and that the decision whether or not to use so-called “blind sticks” fell within a physician’s standard of care. Furthermore, the decision did not harm the decedent.

Because of her condition, the decedent’s body would weep fluid, requiring replacement fluid to be given to maintain blood pressure and circulation. One expert thought the decedent was overloaded with fluids, and dialysis should have been started promptly after her admission to combat this problem. He called this “anasarca” or “Michelin Man syndrome,” and he was of the opinion this made further care “almost futile.” But he faulted the physicians for this, rather than the defendant. Also, there was testimony the amount of fluids given to the decedent was the same she had received before, and any overload was due to the failure of her circulatory system and other problems.

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