In Fenimore, The Court of Appeals Limits The Scope of Worsham

In Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, a patient brought an action against a hospital for elder abuse claiming that, as a result of understaffing and undertraining at the hospital, Worsham suffered a fall, breaking her hip.  In a case nearly devoid of analysis, the Worsham court held that allegations of inadequate staffing were nothing more than allegations of “professional negligence” and thus subject to the severe damage limitations set forth in MICRA.  Until Worsham, California case law was clear that a hospital’s conscious understaffing and poor training which led to injury were sufficient to state a cause of action for elder abuse.  Merron v. Superior Court (2003) 109 Cal.App.4th 1049, 1067. 
I indicated in a previous blog that the Worsham decision would cause confusion regarding the difference between elder abuse and professional negligence and indeed, that is what happened.  Thereafter, many elder abuse cases were subject to a pleading challenge to the point that plaintiff’s attorneys began to refer to it as being “Worsham’ed.”
Fortunately, the recent case of Fenimore v. Regents of the University of California (2016) 2016 Cal.App. Lexis 231 has helped alleviate some of the confusion created by Worsham. 
In Fenimore, the plaintiff suffered a fall while at the Resinick Hospital and, as a result of his injuries, passed away.  The Court held that the allegations in the complaint that a hospital had a pattern and practice of improperly staffing which, in turn, led to injury, was sufficient to state a claim for elder abuse under Welfare and Institutions Code §15657.  The Court sought to distinguish Worsham, indicating that Worsham’s determination that understaffing constitutes no more than negligence may be true “absent further allegations showing recklessness” and went on to indicate that identifying a staffing regulation that the hospital allegedly violated and suggesting a knowing pattern of violation constitutes such recklessness.
Since all nursing homes and residential care facilities for the elderly are subject to staffing regulations, this should not be a difficult hurtle to meet, at least at the pleading stage.  Fortunately, Fenimore will help prevent those seeking recovery for elder abuse from being “Worsham’ed” in the future.