Violation of Nursing Home Regs Warrants Negligence Per Se Instruction

The California Court of Appeal rules that a jury deliberating in an elder abuse case should have been instructed that a nursing home's violation of a state regulation could be considered negligence per se. Norman v. Life Care Centers of America, Inc. (Cal. Ct. App., 4th, No. D039240, April 17, 2003).

Dorothy Quartermaine, 87, fell several times over a three-week period while a resident of a LifeCare nursing facility. The final fall resulted in broken bones and other injuries, and Mrs. Quartermaine died shortly thereafter at another facility. The California Department of Health Services (DHS) subsequently found that the facility had violated regulations relating to care planning and communication with a resident's physician.

Nancy Norman, Mrs. Quartermaine's daughter, filed an action against LifeCare alleging causes of action for wrongful death and violation of the Elder Abuse and Dependent Adult Civil Protection Act. One of Mrs. Norman's theories of elder abuse was that LifeCare neglected her mother. In support of her neglect theory, Mrs. Norman presented evidence that LifeCare violated certain DHS regulations that apply to nursing facilities. However, the trial judge declined Mrs. Norman's request to instruct the jury that such violations could be considered negligence per se. The jury returned a 9-to-3 special verdict in favor of LifeCare. Mrs. Norman appealed, contending the trial court prejudicially erred by refusing her request for an instruction on negligence per se.

The California Court of Appeal reverses and remands for a new trial, holding that violation of the nursing facility licensure regulations is to be considered neglect under the California elder abuse statute and that therefore instruction on negligence per se is a correct statement of the law. This would place the burden on LifeCare to rebut the presumption of negligence and confront substantive arguments on its alleged regulatory violations. "The doctrine of negligence per se," the court writes, "does notapply only to professional negligence causes of action. Rather, it generally can apply to any cause of action based on or involving negligence, including an elder abuse cause of action on a neglect theory." (emphasis in original)

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