Silicon Valley/San Francisco Office Prevails on Motion For Summary Judgment in Claim for Elder Abuse/Wrongful Death

June 29, 2021

On February 8, 2019, the adult daughter and son of Charles McDermott, a 59-year-old quadriplegic, filed a lawsuit for elder abuse and wrongful death against Familiar Surroundings, a non-medical home case agency that provided general services six hours a week to the deceased pursuant to a contact with the Department of Veteran Services.  Mr. McDermott also received regular visits each week by nurses from co-defendant, Healthy Living.  Mr. McDermott passed away on January 24, 2018 from a sudden kidney infection (urosepsis) resulting from the  indwelling catheter he required for bladder drainage.     

After more than two years of written discovery and depositions conducted by partner Sharon Hightower and her team, motions for summary judgment were filed by both defendants. The motion filed on behalf of Familiar Surroundings, written by Senior Associate Laura Malkofsky of the Silicon Valley/San Francisco office of Ericksen Arbuthnot, argued that Plaintiffs could not prevail on their elder abuse cause of action because the type of care provided by Familiar Surroundings to the decedent did not fall under the Elder Abuse Act.   (W & I Code 15600 et seq.).  Relying on the California Abuse Act, plaintiffs must prove that Familiar Surroundings had a “substantial caretaking or custodial relationship” with the decedent. After analyzing the facts relating to Familiar Surroundings, the moving papers established that Familiar Surroundings never had an ongoing responsibility for one or more of the basic needs of Mr. McDermott and therefore, did not have the substantial caretaking or custodial relationship required for the Elder Abuse Act to apply.  The motion also argued that the claim for wrongful death failed because there were no triable issues of material fact that would establish than any act or omission by Familiar Surroundings was a cause of the death of Mr. McDermott. he death.  

In their opposition to the motion, the attorney for the Plaintiffs attempted to argue a new theory that the cause of death was the failure of the Defendants to monitor and address the weight loss and malnutrition of the deceased which made him more vulnerable to contracting urosepsis. Although the attorney reiterated his new argument at the time of the hearing and sought leave to amend the complaint, the court determined that “[T]he pleadings serve as the outer measure of materiality on a motion for summary judgment and a motion may not be granted or denied on issues not raised in the pleadings.”  With additional support provided by the expert for the defendants and his declaration that the deceased had not shown any signs or symptoms of urosepsis when a nurse saw him two days before his death as well as the fact that Plaintiffs failed to provide any expert opinion refuting that opinion, the motion for summary judgment by each defendant was granted.     

Congratulations to Laura Malkofsky and her excellent work.

Sharon L. Hightower is a Shareholder in the Silicon Valley/San Francisco office and can be reached at (408) 286-0880, ext. 312 or  Laura E. Malkofsky is a Senior Associate in the Silicon Valley/San Francisco office and can be reached at (408) 286-0880, ext. 314 or