In order to help people understand the issues and procedures involved in the typical California elder abuse and nursing home neglect litigation, Mr. Winer has authored the article below.

    A.  The Importance of the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA).

    Elder abuse law in California largely focuses on the “Elder Abuse and Dependent Adult Civil Protection Act (EADACPA).” Broadly speaking, abuse under an EADACPA claim in a civil action includes “physical abuse, neglect, fiduciary abuse, abandonment, isolation or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services which are necessary to avoid physical harm or mental suffering.”

    The elements of what constitutes elder abuse will be described in more detail below; for now, it is important to recognize that it covers “abuse” and “neglect.” However, in cases against health care providers, such as licensed nursing homes, a plaintiff has to establish something more than professional negligence, to prevail on an elder abuse claim. (It can still prevail on a malpractice case if there is a provable standard of care violation.)

    B.  Who Is Considered an Elder or Dependent Adult Under the Law.

    Most people assume that the elder abuse law only applies to senior citizens. The elder abuse protections apply to both “elders,” a person residing in California who is 65 years of age or older and “dependent adults” who are defined as any person residing in California between the ages of 16 and 64 who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.

    Further, a “dependent adult” includes any person between the ages of 18 and 64 who is admitted to a 24-hour health care facility including general acute care hospitals, psychiatric hospitals, skilled nursing and intermediate care facilities, congregate living health facilities, psychiatric health facilities and chemical dependency recovery hospitals.

    Thus, elder abuse protections apply to any person over 65, any disabled adult and any adult, even a young adult, with no disability whatsoever admitted to an inpatient facility.

    C.  Who Can Bring an Elder Abuse Action.

    The following people can bring an action for elder abuse:

         ►    An elder or dependent individual who is living.

         ►    The elder’s or dependent individual’s estate or successors in interest in a survival action if death has occurred.

         ►    The elder’s or dependent individual’s heirs as specified by statute in a wrongful death action.

         ►    The elder’s or dependent individual’s family members if they witnessed the elder abuse.

         ►    A conservator or guardian of an incompetent elder or dependent individual.

    In addition, the spouse of the injured plaintiff can also bring their own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

    D.  What Is Physical Abuse Under the Elder Abuse and Dependent Adult Civil Protection Act.

    Physical abuse under the EADACPA is defined as:

         ►    Assault.

         ►    Battery.

         ►    Assault with a deadly weapon.

         ►    Force likely to produce great bodily injury.

         ►    Unreasonable physical constraint or prolonged or continual deprivation of food or water.

         ►    Sexual assault.

         ►    Sexual battery.

         ►    Rape.

         ►    Spousal rape.

         ►    Incest.

         ►    Sodomy.

         ►    Forced oral copulation.

         ►    Forced penetration of a genital or anal opening by a foreign object.

         ►    

Use of physical or chemical restraint or psychotropic medication for punishment or for a period beyond what was indicated by a physician or for any purpose not authorized by a physician.

    Under this law, the physical abuse can occur in any setting; however, abuse by constraint, deprivation or restraint is most likely to occur in poorly staffed, long term care facilities where it is easier to drug or immobilize a patient than to provide appropriate car.

    E.  What Is Neglect under the Elder Abuse and Dependent Adult Civil Protection Act.

    Neglect means either:

         ►    The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise; or

         ►    The negligent failure to exercise that degree of care that a reasonable person in a like position would exercise.

    Under the statute, neglect includes but is not limited to:

         ►    Failure to assist in personal hygiene of in the provision of food, clothing or shelter.

         ►    Failure to provide medical care for physical and mental health needs.

         ►    Failure to protect from health and safety hazards.

         ►    Failure to prevent malnutrition or dehydration.

    Note that in cases against licensed health care providers who are covered by MICRA in order to receive the enhanced remedies under the elder abuse law, a plaintiff must prove some misconduct more than mere medical negligence.

    F.  What Is Financial Abuse under the Elder Abuse and Dependent Adult Civil Protection Act.

    Financial abuse under the EADACPA is defined as a situation in which one or more of the following apply:

         ►    

A person who has the care or custody or an elder or who stands in a position of trust of an elder or dependent adult, takes, keeps or appropriates money or property, to any wrongful use, or with the intent to defraud them;

         ►    A situation in which anyone defrauds an elder or dependent adult; or,

         ►    A situation in which someone holds in trust the money or property of a dependent adult or a dependent elder and refuses in bad faith to make the money available to the elder.

    The definition of “financial abuse” under the EADACPA may make civil remedies available to unfair acts and practices and other fraudulent or deceitful conduct committed in a commercial context.

    This would open the door to enhanced remedies against unscrupulous individuals who hold themselves out as home improvement contractors, mortgage loan brokers or home equity lenders and others who take advantage of the elderly. The importance of the enhanced remedies under the EADACPA will be discussed below.

    G.  The Standard of Care in Elder Abuse Cases.

    For the remedies under EADACPA to be available, it must be proved by clear and convincing evidence that the defendant is liable for physical abuse, neglect or fiduciary abuse and that the defendant has been guilty of recklessness, oppression, fraud and malice in the commission of the abuse.

    There is no statutory definition for the term “recklessness.” Recklessness is generally described as something more than negligence. It must not only be unreasonable, but it must invoke a risk of harm to others substantially in excess of that which is necessary to make conduct negligent.

    In California, juries are instructed that

“A defendant’s conduct is in reckless disregard of the probability of causing emotional distress if [he/she] has knowledge of a high degree of probability that emotional distress will result and acts with deliberate disregard of that probability or with a conscious disregard of the probable results.”

    H.  What Is Necessary to Hold an Employer Responsible for the Elder Abuse Committed by an Employee.

    For plaintiffs to be able to have any significant chance of recovering money in most elder abuse cases that occur in skilled nursing facilities and other places that house the elderly, it is critical that the nursing facility be found responsible for the abusive acts of its employees.

    In order for an employer to be held responsible for the acts of an employee under the EADACPA, one of the following must be shown:

         ►    The employer had advance knowledge of the unfitness of the employee and employed the employee with a conscious disregard of the rights or safety of others.

         ►    The employer authorized or ratified the wrongful conduct for which the damages are awarded.

         ►    The employer was personally guilty of oppression, fraud or malice.

    In the case of a corporate employer, the conduct giving rise to liability of the corporation must be on the part of an officer, director or managing agent of the corporation.

    Thus, to win against an employer in an elder abuse case, plaintiff must prove something more than that the abusing employee was in the course and scope of the employment at the time of the abuse. This is a higher standard than a negligence case or even a malpractice case against an employer.

    I.  Negligent Infliction of Emotional Distress.

    Most family members who witness the negligent or abusive conduct inflicted on their family member are entitled to bring an action for negligent infliction of emotional distress.

    This may allow family members, who otherwise would not be entitled to bring cases of elder abuse, to bring their own action or join the action of the elder or the heirs of the elder if the elder has died.

    It is not uncommon for family members to witness the abuse and neglect of their loved ones, particularly in nursing home settings; therefore, this potential claim should always be considered. To prevail, the family members must be “close” to the elder or dependent and must “see” the abuse and injury from the occurring.

    J.  Enhanced Remedies under the Elder Abuse Statute.

         i.  Pain and suffering and emotional distress damages survive death.

    In most personal injury claims, a plaintiff’s right to recover monetary damages for pain, suffering and emotional distress is eliminated if the plaintiff dies before a judgment is entered or a settlement is finalized.

    However, the California legislature, recognizing that many plaintiffs will die before or during the course of an elder abuse case, has created an exception to the general rule and allows the heirs or survivors in an elder abuse case to be awarded damages for the pain and suffering and emotional distress that the elder incurred before he or she died.

    However, in cases against health care providers, the post mortem recovery of pain and suffering damages is limited to $250,000 by MICRA.

         ii. Recovery of attorneys fees and costs in elder abuse cases.

    One of the critical enhanced remedies of elder abuse cases is the ability of the plaintiff to be awarded attorneys fees and costs if he or she can prove elder abuse. This is critical because frequently attorneys fees in an elder abuse case will exceed the total amount of the judgment. This, as the legislature intended, gives attorneys more incentive to take on elder abuse cases when there is gross misconduct, but little provable damage from the misconduct.

    In determining an attorney fee award, the court may look at:

         ►    The value of the abuse-related litigation in terms of the quality of life of the elder or dependent adult and the results obtained.

         ►    Whether the defendant took reasonable and timely steps to determine the likelihood and extent of liability.

         ►    The reasonableness and timeliness of any written offer and compromise made by a party to the action.

    K.  Special Protections for Unfair Business Practices Harming Elderly Consumers.

    California law sets out 22 unfair methods of competition and unfair or deceptive acts or practices (Civil Code section 1770). These acts include, for instance:

         ►    Misrepresentations regarding the nature of quality of goods and services.

         ►    Deceptive advertising.

         ►    Misrepresentations regarding pricing and other aspects of a transaction.

         ►    Inserting an unconscionable provision in a contract.

         ►    Certain circumstances of encumbering the primary residence of a consumer for the purpose of paying for home improvement.

    Before a case can be brought under this act, which is part of the Consumer Legal Remedies Act, a 30-day notice must be given to the prospective defendant and a demand that the unlawful practice be corrected. If the potential defendant agrees to make the appropriate corrections, a case cannot be brought.

    It is important to note that lawsuits under the Consumer Legal Remedies Act may be initiated against businesses other than sales or loan operations. In fact, under certain situations, a long term care facility or a home health service may make misrepresentations or have unconscionable contract provisions which would give rise to a cause of action against the long term care facility or home health service provider.

    In the case of the elderly and disabled, a proven violation of Civil Code section 1770 may result in an additional award of up to $5,000. This becomes important in potential class action cases where it might be difficult to prove significant damages for any particular member of the class.

    L.  Punitive Damages in Elder Abuse Cases.

    Punitive damages are damages awarded to punish the defendant. They are frequently the most significant element of damage in an elder abuse case since almost by definition, conduct that rises to the level of elder abuse also rises to conduct which, under California law, is worthy of a punitive damage award. The only exception might be that a defendant can be found guilty of elder abuse based on a finding of “recklessness” which may not be enough misconduct to meet the requirements for a punitive damage award.

    In California, punitive damages may be awarded upon proof of clear and convincing evidence of oppression, fraud and malice.

    The exact same standards apply for an employer’s liability for elder abuse as apply to an employer’s liability for punitive damages. That is, there can be neither a finding for elder abuse nor for punitive damages based on the acts of an employee of the employer unless:

         ►    The employer had advanced knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others.

         ►    The employer authorized or ratified the wrongful conduct for which the damages are awarded.

         ►    

The employer was personally guilty of oppression, fraud or malice.

    If plaintiff can establish a punitive damage claim, there is no set limit on the amount of the award even in malpractice actions.

    M.  Establishing Punitive Damages in Nursing Home Cases.

         i.  Bad acts or policies of managing agents can lead to punitive damage awards, even if committed without the knowledge” of the employer.

    If a plaintiff can prove that malice, fraud or oppression is present in the acts of an employer’s managing agents, or is the product of policies or practices established by corporate management, the corporation may be found liable for punitive damages even if it did not “ratify” or “approve of” the conduct of an employee who commits elder abuse.

    A “managing agent” includes only those corporate employees who exercise substantial independent authority and judgment in their corporate decision-making so that their decisions ultimately determine corporate policy.

    In a case involving a nursing home, plaintiffs will take the position that the administrator and director of nursing fit the above definition for managing agent. Companies that own many nursing homes will argue that, for punitive damage purposes, only an officer at corporate headquarters can be considered a managing agent.

         ii. The owner or director’s decision to sacrifice care to increase profits may lead to punitive damages.

    Generally speaking, plaintiffs should take the approach that the administrator of a nursing home, whether individually owned or part of a chain, is a managing agent because the administrator is responsible for budget formation which, in elder abuse cases, will involve spending less money on patient care to increase profit. The administrator by statute is responsible for this part of the operation of a nursing home (22 Cal.Code Regs. §72513).

    The director of a nursing home has administrative authority, responsibility and open accountability for nursing services within the facility (see 22 Cal.Code Regs. §72327(c)). Thus, if a plaintiff can establish malice, oppression or fraud against one of these individuals, they should fit the definition of “managing agents” and the corporation will be responsible for punitive damages.

         iii.     Establishing malice against directors in nursing home cases.

    “Malice” is described by statute as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”

    In nursing home cases, the key element of the above definition is “willful and conscious disregard of the rights or safety of others.” Almost by definition, elder abuse fits under this definition and if a plaintiff can prove that a director or administrator of the nursing home was acting in “willful and conscious disregard” of the residents at the home, plaintiff should prevail on punitive damages.

         iv. Establishing oppression against directors in nursing home cases.

    “Oppression” for punitive damages purposes is described as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”

    There are an extraordinary number of rights that residents of nursing homes are given by statute. If the director or administrator of a corporation knows that these rights, described later, are being disregarded, plaintiff will be able to establish a punitive damage claim.

         v.  Establishing fraud against directors in nursing home cases.

    “Fraud” for punitive damage purposes means “an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

    Typically, fraud can be established by misrepresentations made to the family when an elder is placed in a nursing home. In fact, plaintiff can usually establish that it is the “policy” of the facility to make such misrepresentations which will lead to a punitive damage award.

    Plaintiff can establish fraud if the nursing home fails to disclose significant deficiencies such as lack of appropriate staffing and training of employees.

    Most nursing homes will represent to the family of potential residents that they comply with all regulations. Generally, plaintiff will be able to establish that any number of regulations have not been followed. If plaintiff can prove that there was elder abuse and injury as a result of the violation of one of these regulations, it should lead to a finding of fraud and punitive damages.

         vi. Important aspects of discovery and investigation to prove punitive damages against nursing homes.

    In punitive damage cases, plaintiff should obtain the nursing home’s operating budget and study it carefully.

    The law requires that the nursing home must be “administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental and psychosocial well being of each resident.” By carefully studying the budget to discover hidden profit or huge salaries paid to administrators and directors at the expense of care of the patients may lead to evidence justifying a punitive damage award.

         vii.     Pleading of punitive damages is limited by MICRA in nursing home cases.

    In cases against skilled nursing facilities, a plaintiff cannot plead punitive damages without first establishing a prima facie case for recovery of punitive damages. At that point he or she can bring a special motion to the court to plead punitive damages.

    N.  Time Limitations in Elder Abuse Cases.

    Generally speaking, plaintiffs should bring an elder abuse case within one year of the date that they discover an injury from the abuse. However, to be safe, the case should be brought within one year of the first act of abuse, although the statute of limitations may be extended past one year if the plaintiff was mentally incapacitated or failed to discover an injury. Further, if the case involves a pattern of continuing wrong, the statute of limitations may also be tolled for a period of time.

    In the case of a wrongful death caused by a nursing home, the survivors will generally have one year from the date of death to bring the lawsuit.

    In survival actions, the estate or survivors must bring the case within six months of the death of the elder or dependent person or within one year of when the cause of action “accrues,” whichever is later.

    Further, note that if the case is against a government entity, a claim must be brought within six months of the discovery of the abuse or death.

    To be absolutely safe, plaintiffs should proceed quickly in an elder abuse case. For a discussion of statute of limitations in cases against health care providers, see the Medical Malpractice section of this web site.

    O.  Proving Elder Abuse by Proving Violation of State and Federal Regulations.

    The nursing facility industry is highly regulated by State and Federal government. There are regulations for the ratio of nursing hours to residents, the temperature of hot water, frequency of required physician visits, the type of medical equipment available, the number of registered nurses who need to be available and a large number of other aspects of operation and maintenance.

    Some of the aspects of nursing facilities that are regulated are:

         ►    Admission contracts.

         ►    Required services.

         ►    Licensing.

         ►    If a resident’s condition is capable of improvement, the nursing facility must provide services which will allow the resident to improve.

         ►    If the decline in a resident’s condition is inevitable, the nursing facility must provide services to keep that decline at as slow a rate as possible.

         ►    The facility must create an appropriate care plan which should reflect the resident’s choices and the choices of the family.

         ►    The facility must be capable of providing services pertaining to medication, nutrition, mental health, vision, injections, colostomies and other services.

         ►    The facility must provide services for both prevention and treatment (for instance, a facility must take steps to prevent bed sores and, if they occur, to treat bed sores).

         ►    The facility must ensure that a patient is able to exert as much independence as possible in his or her activities of daily living.

         ►    A nursing facility must make sure that the resident receives all proper physical, mental, occupational and speech therapy.

         ►    A resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.

         ►    As much as possible, the resident’s individual needs should be recognized unless it creates a danger to other residents.

         ►    A nursing facility must have a medical director who is responsible for “standards, coordination, surveillance and planning for improvement of medical care in the facility.”

    P.  Rights Provided to Elders by Statute.

    Following are rights which are provided to elders by statute:

         ►    Confidentiality of medical records.

         ►    Protection of personal property and money.

         ►    Right to choose a physician and to participate in treatment decisions unless the patient is incompetent.

         ►    Freedom to exercise rights as a citizen.

         ►    That the nursing facility employ adequate staff members.

         ►    That the nursing facility care for a resident’s hygiene.

         ►    That the nursing facility maintain a nurses’ call system in good working order.

         ►    That the nursing facility provide food of adequate quantity and quality.

         ►    That the nursing facility reduce the incidence of incontinence and bed sores.

         ►    That the nursing facility provide an activity program which meets each resident’s needs.

    Further, a nursing home cannot evict a resident unless:

         ►    The resident needs a type of care that a nursing facility cannot provide.

         ►    The resident’s health has improved so that he or she no longer needs nursing facility care.

         ►    The resident’s presence in the nursing facility endangers the safety of others.

         ►    The resident’s presence in the nursing facility endangers the health of others.

         ►    The resident has failed to pay for his or her care.

         ►    The nursing facility is going out of business.

    Before a nursing facility can evict a resident, it must first serve written notice specifying the reasons. The resident has a right to appeal the decision of a nursing home.

    When a nursing facility resident goes to a hospital, the nursing facility must hold the resident’s bed for up to seven days.

    Q.  Evidence That a Nursing Facility Has Received Citations.

    Frequently, a plaintiff will be able to establish that a nursing facility had been inspected in the past as a result of complaints and that a government agency had issued a “statement of deficiency.”

    At times the inspections can occur without patients’ complaint and a “statement of deficiency” will still be rendered. The Department of Health Services will present the “statement of deficiency” listing a series of violations of State and Federal law and a description of the conduct found to be in violation of the law.

    The nursing facility is then required to create a plan to correct each and every deficiency with a stated completion date.

    Frequently, the nursing facility does not follow through on its plan and this can be established through investigation and review of the plaintiff’s medical records.

    In an elder abuse case, the defense will attempt to keep out of evidence a statement of deficiency because it is hearsay while plaintiff will attempt to introduce the statement because it is relevant to the “malice, fraud, oppression or recklessness” standard for elder abuse and the similar standard for punitive damages. Thus, a plaintiff will claim that it should be introduced into evidence, not to establish the truth of the statement (which would be hearsay) but, rather, to establish defendant’s knowledge of its inadequate operation and failure to make appropriate corrections.

    R.  Damages.

    In addition to the enhanced remedies described above, plaintiffs are entitled to the same damages as other personal injury or wrongful death victims including:

         i.  What damages are recoverable in an elder or dependent adult abuse case?

    In an elder abuse or dependent adult abuse case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.

    The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.

    Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.

    S.  Claim for Loss of Consortium.

    A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

    There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

    T.  Punitive Damages.

    Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, they are entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals.

    U.  Investigation in Cases of Elder And Dependent Abuse.

         i.  Obtaining all the regulations and statutes.

    Elder abuse investigation begins with plaintiff attorney obtaining all of the potential regulations and statutes that govern nursing homes and other people who care for elders and dependent adults. There are many regulations and they all should be studied to find which ones apply to the subject case.

         ii. Investigate the history of the facility.

    Plaintiff attorney should be able to obtain a history of prior cases against the facility and prior violations and citations against the facility. If the problems cited in the cases or violations and citations have not been corrected, this will create powerful evidence for victory and punitive damages.

         iii.     Obtaining the testimony of witnesses.

    Investigation of elder abuse cases is made easy by the fact that even current employees of nursing homes are normally extraordinarily unhappy and will often times cooperate with a plaintiff, at the risk of losing their job which they don’t really care about.

    Secondly, there is almost always such a high turnover that if plaintiff attorney can obtain the names of staff members over a given period of time, many of those staff members will be gone and, if they can be found, will provide testimony which may help win an elder abuse case.

    Finally, when possible, current or former patients should be interviewed to provide similar information.

    V.  Settlement of Elder Abuse Cases.

    The key to the settlement of elder abuse cases from a plaintiff’s point of view involves an attorney’s understanding of how to create a risk of the nursing home or other facility of a large attorney fee and/or punitive damage award.

    Insurance companies, including insurance companies who insure nursing homes, love to focus on the damage to a specific plaintiff and ignore all of the other factors which should go into a settlement. In elder abuse cases, frequently the actual damages to a plaintiff are relatively insignificant. Thus, the insurance company will put a low value on the case.

    However, the insurance company and defendant must be made to understand that if plaintiff prevails on an elder abuse cause of action, the plaintiff attorney will be awarded fees which will generally be at least hundreds of thousands of dollars, and punitive damage awards, especially against nursing home chains, can result in multimillion dollar awards.

    Thus, if plaintiff can make the case for elder abuse, the risk of attorneys fees and punitive damages should turn a five-figure “injury” case into a six- or seven-figure attorney fee or punitive damage case.