History of the Elder Abuse Act: In 1982, the Legislature determined that because elder and dependent adults were more vulnerable to abuse and neglect and less capable of seeking help, California had a responsibility to protect them. The result was the enactment of Chapter 11 of the Welfare & Institutions Code, a series of statutes designed to encourage the reporting of such abuse and neglect.
Ten years later, in 1992, the Legislature found that few civil cases were being brought in connection with abused and neglected elder and dependent adults due to the lack of incentives to prosecute these cases. The prospects for a profitable recovery were limited. Elder and dependent adults often had pre-existing conditions and reduced life expectancies which diminished the value of their pain and suffering.
When the elder or dependent adult died, recovery for his or her pain and suffering was statutorily barred. And since elders and dependent adults were often retired or unemployable, claims for loss of earnings or earning capacity were rarely included.
California’s Legislature responded by retitling Chapter 11 the “Elder Abuse and Dependent Adult Civil Protection Act” (EADACPA) and creating powerful financial incentives for attorneys who successfully represented elders and dependent adults. EADACPA made an award of attorneys’ fees and costs to the prevailing plaintiff mandatory. Welf. & Inst. Code § 15657(a). Additionally, EADACPA permitted the post-mortem recovery of a decedent’s pre-death pain and suffering. Welf. & Inst. Code § 15657(b). And while not specifically an EADACPA remedy, punitive damages (under Civil Code Section 3294) were made a part of most elder and dependent adult abuse cases since the proof required to show entitlement to EADACPA’s remedies was often the same proof needed for punitive damages. In certain circumstances, the punitive damages could even be trebled. Civ. Code § 3345.
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. Welf. & Inst. Code § 15657.
An “elder” is any California resident 65 years of age or older. Welf. & Inst. Code § 15610.27. A “dependent adult” is any California resident between the ages of 18 and 64 with a physical or mental limitation that restricts his or her ability to carry out normal activities or to protect his or her rights. Welf. & Inst. Code § 15610.23(a). A dependent adult includes “any person between the ages of 18 and 64 years who is admitted as an in-patient to a 24-hour care facility.” Welf. & Inst. Code § 15610.23(b). A “24-hour care facility” includes a general acute care hospital. Health & Safety Code § 1250.
What Is Physical Abuse Under the Elder Abuse and Dependent Adult Civil Protection Act?
“Physical abuse” includes criminal conduct such as assault, battery, rape and incest. Welf. & Inst. Code § 15610.63(a),(b),(c) and (e). However, physical abuse also includes unreasonable physical restraint, prolonged or continued deprivation of food or water, and the use of physical or chemical restraint or psychotropic medication for punishment, for a period beyond that for which the medication was ordered, or for any purpose not authorized by a doctor. Welf. & Inst. Code § 15610.63(c) and (f).
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.
What Is Financial Abuse under the Elder Abuse and Dependent Adult Civil Protection Act?
Financial abuse” includes the wrongful taking or misappropriating of the money or property of an elder or dependent adult with the intent to defraud. Welf. & Inst. Code § 15610.30.
What Is Necessary to Hold an Employer Responsible for the Elder Abuse Committed by an Employee
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. See Welf. & Inst. Code Sec. 15657 and Civ. Code Sec. 3294.)
Time Limitations in Elder Abuse Cases
The standard 2 year statute of limitations for a tort (CCP§ 335.1) applies to causes of action for Elder Abuse not the one year statute of limitations period of MICRA’s CCP §340.5 for actions for professional negligence.
Damages
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. California courts, have decided that in an elder abuse case against a health care provider, a plaintiff may be entitled to a remedy of an award greater than the $250,000 general damage cap for misconduct that is not medical negligence but rises to willful neglect. The medical expenses are determined by the testimony of physicians or other health care providers.
Enhanced Remedies under the Elder Abuse Statute
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.
Recovery of Attorney’s 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.
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.
Punitive Damages
Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, they may be 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.
In California, punitive damages may be awarded upon proof of clear and convincing evidence of oppression, fraud and malice. The same standards apply for an employer's liability for elder abuse as apply to an employer's liability for punitive damages. If plaintiff can establish a punitive damage claim, there is no set limit on the amount of the award even in malpractice actions.
Malice Defined
In nursing home cases, the key element of the above definition is "willful and conscious disregard of the rights or safety of others." 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 may prevail on punitive damages.
Oppression Defined
There are a significant number of rights that residents of nursing homes are given by statute. If the director or administrator of a corporation knows that these rights, are being disregarded, plaintiff may be able to establish a punitive damage claim.
Fraud Defined
Typically, fraud can be established by misrepresentations made to the family when an elder is placed in a nursing home. Plaintiff may seek to establish that it is the "policy" of the facility to make such misrepresentations which will lead to a punitive damage award.
Plaintiff may 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. Plaintiff may be able to establish that 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 may lead to a finding of fraud and punitive damages.
Establishing Punitive Damages in Nursing Home Cases
a. 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.
b. 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.
c. 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.
Conclusion
The public policy of the State of California is to vigorously protect elders from abuse, whether physical, emotional or financial.
If you believe that a loved one has been abused, there are multiple remedies, including in some instances even the recovery of attorneys' fees. The law has been altered to protect the elderly but it remains up to the family members or friends of the elderly in most instances to take the steps necessary to protect the victim and punish the wrong doer.
For more articles on this website regarding this and related issues, see Elder Abuse - the Basic Law; Elderly Care - Living and Dying Preparations; Nursing Homes and the Law; and Planning the Glorious Death.