Posted on 08/24/2022
Your elderly loved one, such as your father, mother, or grandparent, reaches the age where they can no longer take care of themselves. You entrust their care and well-being with a healthcare provider such as a skilled nursing facility or retirement community. You later find that your loved one was neglected, abused, and not properly cared for.
What rights do you have to hold the healthcare provider accountable in California?
(“the Act”) makes certain enhanced remedies available to a plaintiff (i.e. the person bringing a lawsuit) who proves abuse of an elder, i.e., a “person residing in this state, 65 years of age or older.” (Welf. & Inst.Code, § 15610.27.) In particular, a plaintiff who proves “by clear and convincing evidence” both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of “recklessness, oppression, fraud, or malice” in the commission of such abuse may recover attorney fees and costs and punitive damages. (Id., § 15657, subd. (a).)
The Elder Abuse Act defines abuse as “physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (Welf. & Inst.Code, § 15610.07, subd. (a); or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” (Welf. & Inst.Code § 15610.07, subd. (b)). The Act defines neglect as “[t]he 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.” (Welf. & Inst.Code, § 15610.57, subd. (a)(1).)
In short, neglect as a form of abuse under the Elder Abuse Act refers “to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” (Delaney v. Baker (1999) 20 Cal.4th 23, 34)
To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder. The plaintiff must prove “by clear and convincing evidence” that “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of” the neglect. (Welf. & Inst.Code, § 15657) Oppression, fraud, and malice “involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature. Recklessness involves “ ‘deliberate disregard’ of the ‘high degree of probability that an injury will occur” and “rises to the level of a ‘conscious choice of a course of action … with knowledge of the serious danger to others involved in it. Thus, the enhanced remedies are available only for “ ‘acts of egregious abuse’ against elder and dependent adults.
Examples of cases involving conduct sufficiently egregious to warrant the award of enhanced remedies of punitive damages under the Elder Abuse Act include the following:
• A skilled nursing facility: (1) failed to provide an elderly man suffering from Parkinson’s disease with sufficient food and water and necessary medication; (2) left him unattended and unassisted for long periods of time; (3) left him in his own excrement so that ulcers exposing muscle and bone became infected; and (4) misrepresented and failed to inform his children of his true condition.
• An 88–year–old woman with a broken ankle was frequently left lying in her own urine and feces for extended periods of time and she developed pressure ulcers on her ankles, feet, and buttocks that exposed bone, despite the plaintiff’s persistent complaints to nursing staff, administration, and finally, to a nursing home ombudsman. (Delaney, supra, 20 Cal.4th at pp. 27, 41)
(1) had responsibility for meeting the basic needs of the elder or dependent adults, such as nutrition, hydration, hygiene, or medical care (Welf. & Inst.Code, §§ 15610.07, subd. (b), 15610.57, subd. (b) 15610.57, subd. (b)
(2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and
(3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with the knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud, or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) (Welf. & Inst.Code, §§ 15610.07, subd. (b))
The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain, or mental suffering. (Welf. & Inst.Code, §§ 15610.07, subds. (a), (b), 15657)
JCS Law Firm works with Southern California Elder Abuse clients, helping them recover the full amount of compensation they deserve. Contact us today to schedule a free, no-obligation consultation to discuss your case and get started filing your claim. With our client satisfaction guarantee, you have nothing to lose and everything to gain!
For helpful tips on what to do as your case progresses, sign up for our free newsletter.