Although California’s Elder Abuse Act has been in existence since 1991, this body of law is still misunderstood and often misused by many.
Indeed, many practitioners fail to recognize the intricacies that surround a claim for elder abuse/neglect, the biggest misconceptions usually being the statutes that relate to such a claim (or related claims, such as H&S Code §1430(b), which differs), the pleading requirements to establish such a claim, the standard of proof required to prove such a claim, and also, who can bring such a claim. The latter of these issues takes on an even greater significance because many practitioners are simply unaware that this distinct body of law provides one of the few basis wherein a decedent can bring a claim post-mortem to recover for their pre-death pain and suffering.
By way of background, California’s Elder Abuse and Dependent Adult Civil Protection Act (often referred to simply as the “EADACPA” or “Elder Abuse Act”) is specifically recognized as an independent cause of action; the body of law is found at Welfare & Institutions Code §15600 et seq. In enacting the Elder Abuse Act, the California Legislature expressly recognized that elders are particularly subjected to acts of abuse, neglect, or abandonment for which the State of California has a distinct responsibility to protect its elderly population.
As part of its preamble, the Elder Abuse Act expressly states that the Legislature “desires to direct special attention to the needs and problems of elderly persons, recognizing that these persons constitute a significant and identifiable segment of the population and that they are more subject to risks of abuse, neglect, and abandonment.” The statute further states that most elders and dependent adults who are at the greatest risk of abuse or neglect by their caretakers suffer “physical impairments and other poor health that place them in a dependent and vulnerable position.” The Legislative history notes behind the Act demonstrate that it was the express intent of the Legislature in enacting this distinct body of law to provide incentives through enhanced civil remedies to redress the reckless acts and/ or omissions within the Act’s ambit that are perpetrated against our elders, noting: “The Legislature further finds and declares that infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits. ... It is the further intent of the Legislature in adding Article 8.5 (commencing with §15657) to this chapter to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” It is the enhanced protections and remedies that were provided to prior “weaker” laws that make taking on a rightful case of elder abuse/neglect viable for practitioners.
To encourage private enforcement of these laws through the engagement of private civil attorneys, the Elder Abuse Act affords heightened remedies and removes bars to recovery that have discouraged counsel from taking on elder abuse cases in the past. These heightened remedies include the recovery of economic, non-economic and punitive damages . Moreover, under the Elder Abuse Act, a plaintiff who proves that a defendant is liable for neglect or abuse can recover for their pre-death pain, suffering, and/or disfigurement. (Welf. & Inst. Code § 15657(b)). If the victim dies before the lawsuit has commenced, upon petition, the decedent’s personal representative has the right to maintain an elder abuse action on the decedent’s behalf. Welf. & Inst. Code, § 15657.3, subd. (d)(1). The Elder Abuse Act allows a decedent, through a legal representative, to pursue post-mortem pain and suffering damages up to $250,000, whereas the death of a plaintiff in California typically eliminates any recovery of non-economic damages to a decedent. And, as an additional measure of recovery, the Act mandates that attorney’s fees and costs be awarded where a defendant is found liable for elder neglect or abuse with the requisite degree of misconduct.
Whether alive or deceased, a plaintiff alleging a violation of the Elder Abuse Act must demonstrate by clear and convincing evidence that the defendant: (1) subjected an elder to statutorily defined physical abuse, neglect, or financial abuse; and (2) acted with recklessness, malice, oppression or fraud in the commission of the abuse. Cal. Welf. & Inst.Code § 15610.27. As defined under the Act, the term “Neglect” includes, but is not limited to: (1) failure to assist with personal hygiene, or in the provision of food, clothing, or shelter; (2) failure to provide medical care for physical and mental health needs; (3) failure to protect from health and safety hazards; and (4) failure to prevent malnutrition or dehydration. Welfare & Institutions Code § 15610.57(b). The term “Recklessness” refers to the “subjective state of culpability greater than simple negligence” described as the “deliberate disregard of the high degree of probability that an injury will occur.” Cal. Welf. & Inst. Code § 15610.07. And while these terms may ring in “tones” of negligence, proving a claim for elder abuse or neglect is vastly different.
A common misconception is that acts of elder abuse/neglect and medical malpractice are one in the same. They are not. Not only are both separate and distinct causes of action with different statutes of limitations and different burdens of proof, but acts of medical malpractice speak to the provision of improper care whereas acts of elder abuse speak to physical harm, and acts of elder neglect speak to the “withholding” of care. Unlike claims of medical malpractice, the Elder Abuse Act encompasses a medical provider’s recklessness, e.g., the withholding of medical services, while medical malpractice focuses on negligence, e.g., the substandard performance of medical services. The standard of care for a medical malpractice case is “the knowledge skill and care ordinarily possessed and employed by members of the profession in good standing.” However, in a case brought under the Elder Abuse Act, the plaintiff must show “reckless, oppressive, fraudulent, or malicious conduct” in failing to provide medical care, assistance with activities of daily living, or other care needs to ensure the safety and well-being of an elder or dependent adult.
Pleading, supporting, and proving acts of elder abuse/ neglect are no insignificant tasks. The Elder Abuse Act, while a powerful body of law, has many procedural requirements that are vastly different from those of pleading and proving a claim of medical malpractice. Indeed, there are many pleading and proof requirements that are not germaine to a claim of medical malpractice. Although the Elder Abuse Act offers important legal protections to the elderly while making the pursuit of these claims more attractive to counsel based upon the incentives of an award of attorneys’ fees and costs, a practitioner must understand the nuances of the laws that guide a claim for elder abuse/neglect or they will undoubtedly face significant challenges in handling such a case, including the prospects of having a rightful claim time-barred or dismissed.
↧