Frequently Asked Questions About Elder Abuse in California
By Janice F. Mulligan, Esq.
and Elizabeth A. Banham, Esq.
Questions
- What is Elder Abuse?
- Who is an Elder?
- Who is a Dependent Adult?
- What is Financial Abuse?
- How Does California Law Protect Elders and Dependant Adults from Abuse?
- What types of injuries are most frequently seen in nursing home abuse cases?
- How do regulations affect nursing homes?
- What types of damages are available tot he abused elder in these cases?
- What if the abused elder dies before the lawsuit can be prosecuted?
- How do lawyers best evaluate an elder abuse case?
- What do you do when you believe someone died because of neglect or abuse?
- Where should an elder abuse case be filed?
Q: What is Elder Abuse?
Under California law, Aelder abuse@ can be either of the following:
Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. or,
The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
Because elderly and dependent adults are more vulnerable to risks of abuse, neglect and abandonment , special California laws are in place to help elders who have been neglected or abused.
The abuse can be recurrent neglect or a single egregious event which
produces injury, either physical or financial.
Q: Who is an Elder?
While this age seems young to us, any Californians 65 years of age or older, are considered "elders" for purposes of protection under the Elder Abuse Act, California Elder Abuse Act (or "EADACPA"), Welfare & Institutions Code ''15600.
Q: Who is a Dependent Adult?
A "dependent adult" is any person between the ages of 18 and 64 years who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights. This includes persons who have physical or developmental disabilities.
A "dependent adult" also includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility.
Dependent adults are entitled to the full protection of the California Elder Abuse Act.
Q: What is Financial Abuse?
"Financial abuse" of an elder or dependent adult occurs when a person or entity
takes or assists someone else in taking their real or personal property in bad faith or to defraud the them .
Elders and dependent adults are also entitled to full protection under the California Elder Abuse Act.
Q: How Does California Law Protect Elders and Dependent Adults from Abuse?
California's statute seeks to impose enhanced damages including attorney's fees and pain and suffering damages which survive the death of the victim where it is proven by clear and convincing evidence that a defendant is liable for physical abuse, neglect, or fiduciary abuse, and that the defendant has been guilty of recklessness or worse. California Elder Abuse Act (or "EADACPA"), Welfare & Institutions Code ''15600,
Q: What types of injuries are most frequently seen in nursing home abuse cases?
There are several common types of injuries that are seen as a result of progressive abuse. These include decubitis ulcers (or bedsores), severe dehydration and/or malnutrition, septic shock, gangrene and aspiration pneumonia. Evidence of systemic neglect is often revealed through (1) persistent deprivation of basic care for totally dependent residents; (2) injuries and deaths that are linked to progressive neglect; and (3) similar problems involving other residents.
Q: How do regulations affect nursing homes?
The Federal statute, the Omnibus Budget Reconciliation Act or "OBRA", 42 USCA 1396r et seq. and 1395i-3 et seq., and its interpretive guidelines, spell out how nursing homes are ultimately responsible for the health, medical care and well-being of their residents. A federal bureau known as the Health Care Financing Administration, oversees compliance with these regulations. If substantial compliance is shown, certification of the home is continued and the home can continue to receive government funds such as Medicare/Medicaid. If not, the home may lose its benefits.
California has its own nursing home licensing and inspection scheme, as well as the California Elder Abuse Act (or "EADACPA"), Welfare & Institutions Code ''15600, et seq. EADACPA provides new remedies such as the recovery for attorney's fees in certain cases. Care is expected to improve as nursing homes take steps to prevent injuries and avoid litigation, which is increasing given the new remedies available.
Q: What types of damages are available to the abused elder in these cases?
If neglect can be proven by clear and convincing evidence, the elder is able to recover any medical expenses not covered by insurance, the value of any necessary attendant home care rendered by either professionals or family members, damages for pain and suffering and attorneys= fees. The damages for pain and suffering are capped by California law at $250,000.00 .However, punitive damages may also be recoverable.
Q: What if the abused elder dies before the lawsuit can be prosecuted?
The elder=s surviving family has the right to bring a lawsuit that embodies two separate legal rights:
First, there is the "survival cause of action".In this part of the lawsuit, the family really stands in their deceased abused elder=s shoes and recovers for the individual=s own loss of life. This part of the lawsuit includes recovery for the deceased elder=s pain and suffering.
In a survival cause of action, the general damages for the elder=s pain and suffering are limited to a total of $250,000.00. However, if the jury believes that the nursing home was reckless in caring for the elder, the family may also be able to recover additional punitive damages, as well as attorney=s fees and court costs. This may potentially add several more hundreds of thousands of dollars or more to the potential judgment..
Second, in addition to a survival lawsuit, the family also has the right to bring a "wrongful death action".This action seeks recovery for each of the family member=s loss of their relationship with the deceased elder. Often, the family chooses to bring this kind of lawsuit in addition to the other, survival action) and the damages may be cumulative.
Q: How do lawyers best evaluate an elder abuse case ?
Counsel must obtain as much information as possible before proceeding with a lawsuit . An initial review of the records is critical. Counsel should also interview all available family members, friends and percipient witnesses to determine if there is any additional information regarding the elder's treatment or documents which will assist in evaluation. This should include inquiries regarding complaints and/or third party investigations by governmental authorities.
Because most victims in elder abuse cases are long past the stage of earning wages and often have short life spans, analysis of these cases is different. Important factors include the egregiousness of the conduct and whether a pattern of neglect or abuse can be shown.
Public records which are available include inspection records from the local office of the State Department of Health Services, Adult Protective Services and local and state ombudsman's records. All of these documents are useful in establishing the strength of potential case.
Q: What do you do when you believe someone died because of neglect or abuse?
An autopsy is usually necessary if you truly want to prove in a court of law what caused a person==s death. While it is not impossible to win a lawsuit without an autopsy , in many circumstances, it will be extremely difficult to prove a case without one.
Even if you know (or think you know) the cause of death ,an autopsy can provide valuable information to aid in the lawsuit as well as providing answers to family members about the circumstances surrounding someone==s death.
For example, if someone dies of a heart attack (cardiac arrest) an autopsy may be able to show whether there were any prior, silent attacks, approximately when each such attack occurred and whether or not the final cardiac arrest was the type that could have been prevented with good medical care.
Better if the autopsy is done somewhere other than at the hospital where the questionable medical care was rendered. If adequate funds are available, consider having the autopsy performed at a university medical center . Specifically request that the doctors involved in the care and treatment of the patient NOT be allowed to be present during the autopsy and for the medical examiner/ pathologist/toxicologist involved in the autopsy NOT communicate with the treating doctors about their findings.
It generally will l take a couple of months to get the final report regarding the autopsy. In the interim, whomever is listed as next of kin on the death certificate should IMMEDIATELY order ALL records from the hospital or health care facility where the questionable care was rendered. .
Bring the photo ID of the heir requesting the records together with a copy of death certificate to the medical records department when requesting records . Write down the name of whomever is taking the order for the records and the date the records will be ready. Please see additional information above about obtaining medical records.You need to get those records ASAP before the autopsy is completed so the health care providers won't be able to change the records to conform to whatever is in the autopsy report that may or may not help them.
Q: Where should an elder abuse case be filed?
The Elder Abuse Act gives the Probate Court "concurrent jurisdiction" over civil actions which include remedies under the Act, but only if a conservator has been appointed. (Welfare & Institutions Code ''15657.3(a).) The complaint should reflect that there is a conservator and show in the prayer all those enhanced damages being sought, including punitive damages (if available under the facts), and attorney's fees and costs. While there is an advantage of filing in probate court, in that the court is more likely to be educated about issues affecting elders, it is important to know that there is no right to a jury trial under conservatorship proceedings. (Probate Code ''7200.)
TTTT
The law firm of Mulligan & Banham in San Diego, is available
for referral of elder abuse and medical malpractice cases. We have the
experience and resources to gain quick medical review of records for case
evaluation.
For more information, please contact Elizabeth Banham at the firm:
2442
4th Avenue, San Diego, CA 92101
Phone: (619) 238-8700
Fax: (619) 238-8701 or
E-mail at info@mulliganandbanham.com
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