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Created October 31, 2002
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Elder Abuse Law
By Steven G. Mehta
Copyright: The Daily Journal.
Elder Abuse Law
By Steven G. Mehta

Nine years ago, in a growing awareness of the problem of elder abuse, the California Legislature enacted the Elder Adult and Dependent Adult Civil Protection Act (EADACPA, or the Elder Abuse Act) to help protect elders and dependent adults from physical abuse, financial abuse, and neglect. Welf & I C 15600 et seq. These statutes, added to existing procedures for reporting elder abuse to enforcement authorities, were meant to help interested persons hire lawyers on behalf of elderly or dependent adults. However, these protections have remained unfamiliar to many lawyers.

Under the Elder Abuse Act, a dependent adult is any California resident between the ages of 18 and 64 who has physical or mental limitations that restrict the ability to carry out normal activities or to protect his or her rights, or who is an inpatient at a 24-hour health care facility. Welf & I C 15610.23. Abuse is defined broadly: It can mean physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering, or it can mean a care custodian's deprivation of goods or services that are necessary to avoid physical harm or mental suffering. Welf & I C 15610.07. Physical abuse is defined to include unreasonable physical constraint, or prolonged or continual deprivation of food or water. Welf & I C 15610.63. Financial abuse includes a situation in which a person or entity takes, secrets, appropriates, or retains the money or property of an elder or a dependent person for wrongful use, with intent to defraud, or in bad faith. Welf & I C 15610.30. Potential defendants thus include banks, trust and insurance companies, lenders, and financial planners. Neglect includes the negligent failure by any caretaker to exercise the degree of care that a reasonable person would exercise, including assistance in personal hygiene; provision of food, clothing, shelter, and medical care; and protection from health and safety hazards. Welf & I C 15610.57. For example, a physician who conceals a patient's severe bedsores and opposes medically necessary hospitalization commits elder abuse. Mack v Soung (2000) 80 CA4th 966.

If the plaintiff proves by clear and convincing evidence that a defendant is guilty of recklessness, oppression, fraud, or malice in abusing an elder or dependent adult, the court will award attorneys fees, costs, and damages for pain and suffering. Costs include reasonable fees for a conservator's services devoted to litigating the claim. Welf & I C 15657(a). The court must consider all relevant factors, including the value of the abuse-related litigation in terms of the quality of life of the elder or dependent adult, the results obtained, whether the defendant took reasonable and timely steps to determine the likelihood and extent of liability, and the reasonableness and timeliness of any written settlement offer. Welf & I C 15657.

Importantly, damages for pain and suffering are still recoverable after the victim's death, up to $250,000. Welf & I C 15657(b). This provision makes a contingency case viable. If the victim dies before the lawsuit ends, the suit can be maintained by the executor or administrator, if any, or else by the victim's successors in interest. Welf & I C 15657.3(c); ARA Living Centers-Pacific, Inc. v Superior Court (1993) 18 CA4th 1556.

Although a defendant's employee can be directly liable for an actionable tort committed with recklessness, oppression, fraud, or malice, an employer must meet the requirements of Civil Code section 3294 before the employer can be liable for attorneys fees, costs, and noneconomic damages for acts of the employee. See Welf & I C 15657(c). This essentially means that the employer must act with conscious disregard of safety, knowingly participate in the wrong, or knowingly ratify it. A facility's failure to address known abuses, such as those described in an anonymous complaint to the local department of health, may constitute such ratification.

Civil Practice Issues

Many lawyers have only recently become aware of specific laws that protect the elderly. As a result, more lawsuits are now being filed that allege some type of elder abuse. Many lawyers who are bringing elder abuse claims for the first time are falling into avoidable traps from a lack of familiarity with civil procedure in this field.

One of the major traps that unwary practitioners fall into is when they serve a 90-day notice of intent to sue on a health care provider. By relying on the tolling action of this notice, the plaintiff may preserve a medical malpractice claim but potentially fail to preserve an elder abuse claim.

Normally, no action based on a health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action. If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for commencement of the action is extended 90 days from the service of the notice. CCP 364. Professional negligence is defined as a "negligent act or omission to act by a health care provider in the rendering of professional services." CCP 364(f)(2).

But a claim for elder abuse is not based on negligence. To obtain the remedies available under the Elder Abuse Act, a plaintiff must demonstrate by clear and convincing evidence that the defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. "The Elder Abuse Act does not include acts of simple professional negligence, but refers to forms of abuse or neglect performed with some state of culpability greater than mere negligence." Delaney v Baker (1999) 20 C4th 23, 31. "[T]he explicit exclusion of 'professional negligence' ... make[s] clear the Elder Abuse Act's goal was to provide heightened remedies for ... 'acts of egregious abuse' against elder and dependent adults ... while allowing acts of negligence in the rendition of medical services to elder and dependent adults to be governed by laws specifically applicable to such negligence." 20 C4th at 35. As such, it is clear that professional negligence and elder abuse are two very different causes of action.

In Noble v Superior Court (1987) 191 CA3d 1189 (not an elder abuse case), the plaintiff served a timely 90-day notice on a health care provider and filed an action for professional negligence and the tort of battery after the one-year limitations period expired but before the end of the 90-day tolling period. The court held that the statute of limitations had expired on the battery count. Therefore anyone contemplating filing a claim for elder abuse against a nursing home or other health care provider should not rely on the tolling protections of Code of Civil Procedure section 364.

It is unclear if certain procedural requirements specific to claims of medical malpractice by health care providers also apply to claims nominally brought under the Elder Abuse Act. Compare Covenant Care, Inc. v Superior Court (2d Dist 2001) 89 CA4th 928, review gr No. S098817 (punitive damages claim allowed) with Community Care and Rehab. Center v Superior Court (4th Dist 2000) 94 Cal Rptr 2d 343 (punitive damages claim struck down). In general, the Elder Abuse Act is not supposed to alter the operation of special procedural rules for such claims of professional negligence. See Welf & I C 15657.2. Proper Parties

Ordinarily, once a person passes away, any claim for noneconomic damages such as pain, suffering, and emotional distress suffered during that person's lifetime dies too. CCP 377.34. The estate of the decedent, or his or her successors in interest, can only continue to seek economic damages. But an heir seeking to recover noneconomic damages as a result of the death of a loved one may sue for wrongful death of the decedent. CCP 377.61.

However, the Elder Abuse Act authorizes a post-death recovery of noneconomic damages for the injuries suffered by a decedent prior to his or her death, limited to a maximum of $250,000. Welf & I C 15657(b). On elder abuse claims that involve a person who passed away, the plaintiff will generally claim these enhanced damages.

This leads to the common mistake of filing a complaint that names only the heirs as plaintiffs. Many attorneys fail to name the estate of the decedent or its successors in interest as a plain-tiff, and thus fail to preserve Elder Abuse Act claims for noneconomic damages for emotional distress. It is imperative to make sure that the right parties-both the heirs individually, and the successors in interest to the decedent, or the decedent's estate-are named as plaintiffs. In addition, if the successors in interest are named as plaintiffs, they are required to file a declaration with the court. CCP 377.32; see also Welf & I C 15657.3 (petition for substitution).

Statute of Limitations

Another common problem is that the attorneys fail to recognize that there is potentially a different statute of limitations for claims for noneconomic damages by the decedent and claims of wrongful death. A wrongful death claim has a one-year statute of limitations. CCP 340(3). On the other hand, if a person entitled to bring an action dies before expiration of the applicable limitations period and the cause of action survives, the successor in interest may bring suit within (1) six months of the person's death or (2) the limitations period that would have been applicable if the person had not died (CCP 366.1), whichever is later.

In an elder abuse claim, often the neglectful care and treatment lasts for weeks or months. The death may occur several months after the first act of neglect. The question then arises as to when the decedent first knew of the tortious conduct or when he or she first suspected the neglect. For example, if a patient being handled is dropped, and as a result sustains a brain injury from a fall on March 1, 2001, then dies on May 4, 2001, there are several different statute of limitations that could apply.

First, if the decedent had made a claim under the Elder Abuse Act for personal injuries, that statute started to run on March 1, 2001, the date of abuse, and the decedent (or a conservator) would have had until March 1, 2002, to file a claim. The successors in interest, therefore, have to file to protect this claim before the March 1, 2002, deadline. However, on the wrongful death claim, the heirs need only file by May 4, 2002, one year after death, which is a full two months later. The courts of appeal are currently addressing how the one-year statute of limitations should apply in elder abuse cases. See Alcott Rehab. Hosp. v Los Angeles Superior Court (2d Dist) No. B147818.

A plaintiff's attorney must quickly evaluate the extent of the injurious action and determine when the decedent could have first discovered the neglectful conduct. One way to overcome this dangerous circumstance is to prove that the decedent was under a disability during the time that the statute of limitations ran. For example, the time that a person is considered insane will not count toward the time necessary for the running of the statute of limitations. CCP 352. An elderly person who has severe dementia may qualify as insane, which would delay the time in which to sue on the decedent's claim. Insanity of the decedent would not, however, toll the wrongful death claim. The best practice is to simply file before any potential argument can be made regarding the statute of limitations.

Adequate Discovery

Due to the heightened standard of proof (Welf & I C 15657), the plaintiff must demonstrate a clear and convincing case of elder abuse. As a result, a substantial amount of discovery is critical, just as a party needs to conduct substantial discovery to develop a pattern and practice of tortious actions to establish a case for punitive damages. In an institutional setting, plaintiffs must be especially aware of the potential pitfalls that may arise if they delay in conducting discovery.

The minimum standard of culpability that a plaintiff must meet to prove elder abuse is the standard of reckless neglect . In the context of an elder abuse case, "the term recklessness requires that the defendant have knowledge of the high degree of probability that dangerous consequences will result from his or her conduct and acts with deliberate disregard of that probability or with a conscious disregard of the probable consequences. Recklessness requires conduct more culpable than mere negligence." Conservatorship of Gregory v Beverly Enterprises, Inc. (2000) 80 CA4th 514, 521 (approving jury instructions).

With this standard, a plaintiff needs to develop information regarding corporate policies, prior knowledge of similar problems in care, lack of corporate training of staff, intentional violation of existing statutes and regulations, corporate irresponsibility in providing insufficient staff, and many other such issues. If the plaintiff does not diligently pursue discovery from the very beginning of the case, the plaintiff can face some significant evidentiary holes either when the defendant files the motion for summary judgment or at trial. In addition, it is not uncommon for the defendant to fail to provide all necessary information. The plaintiff must strongly pursue discovery.

Psychology and Settlement

Some additional concerns may arise. The defendants will typically attempt to attack the messenger, arguing that the plaintiffs who raise the issue of elder abuse are only in it for the money. This issue is oftentimes overplayed by the defense and can be used against them. Indeed, this tactic is usually attempted because the defendants want to divert attention from their own alleged wrongdoing. However, it is important to consider who the plaintiff will be in the litigation. Did the potential plaintiff have a relationship with the elderly person? Was he or she really interested in the welfare of the elderly person?

The amount and timing of a settlement offer in elder abuse cases is very relevant. The court can consider prior written settlement offers or demands in making the determination of the amount of attorneys fees. Welf & I C 15657.2. There are several schools of thought on this. One school of thought believes that by making a reasonable demand early on, the court can then use that amount to enhance or "multiply" the attorneys fee award at the end, the argument being that the only reason that the entire litigation went forward is because the defendant refused to accept a clearly reasonable settlement offer.

On the other hand, many argue that making a smaller settlement demand falsely lets the defendant believe that it can settle the case for even less. This school of thought believes that insurance adjusters will see that demand as the starting point, will only reserve an amount smaller or equal to that demand, and will never consider the higher demand as reasonable once it is brought forth at a later stage in litigation. Both sides have merit.

If defendants make a reasonable settlement offer that is rejected at an early stage in the litigation, they too could argue that the attorneys fees, if plaintiff is successful, should be limited because plaintiff had an opportunity to accept a reasonable sum earlier.

Steven G. Mehta is an attorney specializing in elder abuse plaintiffs litigation at McNicholas & McNicholas in Los Angeles.