The Elder Abuse Act

In 1991, the California legislature added Welfare & Institutions Code section 15657 to the Elder Abuse and Dependent Adult Civil Protection Act (the Act) in order 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."

To encourage lawyers to take on the cause of this "disadvantaged class" of Californians, it included in the Act certain enhanced remedies for successful claimants, including attorney's fees and costs, and post-mortem general damages in cases of death when certain burdens of proof are met. Section 15657 states in relevant part:

Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse...or neglect..., and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies provided by law:

(a) The court shall award plaintiff reasonable attorney's fees and costs...

(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.

Spotting Acts of Abuse or Neglect

While most of us could easily spot the abuse of an elder who is assaulted or battered - physical abuse - or who has had their life savings stolen by a family member - financial abuse - many viable cases of elder abuse under the Act are not so apparent and are missed, usually because they appear to be single acts of negligence, and not overt acts of abuse.

Neglect is defined in the Act as "the negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise" and includes, among other things, the failure to provide medical care for physical and mental health needs, failure to protect from health and safety hazards, and the failure to prevent malnutrition and dehydration. Some examples of neglect include:

• Bed Sores
• Falls
• Fractures
• Infections
• Wandering
• Sudden Weight Loss
• Dehydration
• Inadequate Supervision.
• Peer-on-Peer Abuse
• Tube Feeding Failures
• Bed Rail Entrapment
  
• Deprivation of Dignity
• Poor Personal Hygiene

When evaluating a case involving the custodial treatment of an elderly person or a dependent adult, such as in a nursing home or residential care facility, it is important to investigate all issues that might suggest a pattern of neglect instead of what, at first, might appear to be a single negligent act. A good place to start is the medical file maintained by the facility, and specifically the written care plan (or "plan of care"), required for all residents of a skilled nursing facility. The plan should address falls, mobility, pain management, nutrition, bladder and bowels, etc. These plans must be continually updated to address a resident's changing needs, and must be followed. A failure to follow the care plan can lead to serious injury or death, and can be the basis of an elder neglect lawsuit.

In cases involving facilities that do not provide "skilled" nursing care, including residential care facilities or assisted living facilities, and therefore are not required to maintain care plan, Title 22 of the California Code of Regulations provides guidance. The day-to-day care provided by a licensed facility is heavily regulated by the State of California and can provide a solid foundation to build a case under the Act.

Also, all skilled nursing facilities are evaluated yearly by the Department of Health Services, the results of which are available to the public. A case can take on new significance if you discover there have been several other reported falls in the previous year.

Who Can Sue For Elder Abuse?

If the elder or dependent adult does not die as a result of the misconduct, then, like most cases, the injured party is the real party in interest who can sue on his or her own behalf.

If the injured party dies as a result of the misconduct, the court does not lose jurisdiction for claims made under the Act. After a petition, the right to maintain the action after death (the survival action) can be transferred to a personal representative of the decedent or to the decedent's successor in interest. That is, the person who died can maintain a legal action as though they were till alive. This is a unique benefit of the Elder Abuse Act.

In addition, the death of an elder or dependent adult not only may continue after death in the decedent's name, but it also gives rise to a wrongful death action for the eligible surviving heirs. In effect, two cases arise after the death: the decedent's personal case, as well as a wrongful death case for the survivors. The differences between these two cases are major. The survival action looks at the decedent's injuries and becomes an asset of the decedent's estate, while the wrongful death action is meant to compensate the heirs for their own losses.

What Service Can Walton Barber LLP provide?

Walton Barber LLP has successfully prosecuted nursing homes and residential facilities for neglect and abuse for years, and is recognized as leading law firm in this area of law. As a first step, we will discuss your case with you, free of charge, and guide you through the process of either pursing a legal case if that's your desire, or directing you to the proper authorities to remedy the situation.

To begin the process, please submit your confidential question online, or call Walton Barber LLP for a free and private consultation. We can be reached toll free at (866) 607-1325 or locally at (760) 607-1325.