Elder Abuse and Dependent Adult Civil Protection Act – A Guide to Litigation
At Berberian Ain, elder abuse is one of the primary areas of law that we focus on. From so-called “patient dumping,” to nursing home neglect and even COVID-19 related abuses, our attorneys are fighting tirelessly around the clock to protect our precious senior family members, friends, and community treasures.
As part of our litigation, we frequently refer to California’s Elder Abuse and Dependent Adult Civil Protection Act to support our arguments. Today, we’re taking a closer look at the Act to give a foundational understanding of how we use this law to proactively fight for justice on behalf of our elderly clients and their families.
Part 1 - History of the Act
Aware that there was a growing problem in the lives of California’s elderly population, the state legislature enacted the Elder Abuse and Dependent Adult Civil Protection Act in 1982. By creating this Act, the state acknowledged the scope of the problem and formally codified into law language that underscored the grim reality of the abuses taking place every day.
Senior citizens and dependent adults are some of the most vulnerable populations for virtually every kind of abuse imaginable. With this Act, the state laid out critical reporting requirements and procedures (Welf. & Inst. Code, § 15600, et seq.)
In order to strengthen the Act, the state took even bolder action in 1991 that made it easier and more effective for victims of elder abuse and their counsel to prosecute claims and recover additional punitive damages — assuming that the victim’s attorney could clearly link the defendant’s actions to physical abuse, neglect, or financial abuse under the scope of the law… while additionally showing that the defendant was guilty of recklessness, oppression, fraud, or malice while committing said abuses.
In other words, a precedent was being set to help seniors and their families recover larger monetary awards, but only if their attorney could follow the very specific criteria laid out in this new section of the Act which required a more rigorous standard of proof.
Part 2 - The Act’s Statutory Definitions
As with anything related to California law, the specific wording and semantic definition of the Act matters a great deal when it comes to litigating. In this case, the Act defines abuse as “physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering,” as well as the “deprivation by a care custodian of the goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code, §§ 15610.07, subd. (a), 15610.07, subd. (b).)
Some of these abuses are more immediately clear than others. Physical abuse can be one of the easiest to understand, and unfortunately one of the most common. This can include assault, battery, assault with a deadly weapon, physical constraint, and the deprivation of food and water. It also includes sexual assault or the abusive use of medication for the purposes of restraint or punishment.
We can think of these as primarily “actionable” abuses, or things that are done “to” someone. On the other hand, there are also abuses that occur as the result of things not done, which should have been. In these cases, we’re talking about “neglect.”
We entrust caretakers and medical professionals to provide physical and mental health services with a level of ethics, care, compassion, and responsibility for the well-being of the senior citizen. Neglecting the care of someone who is entirely or partially dependent on outside assistance is a grave breach of duty of care — and luckily, the Act recognizes this in a very clear-eyed way.
Part 3 - A Guide to Pleading Claims Under the Act
Unfortunately, not every situation where it appears that a senior was treated with neglect is a candidate for litigation under the very specific guidelines in this Act. The Act provides for potentially greater monetary recovery, which makes rightfully angry family members and victims tempted to take a “home run swing” at these higher level claims.
However, it is usually a strategic misstep to make a claim under the Act unless the abusive conduct is so abhorrent, and the record of evidence so abundant, that the attorney is confident the case qualifies for these enhanced remedies.
This is a particularly tricky situation in cases involving neglect, because true neglect under the definition of the Act requires the defendant to be shown to have known about the conditions that made the dependent adult suffer. And, they must be shown to have knowingly denied the care, medicine, or food/water with the direct knowledge that doing so would result in injury to the senior. This is a key distinction that we might refer to as the difference between “negligence” and “neglect.” Certainly, negligence may be tortious conduct, but it does not rise to the standard of proof required to successfully allege “neglect” under the definition of this Act.
The justice system relies heavily on established precedent to make determinations about subsequent events; and in this question of negligence versus neglect, one case is the most notorious. Carter v. Prime Healthcare Paradise Valley LLC was a landmark case involving elder abuse that established several tragic and grisly scenarios that the Court determined to exemplify the heightened language allowing for additional remedies in the Act.
These scenarios included the deprivation of medication, food and water to an elderly Parkinson’s patient, who was left unattended in pools of his own excrement for such periods as to cause ulcers and exposed bone and muscle tissue. Then, the staff willfully misrepresented his condition to family members, allegedly to hide their misconduct.
In other scenarios from this case, victims were left in similar conditions despite speaking up and complaining about it to staff and administration, as well as a nursing home ombudsman. A subsequent claim against Pioneer Medical Group, Inc. was based on some key elements, including pleading the existence of a “robust caretaking relationship – that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.”
In summary, an obvious and significant pattern of neglectful abuse by staff who have knowingly assumed responsibility and then willfully disregarded that responsibility, is the primary theory with which to litigate elder abuse as a separate cause of action.
Part 4 - Accepted Standards of Culpability
When trying to plead standards of culpability in elder abuse cases under the Act, attorneys are really looking at four main pillars: recklessness, oppression, fraud, or malice.
- Recklessness can be defined as a willful disregard of the obvious consequences that will result from neglectful or abusive actions, with conscious knowledge of the danger therein (Civ. Code, § 3294, subd. C; Delaney, supra, 20 Cal.4th 23).
- Malice is “despicable conduct” that is “vile” and “contemptible” in its conscious carelessness for the harm one’s actions cause another human being.
- Oppression is an action or actions that cruelly cause the victim to experience suffering and unjust hardship.
- Fraud is the conscious attempt to trick or deceive, cause another person to become partially or wholly reliant on the abuser, usually with the intent to take advantage of the victim financially or in some other way.
Part 5 - How To Identify Defendants
When it’s clear that a terrible case of elder abuse has occurred, there can be a troubling question that may not have an obvious answer on its surface: who, exactly, is the defendant in these matters? Is it the physician, the nurse, the administrator, the medical group, the corporation?
Certainly, corporate parents can be liable for the abuse or neglect, especially if it is shown that they have an active role or influence in the day-to-day operations of the nursing home, assisted living facility, etc. However, there is no vicarious liability for claims under the Act — in other words, as mentioned before, you need to show willful and knowing intention to abuse or neglect. A corporation (under this specific Act) cannot be “guilty by association,” and many elder abuse claims have been derailed because of this fact.
One potential way around this is in terms of the chain of command, such as in situations where a managing director was totally aware of an employee’s neglectful or abusive conduct, and enabled or authorized the conduct. Additionally, corporations that knowingly hired employees with background information that demonstrates their unfitness for such a position may also be grounds for liability.
Part 6 - Discovery and Case Supporting Documents
Discovery in these elder abuse cases pled under the Act typically rely on a set of critical documents that act as the evidentiary foundation for the claim.
- State Investigation – Filing a Freedom of Information Act request while going directly to the State of California can begin a crucial paper trail in the process.
- Medical Records – This should be as comprehensive as possible, and should not only be related to the abusive incident being claimed.
- MAR (Medicine Administration Record) – If you have an elderly loved one in a care facility, you may already be familiar with the MAR, TAR (Treatment Administration Record), and MDS (Minimum Data Set). This will provide eye-opening insight into the diligence of the facility’s operations and level of care.
- Facility Records – This can include patient complaints, reviews, quality reports, etc, to establish a baseline reputation for the facility.
- Financial Records – Cost reports and operating expenses often shine a damning light into the inner workings of these facilities, and may underline a pattern of corruption or mal intent that speaks quite loudly on behalf of the victims.