Information
Answers to the Twelve Most Frequently Asked Questions in
Elder Abuse and Nursing Home Liability Cases (1)
1. WHAT IS ELDER ABUSE?
Elder abuse law in California largely focuses on the "Elder
Abuse and Dependent Adult Civil Protection Act (EADACPA)".
Broadly speaking, abuse under an EADACPA claim in a civil action
includes "physical abuse, neglect, fiduciary abuse, abandonment,
isolation or other treatment with resulting physical harm or pain
or mental suffering, the deprivation by a care custodian of goods
or services which are necessary to avoid physical harm or mental
suffering."
2. Who is considered an "elder" under the law?
Elder abuse protection applies to any resident in California
who is 65 years of age or older; "dependent adults" who are
defined as any person residing in California between the ages of
16 and 64 who has physical or mental limitations that restrict
his or her ability to carry out normal activities or to protect
his or her rights, and any person between the ages of 18 and 64
who is admitted to a 24-hour healthcare facility, including
general acute-care hospitals, psychiatric hospitals, chemical
dependency recovery hospitals and skilled nursing and
intermediate care facilities. Thus, while in a hospital of
almost any kind, an otherwise young, healthy adult is entitled to
protection under the Elder Abuse laws.
3. Who can bring an elder abuse lawsuit?
The following people can bring an action for elder abuse: an
elder or dependent individual who is living; the elder's or
dependent individual's estate or successors in interest if the
elder or dependent individual has died; the elder's or dependent
individual's family members if they witness the abuse and the
conservator or guardian of an incompetent elder or dependent
individual.
4. What constitutes physical abuse under the Elder Abuse and
Dependent Adult Civil Protection Act?
The following acts are considered physical abuse: assault,
battery, assault with a deadly weapon, force likely to produce
great bodily injury; unreasonable physical constraint or
prolonged or continual deprivation of food or water; any type of
sexual assault and battery; use of physical or chemical restraint
or psychiatric medication for punishment.
5. What constitutes neglect under the Elder Abuse and Dependent
Adult Civil Protection Act?
Neglect includes a failure to act reasonably in the care of
an elder or dependent adult. This would include failure to
assist in personal hygiene and the provision of food, clothing
and shelter; failure to prevent malnutrition or dehydration.
6. Where does elder abuse most frequently occur?
Under the law, elder abuse can occur in any setting.
However, most cases arise out of nursing homes which are
understaffed, and the staff that exist are poorly trained.
7. What does a plaintiff have to prove to win an elder abuse
case?
To be entitled to the special remedies in an elder abuse
case, the plaintiff must prove by clear and convincing evidence
that the defendant is liable for physical abuse, neglect or
fiduciary abuse and that the defendant has been guilty of
recklessness, oppression, fraud and malice in commission of the
abuse.
8. What are the enhanced remedies under the elder abuse
statutes?
The plaintiffs in an elder abuse case are entitled to
recover monetary damage for the elder's pain and suffering, even
if the elder dies before trial. This makes elder abuse cases
different from any other personal injury case where the right to
recover damages for pain and suffering dies with the plaintiff.
Further, if the plaintiff prevails in an elder abuse case,
he or she is entitled to recover attorneys' fees. This is a
particularly significant element of elder abuse cases because
frequently the attorney fee award can be higher than the actual
damage awarded to the plaintiffs.
9. What damages are recoverable in elder abuse cases?
If the elder is still alive, he or she can recover past and
future medical expenses which would include increased care
expenses, past and future wage loss if there is any, and damages
for past and future pain and suffering. In addition, the elder
can be awarded punitive damages if the misconduct is severe
enough. In cases where the elder has died, the survivors are
entitled to recover all of the above damages plus damages
resulting from the loss of society care and comfort which would
have been provided to them by the elder. Further, plaintiffs are
entitled to attorneys' fees.
10. Is it important to perform a thorough investigation in elder
abuse cases?
It is critical that the plaintiff's attorney performs a
complete and thorough investigation in elder abuse cases,
particularly cases against nursing homes. The investigation
should include obtaining evidence of the actual abuse to the
plaintiff, and other patients at the facility both during the
time that plaintiff was in a nursing home and before. Further,
a thorough investigation should be done to determine whether or
not any of the many statutes regulating nursing homes had been
violated; and, whether the nursing home had been cited for
violations to the plaintiff and other patients and whether the
nursing home took corrective action.
11. Do I need to retain an attorney in an elder abuse case?
Yes. These cases involve complex legal, factual and damage
issues and if you win you will be awarded your attorney's fees.
12. Will my elder abuse case settle out of court?
Probably. A high percentage of elder abuse cases settle at
some time before trial.
1. Most legal questions require complex answers. The answers
provided here may not be complete or fully accurate but attempt
to provide consumers with abbreviated answers. For a more
detailed answers to these questions, a consumer should check out
other articles in this section of this web site, research other
legal articles and texts on the subject matter or consult with an
attorney.
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