California Senate Bill 558 (Simitian) has passed the Senate Judicial Committee and is slated to go to the Senate Floor on or before May 13. This bill lowers the burden of proof for physical elder abuse act claims from clear and convincing evidence to a preponderance of the evidence. The preponderance standard requires the plaintiff prove it was more likely than not that their loved one was abused or neglected. The clear and convincing standard is not quite as high as a criminal standard (i.e. beyond a reasonable doubt), but requires a jury to be convinced that neglect or abuse occurred.
It seems fundamentally unfair to me that frail, elderly victims, whom the legislature has already deemed worthy of special protections, are subjected to a legal standard which is much higher than other civil litigants who are injured as a result of less egregious conduct, i.e. negligence. Also, it seems fundamentally unfair that this class of litigants actually has to meet a higher burden of proof when seeking elder abuse act remedies for physical abuse and neglect, but that the higher standard for elder financial abuse does not apply. SB 558 makes sense because it makes the legal standard for neglect and abuse cases consistent with the standard for financial abuse standards and other claims for serious personal injury.
When I meet a new client, who is profoundly affected by the injury or death of a loved one in a nursing home, I take the time to explain to them all the procedural hurdles which stand between the victim and justice. The list is mighty long, and while the typical layperson doesn't appreciate the subtle differences between "clear and convincing" and "preponderance" burdens of proof, they do understand that it is harder to obtain a verdict for elder abuse act remedies than a car accident or a slip and fall. I am often asked: "How could that be? Why is an elderly victim, who should have more access to justice because of their particular frailties, not less, subjected to a much higher standard?" I am unable to provide a cogent answer.
The sound policy of the Elder Abuse Act is to assist abused seniors and dependent adults in bringing their claims and achieving accountability. But the elevated burden of proof is contrary to this policy. The "clear and convincing standard" is particularly burdensome in the context of elder abuse because the litigant is either deceased or old, frail, or demented with poor memory, and the nursing home defendant has control over what gets documented about the event and what information is conveyed to the family. I often find evidence of missing records, fraudulent record-keeping, and mis-information provided to families. Unwinding the evidence and finding the truth is hard enough, without having to meet this higher standard.
If elder abuse attorneys are going to continue to take up the charge of representing this class of individuals, they should be permitted to do so on the same playing field as other personal injury victims. There is even less government oversight and enforcement of rights with severe budget cutbacks, now than when EADACPA was first enacted. Furthering the policy of promoting private civil actions to deter misconduct would be achieved by enacting SB 558 and for that reason; I give it my full support.
