California Elder Abuse Lawyer Blog

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.

Continue reading "California Proposed Elder Abuse Legislation May Lower Burden Of Proof " »

Typically, when a family member comes to my office, it is because their loved one has suffered a serious injury or even death under surprising or suspicious circumstances. We are called upon to review clinical charts and records and consult with experts to determine whether anyone did anything wrong and, if so, how egregious was the misconduct. In prior posts, I blogged about the heightened pleading standards associated with an elder abuse claim. This blog expands upon the topic of proving a knowing disregard of someone's health or safety, or providing corporate liability for authorizing or ratifying misconduct, by finding false charting in a medical record.

Fraudulent medical records can be used to show any manner of problems with a facility that elects to "skirt the rules" and offer after-the fact "paperwork compliance" rather than the care the patient needs. Below are some of the ways in which a frauded record may prove your case:

1. Uncovering the fraud might actually reveal the true condition of your loved one, such as when abnormal vital signs have been changed to look normal.
2. A changed medical record might be used to show that a nurse knew a certain fact (like a fall risk factor), but later changed the record to show no risk.
3. Frauded records might also serve to prove that a medical condition requiring attention went unnoticed for an extended period of time, such as when a time or date is altered to make it seem a change in medical condition happened too quickly to intervene, rather than over time.
4. Rote charting, sometimes referred to as "dry-labbing" can be used to show care was documented, but not actually provided, such as the same person documenting 3 shifts per day for 30 days in a row that a patient was turned and repositioned every 2 hours to prevent formation or worsening of bedsores.

Continue reading "How does a Fraudulent Medical Record Help Prove Your Case?" »

In addition to marshaling "clear and convincing" evidence of recklessness, malice, oppression, or fraud to obtain enhanced remedies under the elder abuse act, if suing a corporation (like a nursing home chain), one must also show either (1) direct conduct by the managing agents of the corporation (like the president, CEO, nursing home administrator or nurse managers), or (2) authorization (before the fact) of the misconduct, or (3) ratification (after the fact) of the misconduct, or (4) knowledge of an unfit employee and continued employment nonetheless.

As I stated in prior posts, marshaling this evidence takes skill, insight, experience and sometimes, a bit of luck. Corporate liability might come in the form of deliberately under-staffing a facility or otherwise unreasonably limited the budget, supplies, and services. It might come in the form of concealing misconduct by falsifying or destroying records. It might come in the form unwritten (de facto) policies and procedures not to comply with the laws and regulations governing long term care facilities.

In one case, we were able to show that the facility administrator was aware of an employee's sexual misconduct with a resident, but failed to undertake any real investigation, failed to take any disciplinary action against the employee and then engaged in inappropriate sexual behavior with another resident. Because the facility was "on notice" of the employee's misconduct, and failed to take action to ensure it did not happen again, we were confident in our corporate liability position.

In another case, we were able to show that records were created after a fall to show that, prior to the fall, certain precautions and interventions were taken to minimize the fall risk or to minimize injury if the fall, in fact occurred. In this way, a chart was created to give the impression that proper care was provided before the fall, and therefore, that the fall was inevitable. By deconstructing the medical record, and casting doubt on the truthfulness of these records, we were able to show that management level staff took action after our client was injured to cover up their neglect.

These are but a few examples of the kinds of evidence which may be available in an elder abuse case to hold a corporation accountable when an elder is the victim of egregious neglect. If the case is improperly focused on the mistake of a low-level employee, chances are enhanced remedies under the elder abuse act will not be available.

May is National Elder Law Month, according to the National Academy of Elder Law Attorneys, Inc. Attorneys who specialize in providing legal services to seniors are organizing around the country to put on educational seminars, provide pro bono services, and to raise awareness in communities regarding services available to seniors and people with disabilities.

Elder Law, as a descriptor, is best used to describe legal services involving estate planning, wills, trusts, guardianship and capacity issues, special needs trusts, and tax planning. Typically, "elder law" attorneys draft documents and practice in probate court (as opposed to civil court). An elder law attorney does not necessarily have the expertise and resources to litigate an "elder abuse" case.

An Elder Abuse attorney, on the other hand, does not typically handle the transactional work of wills, trusts, and planning. Rather, they have special skills and expertise in handling complex personal injury litigation, with in-depth knowledge of the laws governing nursing homes, doctors, nurses, and other providers of care to the elderly.

Therefore, when you see the term "elder law" attorney, do not assume the attorney has experience actually filing, investigating, and trying an elder abuse case. By the same token, if you know an elder abuse attorney, do not assume they have estate planning know-how. You have to ask the right questions to find the right person for the job.

I previously blogged about the differences between a medical malpractice claim and elder abuse / neglect claim. Elder Abuse is a growing field of law and many plaintiff attorneys are motivated to take these kinds of cases based on the allure of the heightened remedies described therein (attorneys fees, and potentially punitive damages). However, elder abuse/neglect cases are not easy to prove. Recall, in order to recover general damages (if the elder is deceased) and attorneys' fees, a plaintiff must prove recklessness, malice, oppression, or fraud. Moreover, to prove punitive damages, one must prove malice, oppression or fraud. To prove punitive damages against a corporate employer (like a skilled nursing facility) requires a showing of advance knowledge of the unfitness of an employee or authorization or ratification of the wrongful conduct by a managing agent of the corporation. Whew! That's a lot of hurdles between injury and accountability.

The standard of proof is also elevated. When financial abuse is proven by a preponderance of the evidence, the victim may recover general damages and attorneys' fees and costs. However, clear and convincing evidence is required for pre-death pain and suffering. In an action based upon physical abuse or neglect, in order to recover any of the enhanced remedies, the standard of proof is clear and convincing evidence.

Recklessness means the abuser knew it was highly probable his conduct would cause harm, and he or she knowingly disregarded the risk. Distinct from malpractice, or negligence, recklessness requires more than just a failure to use reasonable care under the circumstances.

Continue reading "California Elder Abuse Law: Proving Recklessness, Malice, Oppression, or Fraud" »

What constitutes elder or dependent adult abuse in California is specifically defined by the Elder and Dependent Adult Civil Protection Act. An elder is anyone over age 65. Welf. & Inst. Code Section 15610.27. A dependent adult is any person between the age of 18 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. Welf. & Inst. Code Section 15610.23.

Abuse of an elder or dependent adult means neglect, physical abuse, financial abuse, or other treatment resulting in physical or mental pain or suffering. Elder abuse also includes deprivation by a care custodian of services which are necessary to prevent physical or mental pain or suffering. Welf. & Inst. Code Section 15610.57.

The statute further defines each kind of abuse to include:

1. Neglect - Welf. & Inst. Code §15610.57


2. Physical Abuse - Welf. & Inst. Code §15610.63


3. Financial Abuse - Welf. & Inst. Code §15610.30

What is the Elder and Dependent Adult Civil Protection Act (EADACPA)?

In California, the Legislature has adopted a set of laws which are collectively known as the Elder and Dependent Adult Civil Protection Act or EADACPA. Welf. & Inst. Code Section 15600 et seq. Through EADACPA, the Legislature recognized that persons age 65 and older are members of a disadvantaged class worthy of heightened protections. The lawmakers further recognized that it is an important state responsibility to protect elders from abuse and neglect, and enacted EADACPA to meet that goal.

Specifically, the Legislature afforded certain heightened remedies to encourage private enforcement of the laws through litigation. Such remedies include pre-death pain and suffering, attorneys' fees and costs, and exposure to punitive damages. Welf. & Inst. Code Section 15657.