INTRODUCTION

Elder law issues are one of the fastest growing areas of law. With California's elderly population projected to nearly double within the next 20 years, from 3.7 million to more than 6.4 million, this trend is likely to accelerate. The cornerstone of civil litigation in Elder law is the Elder Abuse And Dependent Adult Civil Protection Act (EAADAPA; Welf. & Inst. Code 15600 et. seq.) This article addresses some of the primary issues presented in Elder Abuse civil litigation cases.

THE ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTECTION ACT

The purpose of EAADAPA is to protect vulnerable elders and dependent adults from "abuse, neglect, or abandonment..." (15600(a)). "Elder" means any person over the age of 65. (15610.27). "Dependent Adult" is a person between the age of 18 and 64 with "physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights ...." (15610.23).

Abuse includes physical abuse, financial abuse and neglect. (15610.07). "Physical Abuse" includes assault or battery, sexual misconduct, and improper physical or chemical restraints. (15610.63). "Financial Abuse" occurs when a person or entity takes or misappropriates real or personal property for wrongful use in bad faith, or with intent to defraud. (15610.30). "Neglect" for the purpose of EADAPA claims means "the negligent failure of any person having the care or custody of an elder or a dependent adult" to exercise reasonable care. (15610.57(a)). "Neglect" by a care or custodial provider specifically includes the failure to assist in personal hygiene or in the provision of food, clothing, or shelter; failure to provide medical care for physical and mental health needs; failure to protect from health and safety hazards; and failure to prevent malnutrition or dehydration. (15610.57(b)). Custodial or care providers for purposes of EADAPA claims include licensed health care providers, although, as discussed below, in some circumstances the protections applicable to professional negligence actions against those providers may also apply to elder abuse actions. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 785 ).

EAADAPA provides both criminal penalties (15656) and civil remedies (15657) for elder abuse. The remedies for civil claims brought by the victim or their survivors depend upon the degree of wrongful conduct constituting the abuse. Negligent elder abuse, claims based solely upon a violation of the custodian or caregiver's reasonable care duty based upon omissions ( "a failure to provide...") to provide care or services, renders the defendant liable for damages, economic and non-economic, incurred by the elder. If the neglect is a cause of the elder's death, the survivors having standing may bring a wrongful death claim. (Quiroz v. Seventh Avenue Center (2006) 140 Cal. App. 4th 1256). However, if physical abuse or neglect is proven by clear and convincing evidence to have been committed with "recklessness, oppression, fraud or malice", then heightened remedies are available. (15657).

"Recklessness" is defined as "the deliberate disregard of the high degree of probability that an injury will occur.... It rises to the level of a conscious course of action with knowledge of the serious danger to others involved." (Delaney v. Baker, (1999) 20 Cal. 4th 23, 31-2). The heightened remedies include reasonable attorney's fees and costs. (15657(a)). They also include the survival of a deceased elder's personal claims for damages for pain and suffering, emotional distress, personal injury, or other non-economic harm that would not, in other cases, survive the death of the elder under the statutory prohibition of C.C.P. section 377.34. (15657(b)). The rights to this survival action rest with the successors in interest of the decedent, who act on his or her behalf. (Sabibin v. Superior Court (2006) 144 Cal. App. 4th 81, 88-9). The heightened damages allowable may not be imposed upon an employer in the absence of clear and convincing evidence of ratification, advance knowledge, or the Officer-Director-Managing Agent knowledge or misconduct as defined in the punitive damage statute, Civil Code section 3294. (15657(c)). The same rights exist in financial abuse claims under W & I Code 15657.5 as are provided in physical abuse or reckless neglect claims under 15657, with the distinction that the underlying financial abuse claim itself need only be proven by a preponderance of the evidence in financial abuse cases. (15657.5(a,b)). In physical abuse or neglect cases, that burden of proof as to both the underlying claim and causation is the clear and convincing standard. (Perlin v. Fountain View Mgmnt. Inc., (2008) 163 Cal. App. 4th 657, 15657(a)).

MED MAL OR ELDER ABUSE?

A cause of action for injury or damages against a health care provider based upon professional negligence is specifically exempted from EADAPA. (15657.2; Covenant Care, Inc v. Superior Court, supra, 32 Cal. 4th at 785). Because many institutional custodians or care providers are hospitals, physicians, skilled nursing facitilies, or other licensees as defined in C.C.P. section 340.5, most neglect claims arising out of failure to care for an elder fall under the restrictive limitations and barriers encompassed in the provisions of "MICRA". (e.g. admission of certain collateral source evidence, Civ. Code 3333.1; $250,000 cap on general damages, Civ. Code 3333.2; shortened statutes of limitations C.C.P. 340.4 and 340.5).

However, even where the defendant is a health care provider, the MICRA limitations only are applicable where the claim is based upon acts of "professional negligence." In the landmark case of Delaney v. Baker (1999) 20 Cal.4th 23, the California Supreme Court held that acts of a licensed health care provider that were "reckless" or constituted "oppression, fraud, or malice" were outside the scope of the term "professional negligence" under EADAPA. As Justice Werdegar later explained, "claims under the Elder Abuse Act are not brought against health care providers in their capacity as providers, but, rather, as custodians and caregivers that abuse elders and that may or may not, incidentally, also be health care providers." (Covenant Care v. Superior Court, supra, 32 Cal. 4th at 786). Even in such cases, however, the $250,000 general damage limit is still applied to a survival claim. (15657(b)).

Because the law draws a line between elder abuse and professional negligence of a health care provider, several cases have refused to apply MICRA or other restrictions on patient's rights in professional negligence claims to cases brought under authority of EADAPA. The Court of Appeals in Benun v. Superior Court (2004) 123 Cal. App. 4th 113 held that the 2 year personal injury statute of limitations applied to elder abuse claims against health care providers arising under 15657, rather than the shorter and more restrictive provisions of C.C.P. 340.5. The Supreme Court in Covenent Care, Inc. v. Superior Court, supra., refused to apply the health care provider professional negligence punitive damage pleading hurdle of C.C.P. 425.13 to elder abuse cases. And the Court of Appeals in Smith v. Ben Bennett, Inc. (2005) 133 Cal. App. 4th 1507, 1523-6 held that the notice requirement and related 90 day tolling provisions of C.C.P. 364 are neither required nor applicable in elder abuse claims.

PROOF OF ELDER ABUSE

Many cases have looked at specific factual settings and provide examples of elder abuse. In medical or financial cases, the assistance of an expert who can point out not only applicable standards that were violated, but the known gravity of the risk and the training and education background of the defendant to show the requisite elements of knowledge to meet the "reckless" standard. Juries deciding this issue are instructed that "Recklessness" means the defendant "knew it was highly probable that his/her conduct would cause harm and he/she knowingly disregarded this risk." (CACI 3113).

Many of the experts commonly used in professional negligence cases are also used in elder abuse law. Physicians, including Geriatric specialists, Internists, Neurologists, and Hospitalists address both standards and causation or life expectancy issues. Nursing experts are often involved to address staffing, administration of medication, or prevention of decubitis ulcers. In many of these cases, there is far more involvement of licensees other than RNs or MDs. Administrative staff experts or patient care managers, including nutritionists or nurses with knowledge of issues of nutrition and feeding standards, fall risk assessment and prevention, or patient care plans are essential in most cases. In addition, these experts can address facility failures in practices, procedures, or protocols that are caused by management decisions, which unfortunately are sometime based on financial rather than care concerns. These cases, arising out of inadequate staffing or employee training, appropriate qualifications of diet and nutrition or other care services personnel, or violations of Health and Safety or Government Code requirements or regulatory standards, may be the basis of punitive damages and employer liability under the enhanced remedies of section 15657.

Cases interpreting the sufficiency of specific facts to constitute an elder abuse claim include Mack v. Soung (2000) 80 Cal. App. 4th 966, where a finding of recklessness was supported by evidence that the treating doctor of a elderly patient in a nursing home withheld the existence of serious bedsores (decubitis ulcers) from the patient's family, and objected to transferring her to a higher level of care; Intrieri v. Superior Court (2004) 117 Cal. App. 4th 72 where failure to address bed sores and failing to secure an Alzheimer's patient from assault by a violent non-Alzheimer's patient residing in a different ward were held sufficient to meet the reckless standard; and Sabibin v. Superior Court, supra., 144 Cal. App. 4th 81, where failure to consult or follow the patient care plan of a Huntington's Chorea dependent adult patient in a rehabilitation center caused her to suffer a serious skin deterioration, resulting in death. The Court in Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal. App. 4th 426 found facts sufficient to constitute elder abuse where a patient with a known risk of osteomyelitis and susceptibility to pressure sores received neither adequate wound prevention and care nor adequate nutrition or assistance with eating, and died of aspiration pneumonia. There are, regrettably, many more.

CONCLUSION

California has enacted one of the strongest elder and dependent adult abuse prevention laws in the nation, and recent cases have not weakened these important public and personal protections. As our population turns more gray, the prevelance of these cases will continue to increase as many disregard the rights and safety of the most vulnerable portion of our society.