Defending Elder Abuse Claims

July 1, 2003

By: Michelle Hancock

Elder Abuse related litigation continues to be a dynamic area of law in California. The amount of claims filed is growing exponentially as the population ages.

The issue of whether or not the $250,000 cap under the MICRA statute still has not been decided. The California Supreme Court heard oral arguments on the pending case, Covenant Care, Inc. v. Superior Court (2001) 89 Cal.App.4th 928 (2d DCA, Div. 1), in March 2003. No decision has been published to date. Until the Covenant Care decision is published, the citeable law in California remains that the MICRA status applies to an elder abuse action against skilled nursing facilities. Bear in mind that the MICRA cap will not apply, to a defendant Residential Care Facility for the Elderly (sometimes referred to as a "Board and Care"), a managing agent or officer, or to a corporate owner of the facility.

To update the section relating to alleged violations of the Consumer Legal Remedies Act, set forth in Civil Code section 1780, the plaintiffs may request actual damages of no less than $1,000, punitive damages, and an order enjoining any unlawful methods, acts or practices that injured the senior citizen or disabled person. The statute also allows up to $5,000 to the senior citizen where the trier of fact finds (1) that the consumer has suffered substantial physical, emotional or economic damage resulting from the defendants conduct, (2) makes an affirmative finding in regard to one or more of the factors described in Civil Code section 3345; and (3) finds that an additional award is appropriate.

In order to succeed on a Consumer Legal Remedies Act claim, the Plaintiff must prove that he or she was damaged as a result of prohibited conduct. Further, a prequisite to filing an action for violation of the Consumer Legal Remedies Act, the Plaintiff must notify the alleged tortfeasor (defendant) and demand that such person "correct, repair, replace or otherwise rectify the goods or services". If the alleged tortfeasor offers to correct the problem within thirty days, no action will be allowed. Many plaintiff attorneys will not know the nuances of this section, and will fail to forward a demand that the alleged violation(s) be corrected, thereby depriving the plaintiff of this claim.

This article is a follow-up to Michelle Hancock's Elder Abuse article that appeared in the First Quarter 2002 issue of In-Brief. Ms. Hancock is a member of the firm's Health Law practice group, focusing her practice in the areas of medical malpractice, long-term care facilities and elder abuse.