Recent Trends in Elder Abuse Litigation

October 1, 2003

Although the California Legislature formally recognized the increased susceptibility of the elderly and dependent adults to be abused or neglected more than 20 years ago, the Welfare and Institutions Code Section 15600, et seq, was not fully utilized by the plaintiff's bar until the late 1990's. The initial increase in cases filed under the "Elder and Dependent Adult Civil Protection Act" was clearly an attempt to circumvent the limitation on general damages under California's MICRA statute. Recently we have begun to see these claims outside the traditional nursing home arena. In addition, the courts are continuing to expand the reach and effect of the statute.

The major advantage for plaintiffs is that the Act allows recovery for attorneys fees and allows the next of kin to recover pre-death pain and suffering damages that would otherwise be barred under California law, in addition to possible punitive damages. In order to recover the expanded remedies provided in the statute, the plaintiff must establish that the injured party was (1) a California resident; (2) over 65 years old, OR A DEPENDENT ADULT BETWEEN THE AGES OF 18-64; (3) the abuse must be shown to be either neglect, physical abuse or fiduciary/financial abuse; and (4) there must be recklessness, oppression, fraud, or malice in the commission of the abuse. Finally, the allegations must be proven by "clear and convincing evidence."

There has been a dramatic increase in the number of cases filed on behalf of "dependent adults." A dependent adult is anyone, ages 18-64, who has physical or mental limitations that prevent the carrying out of normal daily living activities. A dependent adult is further defined as "any person between the ages of 18-64 who is admitted as an inpatient to a 24 hour health facility. Clearly these definitions provide fertile ground for a clever plaintiff's counsel to expand the pool of potential persons arguably covered by the Act. We can no longer assume that "Elder Abuse" applies only to the elderly nursing home patient.

A few examples of recent cases handled by our office illustrate the expansion of the statute. The first case involves what at first glance is a generic claim for legal malpractice. The plaintiff, a 66 year-old doctor, claimed that he was overcharged by his former lawyers. In addition, the plaintiff claimed remedies under the Act, alleging that the actions of his former lawyers, in over billing him, constituted "financial abuse" under the statute. Although we demurred to the Elder Abuse cause of action, the judge allowed the claim to stand at the pleading stage, notwithstanding the court's statement that this appeared to be a "garden variety" legal malpractice claim, not elder abuse. Unfortunately, the ruling will make the case more difficult to resolve short of trial because both plaintiff and his counsel continue to have unrealistic aspirations as far as the potential heightened remedies under the statute are concerned.

The second case concerned a 27 year-old woman who voluntarily checked herself into a psychiatric facility. Once there, she continued to carry on a rather active sex life with her boyfriend. Upon becoming pregnant, she sued the facility, claiming, among other things, dependent adult abuse. Through discovery, we were able to show that the claim lacked merit and to dispense with the claim for nuisance value. We have also seen "Elder Abuse" claims in the context of bad faith litigation, landlord tenant disputes and homeowner association claims.

A recent California Appellate Court case, Norman v.Life Care Centers of America 107 Cal.App. 4th 1233 (2003), provided more ammunition to the plaintiff's bar for prosecution of these claims. In Norman, plaintiff sued individually and as successor in interest for her deceased 87 year-old mother, (the patient). The patient was admitted to the defendant's skilled nursing facility on January 16, 1999. Her initial fall risk assessment reflected a "moderate" risk for falls, with call alarm, low bed position, and side rails up ordered. Over the next three weeks, the patient attempted to climb out of bed on several occasions and suffered at least four falls. After each fall, additional precautions were taken, ultimately leading to physical restraints as of February 8,1999, after a serious fall which resulted in numerous injuries. On June 4,1999, the patient died while residing in another facility.

Plaintiff sued for elder abuse and wrongful death. After a lengthy trial, the jury found for the defense. On appeal, plaintiff argued that a requested instruction on negligence per se should have been given. The appellate court, citing evidence that the defendants violated Title 22 of the California Code of Regulations regarding patient rights, agreed and sent the case back for retrial. In its ruling, the court stated: "Based on our consideration of the entire record, we conclude that it is reasonably probable plaintiff would have received a more favorable verdict in the absence of the trial court=s error in refusing to instruct on negligence per se." A petition for review is currently pending with the Supreme court.

The reasons that this ruling is distressing are twofold. First, the opinion assumes that all of the testimony regarding the Department of Health Services investigation is admissible. Previously, defense counsel had fought long and hard to keep evidence of DHS violations out of evidence because of their obvious prejudicial impact. Second, almost every elder abuse case will provide skilled plaintiff's counsel with a violation of one of the Title 22 regulations, no matter how trivial. Allowing plaintiffs to shift the burden of proof to the defendants via a negligence per se instruction will make obtaining a defense verdict at trial that much more difficult. We will continue to monitor this case closely to see if it is either de-published, or accepted for review.