What Does the Elder Abuse Act Say About Elder Neglect vs Negligence?
In 1991, the California Legislature enacted the Elder Abuse and Dependent Adult Civil Protection Act (commonly known as ‘the Elder Abuse Act’), which recognized that frail elderly individuals and dependent adults constitute a vulnerable and disadvantaged population, that abuse of these individuals is rarely prosecuted criminally, and that few civil actions are pursued due to evidentiary challenges, court delays, and insufficient incentives to bring such cases.
To address these concerns, the Elder Abuse Act allows plaintiffs to recover attorneys’ fees and certain pre-death pain and suffering damages, in addition to all other remedies available under the law.
Under the applicable statutory framework, a cause of action for simple elder neglect requires proof of the following elements:
- The plaintiff was 65 years of age or older, or was a “dependent adult” as defined by Welfare and Institutions Code.
- The defendant had care or custody of the plaintiff.
- The defendant neglected the plaintiff.
- The plaintiff suffered harm.
- The defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
We looked at the care or custody requirement in a previous blog, but in brief, it refers to a relationship where an individual or facility has assumed a substantial caretaking or custodial relationship with an elder, involving responsibility for one or more of their basic needs. If the elements above are established by a preponderance of the evidence, juries may award damages for past and future economic losses, as well as past and future pain and suffering.
Plaintiffs seeking the enhanced damages outlined above for neglect must establish the following:
- All elements of simple neglect listed above, proven by clear and convincing evidence.
- That the defendant’s neglect was ‘reckless, oppressive, malicious, or fraudulent.’
- That an officer, director, or managing agent of the defendant either: personally engaged in the misconduct; authorized the misconduct; ratified the misconduct; or knew of the unfitness of the employee who committed the misconduct and nevertheless employed or retained them.
Professional Negligence Versus Neglect Under the Elder Abuse Act
The distinction between “neglect” and “professional negligence” can be challenging because most healthcare facilities, including nursing homes, provide both custodial services and professional medical care. For example, allegations of malnutrition may involve professional negligence, such as the failure of nursing staff to properly prescribe or carry out a nutritional care plan, but that same conduct would also constitute neglect under the Elder Abuse Act.
The defendant’s level of culpability is key. Where the neglect is reckless, oppressive, fraudulent, or malicious, the claim falls within the scope of Welfare and Institutions Code section 15657 and therefore cannot be characterized as an action “based on professional negligence.”
If you believe your loved one has suffered abuse in a nursing home or assisted living facility, consult an experienced elder abuse attorney. To receive a free consultation from an elder abuse lawyer in Los Angeles, San Francisco, Santa Barbara, or Sacramento, contact Dudensing Law here.