Elder Abuse And Nursing Home Liability Cases, Frequently Asked Questions (FAQ)

• What is elder abuse?
  • Elder abuse law in California largely focuses on the “Elder Abuse and Dependent Adult Civil Protection Act (EADACPA).” Broadly speaking, abuse under an EADACPA claim in a civil action includes “physical abuse, neglect, fiduciary abuse, abandonment, isolation or other treatment with resulting physical harm or pain or mental suffering, the deprivation by a care custodian of goods or services which are necessary to avoid physical harm or mental suffering.”
• Who is considered an “elder” under the law?
  • Elder abuse protection applies to any resident in California who is 65 years of age or older; “dependent adults” who are defined as any person residing in California between the ages of 16 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, and any person between the ages of 18 and 64 who is admitted to a 24-hour healthcare facility, including general acute-care hospitals, psychiatric hospitals, chemical dependency recovery hospitals and skilled nursing and intermediate care facilities. Thus, while in a hospital of almost any kind, an otherwise young, healthy adult is entitled to protection under the Elder Abuse laws.

• What constitutes physical abuse under the Elder Abuse and Dependent Adult Civil Protection Act?
  • The following acts are considered physical abuse: assault, battery, assault with a deadly weapon, force likely to produce great bodily injury; unreasonable physical constraint or prolonged or continual deprivation of food or water; any type of sexual assault and battery; use of physical or chemical restraint or psychiatric medication for punishment.
• What constitutes neglect under the Elder Abuse and Dependent Adult Civil Protection Act?
  • Neglect includes a failure to act reasonably in the care of an elder or dependent adult. This would include failure to assist in personal hygiene and the provision of food, clothing and shelter; failure to prevent malnutrition or dehydration.
• Where does elder abuse most frequently occur?
  • Under the law, elder abuse can occur in any setting. However, most cases arise out of nursing homes which are understaffed, and the staff that exists is poorly trained.
• What are the enhanced remedies under the elder abuse statutes?
  • The plaintiffs in an elder abuse case are entitled to recover monetary damage for the elder’s pain and suffering, even if the elder dies before trial. This makes elder abuse cases different from any other personal injury case where the right to recover damages for pain and suffering dies with the plaintiff.
  • Further, if the plaintiff prevails in an elder abuse case, he or she is entitled to recover attorneys’ fees. This is a particularly significant element of elder abuse cases because frequently the attorney fee award can be higher than the actual damage awarded to the plaintiffs.
• What damages are recoverable in elder abuse cases?
  • If the elder is still alive, he or she can recover past and future medical expenses which would include increased care expenses, past and future wage loss if there is any, and damages for past and future pain and suffering. In addition, the elder can be awarded punitive damages if the misconduct is severe enough. In cases where the elder has died, the survivors are entitled to recover all of the above damages plus damages resulting from the loss of society care and comfort which would have been provided to them by the elder. Further, plaintiffs are entitled to attorneys’ fees.

•  Is it important to perform a thorough investigation in elder abuse cases?
  • It is critical that the plaintiff’s attorney performs a complete and thorough investigation in elder abuse cases, particularly cases against nursing homes. The investigation should include obtaining evidence of the actual abuse to the plaintiff, and other patients at the facility both during the time that plaintiff was in a nursing home and before. Further, a thorough investigation should be done to determine whether or not any of the many statutes regulating nursing homes had been violated; and, whether the nursing home had been cited for violations to the plaintiff and other patients and whether the nursing home took corrective action.
• Do I need to retain an attorney in an elder abuse case?
  • Yes. These cases involve complex legal, factual and damage issues, and if you win you will be awarded your attorney fees.
• Will my elder abuse case settle out of court?
  • Probably. A high percentage of elder abuse cases settle at some time before trial.

Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with an attorney.