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Answers to the Most Frequently Asked Questions in
California Elder Abuse and Nursing Home Liability Cases

1. Who qualifies as an "elder" under the law?

An “elder” is any resident who is 65 years of age or older and special protection is afforded to this class of people; "dependent adults" are defined as any person between the ages of 16 and 64 who has physical or mental limitations which inhibits his or her ability to function normally and carry out activities of daily living, and any person between the ages of 18 and 64 who is admitted to a 24-hour healthcare facility. This includes general acute-care hospitals, psychiatric hospitals, chemical dependency recovery hospitals and skilled nursing and intermediate care facilities. Under the law, an otherwise young and healthy adult is entitled to protection under the Elder Abuse laws.

2. What is Elder Abuse?

“Elders” are afforded special protection under California law as embodied by the "Elder Abuse and Dependent Adult Civil Protection Act (EADACPA)". Abuse under an EADACPA claim is a civil action that may include "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."

3. Who has legal standing to bring a lawsuit for elder abuse?

In addition to the Elder or Dependent Individual who is living, many of the “elder’s” family members may do so as well, such as: the elder's or dependent individual's estate or successors in interest if the elder or dependent individual has died; the elder's or dependent individual's family members if they witness the abuse; and the conservator or guardian of an incompetent elder or dependent individual.

4. What remedies are available in elder abuse cases?

Assuming that the elder is still living, he or she can recover past and future medical expenses which may include increased care expenses, past and future wage loss, and damages for past and future pain and suffering. The elder can be awarded punitive damages if the misconduct is severe enough.

In cases where the elder has died, the plaintiff survivors are entitled to recover all of the damages discussed above, 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.

5. What are the “enhanced remedies” under the elder abuse statutes?

Plaintiffs in elder abuse cases are entitled to recover monetary damage for pain and suffering, even if the elder dies before the trial, whereas in other personal injury cases where the right to recover damages for pain and suffering dies with the plaintiff. In addition, if the plaintiff prevails he or she is entitled to recover attorneys' fees. This may be particularly significant.

6. Where can elder abuse occur?

Elder abuse can occur in any setting, but most cases occur in nursing homes or skilled nursing facilities which are understaffed and consist of staff that exist are poorly trained.

7. What is physical abuse under the Elder Abuse and Dependent Adult Civil Protection Act?

Physical abuse is the easiest type of abuse under EADACPA to identify and includes 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.

8. Neglect is also abuse under the Elder Abuse and Dependent Adult Civil Protection Act?

Neglect is the most prevalent form of abuse under EADACPA and includes a failure to act reasonably in the care of an elder or dependent adult. Neglect may include failure to assist in personal hygiene and the failure to provide food, clothing and shelter or the failure to prevent malnutrition or dehydration.

9. What does the jury have to decide in an elder abuse case?

The Elder Abuse laws have special remedies that a jury may award in an elder abuse case. The plaintiff must prove by clear and convincing evidence that the defendant is liable for physical abuse, neglect or fiduciary abuse and that the defendant is guilty of recklessness, oppression, fraud or malice.

10. Investigation is crucial in litigating elder abuse cases

It is crucial that any attorney complete a thorough investigation in California elder abuse cases, particularly cases against California nursing homes. The investigation should include obtaining evidence of the actual abuse by reviewing medical records, with expert review and through the discovery process. In addition, the investigation may reveal other patients at the facility both during the time that plaintiff was in a nursing home and before that also suffered abuse. Further, a thorough investigation usually reveals statutory violations by nursing homes that have been violated and usually has been cited for violations to the plaintiff and other patients and whether the nursing home took corrective action.

11. Is an attorney necessary for an elder abuse case?

Yes. California elder abuse cases are very complex and involve complicated legal, factual and damage issues. They are very expensive to litigate and insurance companies have unlimited resources and attorneys to fight plaintiff’s every step of the way. However, if you win you will be awarded attorney's fees.

The above is an attempt to simplify complex legal issues in clear and concise answers. The responses should not constitute a guarantee. In addition, the discussion above may not be complete or fully accurate.

Please contact an attorney or lawyer who handles California nursing home negligence and elder abuse cases at Young and Wallin to answer any questions you may have.

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