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 FAQ - NURSING HOME NEGLIGENCE
1. What is Elder Abuse?
Elder abuse law in California largely focuses on the "Elder Abuse and Dependent Adult Civil Protection Act (EADACPA)". 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."
2. 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. Therefore, while in a hospital of almost any kind, an otherwise young, healthy adult is entitled to protection under the Elder Abuse laws.
3. Who can bring an elder abuse lawsuit?
The following people can bring an action for elder abuse: an elder or dependent individual who is living; 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 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.
5. 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.
6. 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 that are understaffed, and the staff that exist are poorly trained.
7. What does a plaintiff have to prove to win an elder abuse case?
To be entitled to the special remedies 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 has been guilty of recklessness, oppression, fraud and malice in commission of the abuse.
8. What are the enhanced remedies under 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 Nursing Home Abuse 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 attorneys' fee award can be higher than the actual damage awarded to the plaintiffs.
9. 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.
10. 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.
11. 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's fees.
12. Will my elder abuse case settle out of court?
Probably. A high percentage of elder abuse cases settle at some time before trial.
The information contained in the Chain-Younger Web Site is general in nature and is not intended as a substitute for legal advice. In addition, an
Attorney-Client relationship is not created by viewing this information.
Changes in the law or the specific facts of your case may result in legal
interpretations that are different from those presented. To protect your
legal rights following severe injury or wrongful death resulting from an
accident, it is wise to immediately consult Chain-Younger.
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