Abuse of an elder or
dependant adult means physical abuse, neglect, financial
abuse, abandonment, isolation, abduction, or other treatment
with resulting physical harm or pain or mental suffering. It
also includes deprivation by a care custodian of goods or
services that are necessary to avoid physical harm or mental
includes but is not limited to failure to assist in personal
hygiene, or the provision of food, clothing or shelter;
failure to provide medical care; failure to protect from
health and safety hazards; failure to prevent malnutrition
or dehydration. A frequent result of neglect is the
formation of decubitus ulcers or pressure sores. These
ulcers left untreated can result in the need for amputation.
Federal regulation requires
that a nursing home resident be seen by a physician at least
once every thirty days for the first ninety days and once
every sixty days thereafter. Even if the physician is
skilled and caring, the potential for serious injury and
death from neglect between physician visits always exists.
Financial abuse of an elder
or dependant adult is also prohibited. Financial abuse
occurs when a person or entity takes, secretes,
appropriates, or retains real or personal property to a
wrongful use or with intent to defraud. Persons who assist
in such financial abuse can also be held responsible for the
damage they cause.
Damages that are
recoverable include damages applicable to most negligent
actions: medical expenses, loss of earnings and pain and
suffering. If the facility has been found to have acted
recklessly attorney fees are recoverable. Attorney fees are
also recoverable if the facility is found to have committed
physical abuse or neglect, and was guilty of recklessness,
oppression, fraud or malice.
In all tort actions in
California there can be no recovery for pain and suffering
damages if the victim passes away before the case is settled
or tried. In cases involving an elder or dependant adult
pain and suffering survives the death of the victim if the
jury finds that the facility acted recklessly, or with
oppression, malice or fraud when it physically abused or
neglected the plaintiff. Punitive damages may also be
requested if the defendant is found to have acted with
malice, oppression or fraud.
An attorney who represents a
client in a case against a nursing home must have a good
understanding of not only medicine, but the laws applicable
The attorneys at Cheong, Denove, Rowell & Bennett have
authored articles and have lectured on the subject.
Denove, Rowell & Bennett
has the extensive resources to handle the most complex legal
matters, yet is small enough to offer individualized service to
Denove, Rowell & Bennett we believe the more you know,
the better choice you will make.