The elderly and dependant adults are often subject to cruel neglect because they are either unable to speak up in their own defense or no one listens when they do. Nursing homes are subject to general Negligence and Medical Malpractice, and Premises Liability laws. They are also subject to laws designed specifically to protect the elderly and the dependent adult.
Who Is Protected?
These laws protect those who are 65 years of age or older or a dependant adult. A dependant adult is defined as any person between the ages of 18 and 64 years who resides in California and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age. A dependant adult is also any person between the ages of 18 and 64 years of age who is admitted as an inpatient to a 24 hour health facility as defined in §1250, 1250.2, and 1250.3 of the Health and Safety Code.
What Constitutes Abuse?
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 suffering.
Neglect 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 to Medical Malpractice. The attorneys at Cheong, Denove, Rowell & Bennett have authored articles and have lectured on the subject.