Health Care -

California

I. Civil Statute: Elder Abuse and Dependent Adult Civil Protection Act, California Welfare and Institutions Code § 15600 et seq.
A. Conduct
1. Abuse
(a) Definition
(1) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; or
(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
(b) Abandonment: “[T]he desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.” Welf. & Inst. Code § 15610.05.
(c) Abduction: “[T]he removal from this state and the restraint from returning to this state, or the restraint from returning to this state, of any elder or dependent adult who does not have the capacity to consent to the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, as well as the removal from this state or the restraint from returning to this state, of any conservatee without the consent of the conservator or the court.” Welf. & Inst. Code § 15610.06.
(d) Goods or services necessary to avoid physical harm or mental suffering: Includes the provision of medical care for physical and mental health needs, assistance in personal hygiene, adequate clothing, adequately heated and ventilated shelter, protection from health and safety hazards, protection from malnutrition, transportation and assistance necessary to secure any of these needs. Welf. & Inst. Code § 15610.35.
(e) Financial abuse: Occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both;
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both; or
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence.
(f) Isolation:
(4) Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls;
(5) Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons;
(6) False imprisonment; or
(7) Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.
(g) Physical abuse: Includes assault [with a deadly weapon or force likely to produce great bodily injury], battery, unreasonable physical constraint, or prolonged or continual deprivation of food or water, sexual assault, use of a physical or chemical restraint or psychotropic medication for punishment, for a period beyond that prescribed or for any purpose not authorized by a physician or surgeon. Welf. & Inst. Code § 15610.63.
2. Neglect
(a) Definition
(i) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise; or
(ii) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.
B. Vulnerable Adults
1. Dependent Adult: “[A]ny person between the ages of 18 and 64 years who resides in this state 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.” This includes “any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility….” Welf. & Inst. Code § 15610.23.
2. Elder: “[A]ny person residing in this state, 65 years of age or older.” Welf. & Inst. Code § 15610.27.
C. Persons/Entities Excluded from Statute
Health practitioners “who assume care or custody of the elderly are subject to liability if their misconduct rises to the level of neglect, abuse, or abandonment.” Mack v. Soung, (2000) 80 Cal.App.4th 966, 975.
A “health practitioner” includes “a physician and surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, registered nurse, dental hygienist, licensed clinical social worker or associate clinical social worker, marriage and family therapist, licensed professional clinical counselor, or any other person who is currently licensed under Division 2 (commencing with Section 500) of the Business and Professions Code, any emergency medical technician I or II, paramedic, or person certified pursuant to Division 2.5 (commencing with Section 1797) of the Health and Safety Code, a psychological assistant registered pursuant to Section 2913 of the Business and Professions Code, a marriage and family therapist trainee, as defined in subdivision (c) of Section 4980.03 of the Business and Professions Code, an unlicensed marriage and family therapist intern registered under Section 4980.44 of the Business and Professions Code, a clinical counselor trainee, as defined in subdivision (g) of Section 4999.12 of the Business and Professions Code, a clinical counselor intern registered under Section 4999.42 of the Business and Professions Code, a state or county public health or social service employee who treats an elder or a dependent adult for any condition, or a coroner.” Welf. & Inst. Code § 15610.37.
D. Reporting Requirements
There is no requirement that a person serve notice and a copy of the Summons and Complaint to the state at or before the time of filing the civil action.
However, any mandated reporter must report known or suspected cases of elder abuse and neglect. Reports may be made to adult protective services agencies, local law enforcement agencies, the Long-Term Care Ombudsman’s Office, the Licensing and Certification Program of the California DHS or the Attorney General’s office.
A “mandated reporter” includes any person who has assumed responsibility for the care or custody of an elder or dependent adult (i.e. administrators, supervisors and/or licensed staff), health practitioners, care custodians, clergy members and employees of county adult protective services agencies and local law enforcement agencies
E. Preclusion of Arbitration
An injured party and/or decedent’s Elder Abuse and Dependent Civil Protection Act claim and/or cause of action may appropriately be resolved through arbitration. See Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1409 n.3; Hogan v. Country Villa Health Services, (2007) 148 Cal.App.4th 259, 263-69.
F. Relationship to Medical Malpractice Actions
The Elder Abuse and Dependent Civil Protection Act excludes liability for acts of professional negligence, thus not applying to simple or gross negligence by healthcare providers. Welf. & Inst. Code § 15657.2; Sababin v. Superior Court, (2006) 144 Cal.App.4th 81, 88. An act or acts of medical negligence, however, may provide a basis for an Elder Abuse and Dependent Civil Protection Act action if it can be proven by clear and convincing evidence that the medical professional acted with recklessness.
G. Criminal Provision
Any person who knows or reasonably should know that a person is an elder or dependent adult and, under circumstances or conditions likely to produce great bodily harm or death, (1) willfully causes or permits any elder or dependent adult to suffer, be injured or to be placed in a situation where the person’s health or person is endangered, or (2) inflicts unjustifiable physical pain or mental suffering upon the adult is punishable by imprisonment in county jail for up to one year, or in state prison for two, three or four years. Welf. & Inst. Code § 15656(a) (emphasis added).
Any person who knows or reasonably should know that a person is an elder or dependent adult and, under circumstances or conditions other than those likely to produce great bodily harm or death, (1) willfully causes or permits any elder or dependent adult to suffer, be injured or to be placed in a situation where the person’s health or person is endangered, or (2) inflicts unjustifiable physical pain or mental suffering upon the adult is guilty of a misdemeanor. Welf. & Inst. Code § 15656(b) (emphasis added).
Any caretaker of an elder or dependent adult who violates any provision of law prescribing theft or embezzlement as to the property of the adult is punishable by imprisonment in county jail for up to one year, or in state prison for two, three, or four years when the value of the violation exceeds $950. If the value is lower than $950, then the caretaker is punishable by a fine of up to $1,000, or by imprisonment in county jail for up to on year. Welf. & Inst. Code § 15656(c) (emphasis added).
H. Statute of Limitations
Four years for an action for financial abuse. Welf. & Inst. Code § 15657.7.
Two years for an action for physical abuse. The statute of limitations for assault, battery or injury to or death of another individual, caused by the wrongful act or neglect of another is two years. Code of Civil Procedure § 335.1.
I. Burden of Proof
Clear and convincing evidence that defendant is guilty of something more than negligence, i.e. recklessness, oppression, fraud or malice. Welf. & Inst. Code § 15657; Sabatin v. Superior Court, (2006) 144 Cal.App.4th 81, 88.
Preponderance of the evidence for financial abuse. Welf. & Inst. Code § 15657.5.
J. Can Regulations Establish Standard of Care?
Yes.
A negligence per se instruction is appropriate in an elder abuse case premised on neglect. See Norman v. Life Care Centers of America, Inc., (2003) 107 Cal.App.4th 1233, 1248 (citing Welf. & Inst. Code § 15610.57(a)(1)).
A court may use the regulations “to assist the jury in determining whether defendants’ conduct involved physical abuse or neglect, or recklessness, oppression, fraud, or malice within the meaning of the Elder Abuse Act.” In re Conservatorship of Gregory, (2000) 80 Cal.App.4th 514, 523.
II. DAMAGES
A. Damages Available
1. Actual damages;
2. Special damages;
3. Punitive damages;
4. Attachment;
5. Protective orders in the form of restraining orders and/or injunctive relief;
6. Costs of suit;
7. Attorneys’ fees (in specified instances).
B. Does Pain and Suffering of Decedent/Resident Survive Death?
Maybe. If it is proven by clear and convincing evidence that the defendant was guilty of recklessness, oppression, fraud or malice in the commission of abuse, neglect or financial abuse, then the limitation on recovery for pain and suffering where the decedent/resident dies before judgment does not apply. However, the noneconomic damages are capped at $250,000.
C. Attorneys’ Fees Available?
Yes, if it has been proven by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud or malice. Welf. & Inst. Code § 15657(a).
Yes, if it has been proven by clear and convincing evidence that the defendant is liable for abduction. Welf. & Inst. Code § 15657.05.
Yes, if it has been proven by a preponderance of the evidence that a defendant is liable for financial abuse. Welf. & Inst. Code § 15657.5.
If the employer is the sole defendant, then the burden is clear and convincing evidence for recovery of attorneys’ fees.
III. LEGISLATION AFFECTING STATUTE
A. Pending:
Yes.
2013 California Assembly Bill No. 140, California 2013-2014 Regular Session (July 2, 2013): This amendment would create Section 15610.70, to supplement the common law definition of “undue influence” to mean the “excessive persuasion that causes another person to act or refrain from acting and results in inequity.” Factors in determining undue influence would include the vulnerability of the victim, the influencer’s apparent authority, the influencer’s actions or tactics and the equity of the result. In doing so, the definition of “Financial Abuse” in Section 15610.30 would be modified to reflect the new definition of “undue influence.”
2013 California Assembly Bill No. 383, California 2013-2014 Regular Session (July 10, 2013): This amendment makes non-substantive changes to Sections 15630 and 15650, including various grammatical and other technical changes.
2013 California Assembly Bill No. 477, California 2013-2014 Regular Session (May 6, 2013): This amendment would affect Sections 15630.1, 15632, 15633, 15634, 15637, 15640 and 15655.5. The amendment would include a notary public in the “mandated reporter” definition, as well as prohibit a notary public from performing a notarial act for an elder or dependent adult in certain circumstances. These new mandated reporters would, like the current list, be immunized from liability for the required, authorized reports. The amendment would also subject a mandated reporter to civil penalties should the mandated reporter fail to report suspected financial abuse. The penalties would be payable to the party bringing the action. The amendment would also exempt financial officers from the notary public provisions. Lastly, the amendment would revise the attorney-client privilege provision to provide the privilege for information protected by the attorney-client privilege.
B. Anticipated: None.

[1]  Welf. & Inst. Code § 15610.07.

[1]  Welf. & Inst. Code § 15610.30.

[1]  Welf. & Inst. Code § 15610.43.

[1]  Welf. & Inst. Code § 15610.57.