April 7, 2024 | Article by Matt Clark Social Share
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.
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.
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.
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; and failure to prevent malnutrition or dehydration.
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.
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.
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 Elder 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.
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 that would have been provided to them by the elder. Further, plaintiffs are entitled to attorneys’ fees.
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 the 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, whether the nursing home had been cited for violations to the plaintiff and other patients, and whether the nursing home took corrective action.
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.
Will my elder abuse case settle out of court?
Probably. A high percentage of elder abuse cases settle at some time before trial.
What are the warning signs of elder abuse and elder neglect?
Unfortunately, elder abuse can take place at any time, and it can happen to anyone, and that’s why it is important to be aware of it. Here are a few warning signs, courtesy of the National Center on Elder Abuse, to keep a watchful eye:
- Unexplained bruises or welts on their body.
- Loved ones becoming isolated or not allowed to contact family.
- Caregiver is overly controlling or verbally abusive.
- Bruises around pelvic and genitalia areas, or unexplained sexually transmitted diseases.
- Sudden changes in loved one’s finances.
- Ulcers from not being moved around properly, malnutrition, and lack of basic hygiene.
- Unexplained withdrawal from normal activities, a sudden change in alertness, and unusual depression may be indicators of emotional abuse.
- Bedsores, unattended medical needs, poor hygiene, and unusual weight loss.
- Behavior such as belittling, threats, and other uses of power and control by spouses are indicators of verbal or emotional abuse.
- Strained or tense relationships, frequent arguments between the caregiver and elderly person.
If you notice changes in a senior’s personality or behavior, you should start to question what is going on. It’s important to alert others if you have suspicions and to retain an attorney.
Does your firm hire experts for my case?
Yes. As part of almost every elder abuse and neglect case, experts are an integral piece of the case. Chain | Cohn | Stiles regularly employs experts from throughout the United States. These experts are all recognized as leading authorities in their fields. We understand that retaining the right experts is often a key to our clients’ success. In almost every instance, it is important to retain experts, and conduct inspections, as soon as possible. With this in mind, please contact us to discuss your case as soon as practically possible after you have been injured.
I live outside Kern County. Will you take my case?
Yes. Chain | Cohn | Stiles regularly takes cases outside of Kern County, California. Given our expertise in handling elder abuse and neglect cases, we are often contacted by families of victims from throughout California. In addition, we regularly employ experts from all over the State of California and the United States.
