This page details what you should do if you find out that an elderly loved one of yours is being abused in a care facility. Sadly, elder abuse is extremely common. If your parent or grandparent is suffering from neglect, physical abuse, exploitation, or sexual abuse at the hands of a caretaker please read this page for more information. We hope that it provides hope for seriously injured people. This page covers the following:
- Definition of elder abuse
- Definition of neglect
- Warning signs of elder abuse
- Mandatory reporting
- Who is liable for this type of abuse?
- What can your loved one recover in a lawsuit?
- Abuse led to the death of the victim
- How long do you have to file your claim?
- How much does an elder abuse lawyer cost?
Definition of Elder Abuse
(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (3) Financial abuse…. California Welfare and Institutions Code § 15610.07
This law clearly makes it unlawful to deprive a senior of care, food, medicine, or any other necessary care at a senior citizen care facility. It is also illegal to abandon, even temporarily, a senior citizen. Not only is it a tort to commit elder abuse, but the abuser may go to jail and be fined. CA Penal Code § 368.
Definition of Neglect
Neglect is especially common at elder care facilities. Neglect includes, but is not limited too, the following:
(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration…. CA Welfare & Institutions Code § 15610.57(b)
If your loved one was abused in a nursing facility, we highly recommend that you review our nursing home abuse page for more detailed information. The California State Bar has also put out an elder abuse pamphlet.
Warning Signs of Elder Abuse
- Bruises, bedsores, strange bandages, pressure marks, broken bones, skin tears, abrasions, and burns
- Changes in behavior such as withdrawal from usual activities, hyper-alertness, and strange depression
- The caregiver will not leave the room while you visit
- Sudden change in finances or strange questions about social security payments
- Poor hygiene or unexplainable weight changes (primarily loss)
- Insults, threats, or manipulation by spouses
- Tense relationships between the resident and their caregivers.
All staff members at long term care facilities are mandatory reporters. This law requires any person who has assumed responsibility for the care or custody of an elder to report actual or suspected abuse to a local law enforcement agency, an adult protective services agency, Bureau of Medi–Cal Fraud, or the Department of Consumer Affairs. The failure to file such a report is a misdemeanor. A person who files a report enjoys absolute immunity from any type of liability.
Who is Liable for Elder Abuse?
In most cases involving elder abuse, the abuse is carried out by a caretaker at a care facility. Liability is determined under the negligence standard. If a caretaker, nurse, staff member, or administrator abuses a resident, the facility may be liable for the damages. This is a form of strict liability. The employer is responsible for the employee’s bad behavior (whether negligent or intentional) notwithstanding the exercise of due care in hiring the employee or supervising his or her conduct.
What Can Victims Recover in a Lawsuit?
Victims of elder abuse can recover monetary damages for pain and suffering. This is the emotional distress caused by the abuse or neglect. The victim may also recover general damages for humiliation and loss of enjoyment of life. Obviously, the victim may also recover medical expenses, future medical expenses, and loss of earnings (in the unlikely scenario where the elder was earning a wage). If money was stolen from the victim, the money may be recovered.
Elder abuse victims may also win their attorney’s fees. This statute is powerful settlement leverage. Many elder abuse claims have small damages due to the victim usually being retired, so California lawmakers incentivized lawyers to take on these cases by adding the attorney fee provision. Finally, in certain situations the victim may recover punitive damages.
Abuse Led to the Death of the Victim
An action under the Elder Abuse and Dependent Adult Civil Protection Act may be brought following the elder’s death by the decedent’s personal representative or heir. Welfare & Institutions Code § 15657.3(d)(1). This would be a type of wrongful death action. In a survival action for elder abuse of a senior citizen in which you prove by clear and convincing evidence that the care facility acted with recklessness, oppression, fraud, or malice in perpetrating the abuse, pain and suffering damages are recoverable even though the victim died. However, these post-death pain and suffering damages in the survival action cannot exceed $250,000.
Statue of Limitations
The statute of limitations is two years for an elder abuse claim. CA CCP § 335.1. But do not rely on this alone! The statute of limitations is often complicated, and we highly recommend that you contact a elder abuse lawyer as soon as possible to get a definitive legal opinion regarding the time limit for your case.
How Much Does an Elder Abuse Lawyer Cost?
Most San Diego personal injury lawyers provide potential clients with free consultations. Our office is no exception. Call our attorney to learn more about your legal rights with no obligation.
If our attorney agrees to represent you, he will take your case on a contingency fee. That means he does not charge you by the hour. He will get paid a percentage of what he recovers for you. This means there are no out of pocket expenses to hire legal counsel.