Page Title

WHY PLAINTIFFS PREFER PLEADING ELDER ABUSE TO MEDICAL
MALPRACTICE
(Reprinted from Contra Costa Lawyer)

   The classic elder abuse case involves an aged plaintiff permanently residing in a
long-term care facility. The plaintiff is being cared for by nurses or by aides who are
not required to be licensed, and it is fairly clear that the action is distinct from
medical malpractice. But there are other cases that involve patients in hospitals or
in transition from hospitals to home by way of skilled nursing facilities. When those
patients develop pressure ulcers or other signs of abuse or neglect, the lines
between a cause of action for elder abuse and one for professional negligence are
far less clear, sometimes permitting the use of an elder abuse theory over an
inferior medical malpractice one.

   1.        Why it matters.

   Causes of action for medical malpractice are governed by the Medical Injury
Compensation Reform Act of 1975 (“MICRA”). Claims for medical malpractice are
subject to a $250,000 cap on non-economic damages (Civ. C. § 3333.2); the
collateral source rule is abrogated in such actions (Civ. C. § 3333.1); attorney’s
fees on recoveries of over $100,000 are lower than those customarily charged in
ordinary negligence cases (Bus. & Prof. C. § 6146); future damages of over
$50,000 must be paid out over time, at the election of the defendant (CCP § 667.7);
and heavy procedural barriers are placed on alleging punitive damages. CCP §
425.13.

   None of these restrictions applies in a cause of action for elder abuse. Further,
there is also the possibility for heightened remedies, including an award of attorney’
s fees and up to $250,000 in damages for pain and suffering for a plaintiff who dies
before trial, if the plaintiff can prove by clear and convincing evidence that the
defendant has been guilty of recklessness, oppression, fraud, or malice in the
commission of elder abuse. Welf. & Inst. C. § 15657.

   2.        But isn’t an elder abuse cause of action available in only a small
number of cases?

   A cause of action for elder abuse is available in more cases than one might
think. The term “elder abuse,” while a useful shorthand way of describing this cause
of action, is actually misleading. The Elder Abuse Act applies to more than just
elders and more than just intentional or reckless abuse. The Act also protects
“dependents,” (see Welf. & Inst. C. § 15600) defined, in part, as “any 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. . . .” Welf. & Inst. C. § 15610.23.

   More importantly, the Elder Abuse Act also provides a cause of action even if the
plaintiff cannot prove the defendant culpable of more than simple negligence. While
the common perception may be that there simply is no cause of action for elder
abuse unless the plaintiff can prove the defendant is guilty of recklessness,
oppression, fraud, or malice, current legal interpretation of the Elder Abuse Act is
that a cause of action may be stated simply for elder “neglect” as well. It is only if
the plaintiff seeks the heightened remedy of attorneys’ fees or is the successor of a
person who died and seeks pain and suffering damages that a greater degree of
culpability must be proved. Cf. CACI 3103 and 3104.

   Welfare and Institutions Code section 15610.57 defines “neglect” as 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.” “Neglect” includes the failure to do the following: assist in
personal hygiene, or in the provision of food, clothing, or shelter; provide medical
care for physical and mental health needs; protect from health and safety hazards;
or prevent malnutrition or dehydration. Ibid.

   3.        Where we are headed.

   Several recent cases indicate the trends in this area of the law.

   In Delaney v. Baker (1999) 20 Cal.4th 23, the California Supreme Court held that
a health care provider who is guilty of recklessness, oppression, fraud, or malice in
committing elder abuse is subject to the heightened remedies provided by Welfare
and Institutions Code section 15657 notwithstanding Welfare & Institutions Code
section 15657.2, which essentially provides that claims against health care
providers based upon professional negligence remain subject to MICRA. Thus,
Delaney holds that a licensed healthcare provider is as subject to the Elder Abuse
Act as an unlicensed person is..

   In Covenant Care, Inc. v. Sup. Ct. (2004) 32 Cal.4th 771, the court held that the
procedural restrictions of CCP section 425.13 do not apply to an action for elder
abuse in which the plaintiff seeks punitive damages.

   In doing so, the court used language helpful to plaintiffs’ attorneys seeking to
distinguish claims of elder neglect from those for medical malpractice. It stated,
quoting in large part from Delaney,

           “‘neglect’ within the meaning of Welfare and Institutions Code section
15610.57 covers an area of misconduct distinct from ‘professional negligence.’ As
used in the Act, neglect refers not to the substandard performance of medical
services but, rather, to the ‘failure of those responsible for attending to the basic
needs and comforts of elderly or dependent adults, regardless of their professional
standing, to carry out their custodial obligations.’ . . .   Thus, the statutory definition of
‘neglect’ speaks not of the undertaking of medical services, but of the failure to
provide medical care.” Covenant Care, supra, 32 Cal.4th at 783.

   The court further said, “‘the fact that some health care institutions, such as nursing
homes, perform custodial functions and provide professional medical care’ . . .
does not mean that the two functions are the same.” Covenant Care, supra, 32 Cal.
4th at 786.

   Finally, the court expressly left open the exact boundaries of a cause of action for
elder neglect (Covenant Care, supra, 32 Cal.4th at 789, n.10), citing Norman v. Life
Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233. In Norman, the court
held that it was error for the trial court not to have instructed the jury on negligence
per se in an action for elder abuse in which plaintiff introduced evidence that the
skilled nursing facility had been found by the Department of Health Services to have
violated certain provisions of the California Code of Regulations.
   Some attorneys are reading Covenant Care as implying that a cause of action for
elder abuse should be subject to the restrictions of MICRA only when there is an
explicit statutory statement to that effect. They then argue this means the MICRA
cap of $250,000 on non-economic damages does not apply to a cause of action for
elder neglect by a living plaintiff.
   In Benun v. Sup. Ct. (2005) 123 Cal.App.4th 113, the court reached the
significant decision that a cause of action for elder abuse is governed by the two-
year statute of limitations under CCP section 335.1, rather than the one year from
date-of-discovery rule of CCP section 340.5. Under the two-year rule, an action is
tolled while an elder is insane (for instance, if she has dementia), which extends the
statute of limitations even further. (See also Smith v. Ben Bennett, Inc. (2005) 133
Cal.App.4th 1507, 1522-23, holding that the 90-day tolling available under CCP §
364 for a cause of action for professional negligence is not available for a cause of
action for elder abuse.)

   4.        Conclusion.

    The exact outer boundaries of the Elder Abuse Act and the impact of that Act on
MICRA are still being determined. Because of the advantages of a cause of action
for elder abuse over a cause of action for professional negligence, plaintiff’s
attorneys will continue to allege elder abuse or neglect where possible.

1   (CCP § 425.13 was not actually adopted as part of MICRA, but only later, in
1987.)

2 Because the plaintiff in Benun pled true elder abuse rather than merely elder
neglect, it is not necessarily established yet that a cause of action for the latter is
also subject to the longer two-year statute. Furthermore, because it was not
explicitly foreclosed in Benun, there is the possibility that a cause of action for elder
abuse or neglect could be subject to the three-year statute of limitations under CCP
section 338(a) for an action “upon a liability created by statute.”