NURSING HOME ELDER ABUSE

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NURSING HOME ELDER ABUSE
NURSING HOME ELDER ABUSE

WHAT IS ELDER ABUSE?

Elder abuse is a problem plaguing older Americans. The National Center on Elder Abuse estimates that between 1 million and 2 million Americans age 65 and older have been victims of elder abuse. Because many incidents go unreported, the numbers are probably much higher. A 1986 study found that residents of nursing homes were being abused and neglected; in response to this study, Congress passed the Nursing Home Reform Act of 1987.

Reports show that by 2020, California’s elderly population will be double what it was in 1990. To address this problem, the California legislature has followed Congress’ lead and passed the 1992 Elder Abuse and Dependant Adults Civil Protection Act (EADACPA).

California Welfare and Institutions Code, Section 15610.07 defines “elder abuse” as “physical abuse, neglect, financial abuse, abandonment, isolation, abduction,” or other treatment with resulting physical harm or pain or mental suffering, or as the “deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” In California, an “elder” is a person who is 65 years of age or older.

RESIDENTS BILL OF RIGHTS

Among the provisions of both the Nursing Home Reform Act and the EADACPA is the Residents Bill of Rights. Codified in the California Health and Safety Code, Section 1771.7(b), the Residents Bill of Rights provides that all residents in residential living units (such as nursing homes) shall have all of the following rights:

  • To live in an attractive, safe, and well maintained physical environment.
  • To live in an environment that enhances personal dignity, maintains independence, and encourages self-determination.
  • To participate in activities that meet individual physical, intellectual, social, and spiritual needs.
  • To expect effective channels of communication between residents and staff, and between residents and the administration or provider’s governing body.
  • To receive a clear and complete written contract that establishes the mutual rights and obligations of the resident and the continuing care retirement community.
  • To maintain and establish ties to the local community.
  • To organize and participate freely in the operation of resident associations.

If any of these rights has been violated, it is important that you consult an elder law attorney as soon as possible.

RECOGNIZING ELDER ABUSE

It is important to know the signs of elder abuse, so you can recognize it if it happens to somebody you know. Most elder abuse falls into four categories—physical abuse, neglect, behavioral abuse, and relational abuse.

Indications of physical abuse include bruises, scratches, unexplained vaginal or anal bleeding, torn or stained and bloody under clothing, and unnecessary physical restraints. You should also be on the lookout for indications of over-medication—for example: drowsiness, cracked lips, drooling or a vacant stare.

Neglect can be spotted by poor hygiene, dirty fingernails, signs of feces or smells of urine, unexplained weight loss, and bedsores. Especially be on the lookout for neglect when the residence is having staffing problems. Nursing homes with inadequately trained or inexperienced staff and ones with high staff turnover are good candidates for neglect. In Norman v. Life Care Centers of America, Inc., the California Court of Appeal found that a violation by a nursing home of its duties of under California law would constitute “neglect” under Elder Abuse and Dependent Adult Civil Protection Act.

Behavioral abuse can be subtle. Indicators include: unwarranted fear, a sense of helplessness, unexplained anger, withdrawal or unwillingness to talk openly, a general confusion, depression, anxiety or agitation and non-responsiveness.

The last category is relational abuse. Be suspicious if the care provider continually speaks for the resident and does not let him speak for himself, or if the care provider restricts the resident’s activities or contacts with the outside, or does not allow the resident to be alone with anyone.

Remember that these lists are merely examples of what to look for. If you see any of these indicators or some other suspicious activity, contact an elder abuse attorney who can help determine the extent of the problem and help you resolve the problem.

REMEDIES

Section 15657 of the California Welfare and Institutions Code provides for enhanced damages when the defendant is proven liable for physical abuse “by clear and convincing evidence” and has used “recklessness, oppression, fraud, or malice” when committing the abuse. Furthermore, the California cap for damages recoverable by a decedent does not apply, so personal representatives or successors can also recover pain and suffering damages.

However, the law in this area is not settled. In a recent California case, the heir of a resident who died at a nursing home was not entitled to the enhanced remedies because the Elder Abuse Act is “intended to protect elders…who were victims of abuse, not their heirs.” Quiroz v. Seventh Avenue Center 140 Cal.App.4th 1256, 45 Cal.Rptr.3d 222, Cal.App. 6 Dist.,2006.

In some cases, punitive damages may be awarded. In Covenant Care, Inc. v. Superior Court 32 Cal.4th 771, 86 P.3d 290 Cal.,2004., the California Supreme Court held that prerequisites for punitive damages required in professional negligence cases do not apply to elder abuse cases, stating:

As used in the Elder Abuse and Dependent Adult Civil Protection 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; the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care.

Before this decision, defendants would argue that causes of action against health care providers must comply with California Code of Civil Procedure, Section 425.13. This section requires a plaintiff to obtain a court order authorizing punitive damages before filing a claim for punitive damages against a health care provider.

Covenant Care made it clear this hurdle is not required in elder abuse case and took away a litigation tactic from defendants who engage in elder abuse. Affirming Covenant Care,  In re Conservatorship of Kayle 134 Cal.App.4th 1, 35 Cal.Rptr.3d 671 Cal.App. 2 Dist., 2005 held that “with necessary proof, plaintiffs may also recover punitive damages.”

A victim of elder abuse may also get a protective order from the court under Section 15657.03. Among the restraining orders available are orders enjoining a party from:

  • Abusing, intimidating, molesting, attacking, striking, stalking, or threatening the victim;
  • Sexually assaulting, battering, or harassing the victim; and
  • Telephoning, contacting, coming within a specified distance of, or disturbing the peace of the victim.

Other orders are also available if the court determines the order is necessary to protect the victim.

Also, section 15657.3 provides that if the victim dies before the lawsuit ends, the court does not lose jurisdiction. Therefore the suit can be maintained by the “personal representative” of the victim or whoever is “entitled to succeed to the decedent’s estate.”

WHAT TO DO IF YOU EXPECT ELDER ABUSE

If you suspect elder abuse, you should waste no time taking action. Report physical abuse immediately to law enforcement by calling “911” or Adult Protective Services in Los Angeles County by calling 1(877) 4-R-SENIORS. If you suspect elder abuse that is not physical abuse, such as financial abuse of an elder, you can also report that to Adult Protective Services. If you are outside California, you can find the appropriate hotline as well as further information at the National Center on Elder Abuse. To go to their web site, click the following link: http://www.elderabusecenter.org/default.cfm?p=statehotlines.cfm#ca

After you have reported the suspected abuse, or if you are unsure whether a particular situation is, in fact, elder abuse, you should contact an experienced elder abuse attorney who can answer your questions and protect your rights or those of a loved one.

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