There are few topics in contemporary tort litigation that have received as much recent attention as elder abuse liability. Several factors may contribute to the growth of elder abuse litigation, including the age of the post-war baby boom generation, advances in medical science, and an increased societal awareness of standard of care issues pertaining to the care of the aging. Litigation of tort cases within this field, generically referred to as elder abuse litigation, is the subject of this chapter.
It must be borne in mind that the term “elder abuse” has no fixed meaning. It may refer to injuries sustained due to negligent treatment in a nursing home, or may describe “fiduciary abuse” in the sense of actions undertaken to deprive elderly persons of their property. Obviously, the interrogatory discovery that is undertaken in either the prosecution or defense of an “elder abuse” case will differ depending on the basis of liability raised by the facts in each case.
In recognition of the foregoing, regulatory authorities as well as State Legislatures have adopted definitional categories for different forms of elder abuse. A notable example is California’s Elder Abuse Act, which is set forth in California Welfare & Institutions Code section 15657, et seq. The Act divides actionable “elder abuse” into three categories, including (1) physical abuse (Welfare & Institutions Code § 15610.63); (2) neglect (Welfare & Institutions Code § 15610.57); and (3) financial abuse (Welfare & Institutions Code § 15610.30). Because the California Elder Abuse Act provides a workable conceptual model for analyzing elder abuse cases, the foregoing categories provide the organizational structure for this chapter.
Since each of the foregoing three types of actionable elder abuse involves its own specific elements, each type is analyzed separately in the pages that follow.
- Elements of Plaintiff’s Elder Abuse Cause of Action – Physical Abuse – Elder abuse based upon physical abuse generally involves intentionally tortious conduct directed towards the elder. A workable listing of categories of actionable “physical abuse” is set forth in section 15610.63 of the California Elder Abuse Act.
In general terms, the Act defines as actionable physical abuse the following:
- Assault and/or battery, as those terms are defined in the California Penal Code;
- Sexual assault, defined to include a variety of sexual assault offenses as defined in the California Penal Code;
- Prolonged deprivation of food or water;
- The use of physical or chemical restraint, or psychotropic medication
- For punishment;
- For a period beyond that for which the medication was ordered by a license physician; or
- For any purpose not authorized by the licensed physician.
In cases based upon any of the foregoing intentional torts committed against the elder, a successful plaintiff is entitled to the full range of tort remedies, including compensatory general and special damages, as well as punitive damages in an appropriate case.
- Elements of Plaintiff’s Cause of Action – Neglect – The second group of elder abuse claims is generically described to include claims involving “neglect.” California Welfare & Institutions Code section 15610.57 provides workable definitions for neglect claims, and defines neglect to include the negligent failure of any person having the care or custody of an elder to exercise that degree of care that a reasonable person would exercise in like circumstances. The section goes on to further define “neglect” to include:
- The failure to assist in personal hygiene, or in the provision of food, clothing or shelter;
- The failure to provide medical care for physical and mental health needs;
- The failure to protect from health and safety hazards; or
- The failure to prevent malnutrition or dehydration.
It is important to note that elder abuse cases based upon “neglect” may be based on either negligent or intentionally tortious conduct. Since neglect is defined in the first instance to include the failure of any person having custody of an elder to exercise that degree of care that a reasonable person would exercise, elder abuse predicated upon neglect can incorporate the ordinary negligence elements, including the failure of the defendant to conform his conduct to the applicable standard of care and resulting damages proximately caused by such conduct. These cases often turn upon the identification of the appropriate standard of care, which may in turn depend upon the “reasonably prudent person” test. The applicable standards may also be predicated upon the regulatory requirements that apply to the health and care of elders.
Neglect claims may also involve more than negligence. Depending upon the facts of a given case, the failure to provide food, clothing or shelter, medical or health care, or protection from health and safety hazards may also be willful and/or intentional. Moreover, as will be demonstrated later in this chapter, where neglectful conduct approaches willful or intentional misconduct, a broader range of remedies may be available. For present purposes, it suffices to note that elder abuse claims predicated upon “neglect” are not necessarily restricted to those predicated upon negligent conduct.
- Elements of Plaintiff’s Cause of Action – Financial Abuse – The legislative enactments have recognized that “elder abuse” is not restricted to instances of physical abuse or neglect. To the contrary, legislatures have determined that elderly citizens are also particularly susceptible to fraud, misrepresentation, and misappropriation by those having access to the elder’s property or finances. While claims pertaining to such conduct would ordinarily be actionable regardless of the victim’s elder status, legislatures have acted to define “financial abuse” in terms more uniquely applicable to fraud or misappropriation practiced against elders.
For example, California Welfare & Institutions Code section 15610.30 defines “financial abuse” to include any situation in which
- the person who has care or custody of an elder takes, secrets, or appropriates an elder’s money or property to their own use;
- a person who stands in a position of trust to an elder takes, secrets, or appropriates money or property to their own use; or
- a person engages in a bad faith refusal to return to an elder any property that the third party holds pursuant to an express, resulting, or constructive trust on behalf of the elder.
When any of the foregoing acts of financial elder abuse are proven, the elder is again entitled to the full range of tort remedies, including compensatory special and general damages, as well as punitive damages in appropriate cases.