Author Archives: Adam Peck

Under the California Elder Abuse Act, “heightened remedies are available to plaintiffs who successfully sue for dependent adult abuse. Where it is proven by clear and convincing evidence that a defendant is liable for neglect or physical abuse, and the plaintiff proves that the defendant acted with recklessness, oppression, fraud, or malice, a court shall award attorney fees and costs. Additionally, a decedent’s survivors can recover damages for the decedent’s pain and suffering.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88 (Sababin).)

Abuse of an elder or a dependent adult is defined under the Act as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (§ 15610.07, subd. (a)) or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” (id., at subd. (b)). “Neglect includes 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; and the failure to prevent malnutrition or dehydration. (§ 15610.57.) Physical abuse means, inter alia, assault, battery, prolonged deprivation of food or water, unreasonable physical restraint, or sexual assault. (§ 15610.63.)” (Sababin, supra, 144 Cal.App.4th at p. 88.)

To obtain the remedies available under the Elder Abuse Act, a plaintiff must prove culpability beyond mere negligence. He or she must demonstrate by clear and convincing evidence that the defendant is guilty of recklessness, oppression, fraud, or malice. (Delaney, supra, 20 Cal.4th at p. 31.) Recklessness refers “to a subjective state of culpability greater than simple negligence, which has been described as a `deliberate disregard’ of the `high degree of probability’ that an injury will occur.” (Ibid.) Oppression, fraud and malice “involve `intentional,’ `willful,’ or `conscious’ wrongdoing of a `despicable’ or `injurious’ nature.” (Ibid.) Conduct giving rise to the enhanced remedies available under the Elder Abuse Act is “essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789 (Covenant Care ).)

The Elder Abuse Act does not encompass liability for professional negligence. Section 15657.2 provides that “any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider’s alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action.” In particular, “MICRA, the Medical Injury Compensation Reform Act of 1975, refers to several statutes that restrict or place conditions upon causes of action and remedies directed at `health care providers’ for `professional negligence.’ (See Code Civ. Proc., § 364 [requiring 90-day notice prior to bringing lawsuit]; id., § 667.7 [permitting periodic payment of any judgment against the provider]; id., § 1295 [requiring a certain type of notice for providers’ mandatory arbitration provisions]; Bus. & Prof. Code, § 6146 [providing caps on attorney contingency fees]; Civ. Code, § 3333.1 [making admissible evidence of workers’ compensation or disability payments]; and id., § 3333.2 [providing a $250,000 cap on noneconomic damages].)” (Delaney, supra, 20 Cal.4th at pp. 28-29, fn. 2.)

Thus, while “[i]t is true that statutory elder abuse includes `neglect as defined in Section 15610.57² [citation], which in turn includes negligent failure of an elder custodian `to provide medical care for [the elder’s] physical and mental health needs’ [citation],” such neglect “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.’ [Citation.] 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 p. 783.) In other words, while negligently providing health care is not covered by the Elder Abuse Act, doing so recklessly, oppressively, fraudulently or maliciously is.