Nursing Home Abuse
Elder Abuse

By Janice F. Mulligan, Esq.
and Elizabeth A. Banham, Esq.

Q: What is Elder Abuse?

Recently, in California and nationally, statutory schemes were amended because of the legislatures' recognition that elderly and dependent adults are more subject to risks of abuse, neglect and abandonment. California's statute seeks to impose enhanced damages including attorney's fees and pain and suffering damages which survive the death of the victim where it is proven by clear and convincing evidence that a defendant is liable for physical abuse, neglect, or fiduciary abuse, and that the defendant has been guilty of recklessness or worse.

The abuse can be recurrent neglect or a single egregious event which produces injury, either physical or financial.

Q: What types of injuries are most frequently seen in these cases?

There are several common types of injuries that are seen as a result of progressive abuse. These include decubitis ulcers (or bedsores), severe dehydration and/or malnutrition, septic shock, gangrene and aspiration pneumonia. Evidence of systemic neglect is often revealed through (1) persistent deprivation of basic care for totally dependent residents; (2) injuries and deaths that are linked to progressive neglect; and (3) similar problems involving other residents.

Q: How do regulations affect nursing homes?

The Federal statute, the Omnibus Budget Reconciliation Act or "OBRA", 42 USCA 1396r et seq. and 1395i-3 et seq., and its interpretive guidelines, spell out how nursing homes are ultimately responsible for the health, medical care and well-being of their residents. A federal bureau known as the Health Care Financing Administration, oversees compliance with these regulations. If substantial compliance is shown, certification of the home is continued and the home can continue to receive government funds such as Medicare/Medicaid. If not, the home may lose its benefits.

California has its own nursing home licensing and inspection scheme, as well as the California Elder Abuse Act (or "EADACPA"), Welfare & Institutions Code §15600, et seq. EADACPA provides new remedies such as the recovery for attorney's fees in certain cases. Care is expected to improve as nursing homes take steps to prevent injuries and avoid litigation, which is increasing given the new remedies available.

Q: What types of damages are available in these cases?

California's EADACPA allows for attorneys' fees and pain and suffering damages which survive the victim's death. Under a recent case, Delaney v. Baker (1999) 20 Cal. 4th 23, the California Supreme Court found that only causes of action "based upon professional negligence" need be governed by laws that specifically apply to them, including California's Medical Injury Compensation Reform Act, Civil Code §3333.2 ("MICRA"), which caps non-economic damages at $250,000.

If a case is found to rest more in elder abuse than physician malpractice, there is no cap on general damages. Based on this EADACPA and Delaney, in addition to general, special and punitive damages, plaintiffs shall now receive reasonable attorney's fees and costs, as well as general damages for the victim's own pain and suffering despite the fact that the victim may have passed away.

Q: How do you best evaluate a plaintiff's case in this area?

Counsel must obtain as much information as possible before proceeding with litigation. An initial review of the medical records is critical. Counsel should also interview all available family members, friends and percipient witnesses to determine if there is any additional information regarding the elder's treatment or documents which will assist in evaluation. This should include inquiries regarding complaints and/or third party investigations by governmental authorities.

Because most victims in nursing home cases are long past the stage of earning wages and often have short life spans, analysis of these cases is different. Important factors include the egregiousness of the nursing home's conduct, its financial viability, whether a pattern of neglect can be shown, and whether injuries from the nursing home's negligence can be distinguished from the resident's existing disease process.

Public records which are available include inspection records from the local office of the State Department of Health Services, including ACLAIMS database profiles, and local and state ombudsman's records. All of these documents are useful in establishing the strength of potential case.

Q: What do you do when you believe someone died because of medical negligence or nursing home abuse?

An autopsy is usually necessary if you truly want to prove in a court of law what caused a person’s death. While it is not impossible to win a lawsuit without an autopsy , in many circumstances, it will be extremely difficult to prove a case without one. Even if you know (or think you know) the cause of death ,an autopsy can provide valuable information to aid in the lawsuit as well as providing answers to family members about the circumstances surrounding someone’s death.

For example, if someone dies of a heart attack (cardiac arrest) an autopsy may be able to show whether there were any prior, silent attacks, approximately when each such attack occurred and whether or not the final cardiac arrest was the type that could have been prevented with good medical care.

Better if the autopsy is done somewhere other than at the hospital where the questionable medical care was rendered. If adequate funds are available, consider having the autopsy performed at a university medical center . Specifically request that the doctors involved in the care and treatment of the patient NOT be allowed to be present during the autopsy and for the medical examiner/ pathologist/toxicologist involved in the autopsy NOT communicate with the treating doctors about their findings.

It generally will l take a couple of months to get the final report regarding the autopsy. In the interim, whomever is listed as next of kin on the death certificate should IMMEDIATELY order ALL records from the hospital or health care facility where the questionable care was rendered. . Bring the photo ID of the heir requesting the records together with a copy of death certificate to the medical records department when requesting records . Write down the name of whomever is taking the order for the records and the date the records will be ready. Please see additional information above about obtaining medical records.

You need to get those records ASAP before the autopsy is completed so the health care providers won't be able to change the records to conform to whatever is in the autopsy report that may or may not help them.

Q: Where should your case be filed?

The Elder Abuse Act gives the Probate Court "concurrent jurisdiction" over civil actions which include remedies under the Act, but only if a conservator has been appointed. (Welfare & Institutions Code §15657.3(a).) The complaint should reflect that there is a conservator and show in the prayer all those enhanced damages being sought, including punitive damages (if available under the facts), and attorney's fees and costs. While there is an advantage of filing in probate court in that the court is more likely to be educated about issues affecting elders, it is important to know that there is no right to a jury trial under conservatorship proceedings. (Probate Code §7200.)

The law firm of Mulligan & Banham in San Diego, is available for referral of elder abuse and medical malpractice cases. We have the experience and resources to gain quick medical review of records for case evaluation.

For more information, please contact Elizabeth Banham at the firm:
2442 4^th Avenue, San Diego, CA   92101
Phone: (619) 238-8700
Fax: (619) 238-8701 or
E-mail at info@mulliganandbanham.com