California Cause of Action for Elder Abuse

The Elder Abuse Act is codified in Welfare and Institutions Code section 15600 et seq. The purpose of the act is "to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect." (Delaney v. Baker (1999) 20 Cal.4th 23 at p. 33.) To encourage private enforcement of the law, the act affords heightened remedies, including damages for a decedent's pain and suffering, attorneys' fees and costs, and punitive damages. (Welf. & Inst. Code, 15657; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779-780.) To state a cause of action for elder abuse, the plaintiff must plead facts showing two elements: (1) the defendant has subjected an elder to statutorily-defined physical abuse, neglect or financial abuse; and (2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (Welf. & Inst. Code, 15657.) When an elder abuse claim is brought against a corporate defendant, the plaintiff must further allege that an officer, director or managing agent authorized or ratified the abuse or neglect. (Welf. & Inst. Code, 15657, subd. (c); Civ. Code, 3294.) The proscribed acts do not include acts of simple professional negligence, but rather, refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. (Delaney v. Baker, supra, 20 Cal.4th at p. 32.) Addressing the first element, the Delaney court stated that "neglect . . . appears to cover an area of misconduct distinct from 'professional negligence' . . . . 'Neglect' . . . does not refer to the performance of medical services in a manner inferior to '"the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing"' , 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." (Id. at p. 34.) With respect to the level of culpability required, Delaney further explained: "In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve 'intentional,' 'willful,' or 'conscious' wrongdoing of a 'despicable' or 'injurious' nature. '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 . Recklessness, unlike negligence, involves more than 'inadvertence, incompetence, unskillfulness, or a failure to take precautions' but rather rises to the level of a 'conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.'" (Id. at pp. 31-32.) Briefly summarized, reckless neglect for purpose of the elder abuse statutes is not negligence in the undertaking of medical services, but rather, consists of the more fundamental failure to provide medical care. (Delaney v. Baker, supra, 20 Cal.4th at p. 34.) Reckless neglect includes only "'acts of egregious abuse.'" (Id. at p. 35.) It does not refer to the substandard performance of medical services. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771 at p. 783.) In Covenant Care, the court confirmed that the high standard imposed by Welfare and Institutions Code section 15657 protects health care providers from liability under the statute "for acts of simple or even gross negligence." (Id. at p. 785.) Though addressing evidence adduced at trial, Delaney v. Baker, supra, 20 Cal.4th 23, also provides an example of the type of reckless neglect sufficient to support a cause of action for elder abuse. There, an 88-year-old patient fractured her ankle and was admitted to a skilled nursing facility. During the four months that she resided at the facility, she developed pressure ulcers or bedsores that ate away her tissue down to the bone. The patient was frequently left lying in her own urine and feces for extended periods of time. Though the patient's daughter repeatedly complained of the neglect to nursing staff and the facility's administration, the patient's physician did not receive timely notice of pertinent information. The DHS had cited the facility for patient neglect shortly before the patient's admission and, following the patient's death, imposed a more serious citation for inadequate care creating a substantial risk of death or great bodily injury. (Id. at pp. 27-28.) The Supreme Court concluded: "In the present case, there is substantial evidence that the patient was subject to neglect in that the facility failed, over an extended period of time, to attend to her advanced bedsores, and otherwise neglected her in such a way as to contribute to her pain and suffering and eventual death. There is also substantial evidence . . . that the conduct was reckless, given the facility's knowledge of the patient's deteriorating condition and the patient's daughter's repeated effort to intervene in her mother's behalf." (Id. at p. 41.)