Nursing Home Abuse

In 2003 the National Research Council Panel to Review Risk and Prevalence of Elder Abuse and Neglect released a study that estimated between 1-2 million Americans age 65 or older have been injured exploited or mistreated by their care takers.  However, authorities agree that the exact number of elder abuse cases will never been known because of the victims inability to defend themselves.  In 1998 the National Center on Elder Abuse at American Public Human Services released a study that estimated that for every 1 case of elder abuse, neglect, exploitation, or self neglect reported to authorities, about 5 more go unreported. 

What is being done to combat Elder Abuse?

On a federal level the Older Americans Act: Title VII Vulnerable Elder Rights Protection was created by Congress to prevent abuse, neglect and exploitation through investigation, education and funding.  On a state level the California Legislature passed the Elder Abuse & Dependent Adult Civil Protection Act (“EADACPA:â€?) via the Welfare & Institutions Code § 15600 et sq.  This section covers “any person between the ages of 18 and 64 who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.â€?

Traditionally when an elderly person brought a cause of action against a care taker they would have to prove that the abuse occurred due to conduct that was intentional, reckless, oppressive, fraudulent, or with malice.  Such a standard was often difficult to prove.  However, currently the interpretation of the Elder Abuse Act only requires the above heightened evidentiary standards when a plaintiff seeks attorneys fees or the elderly person past away and their heir attempts to recover damages for pain and suffering of the decedent.  The Elder Abuse Act has provided additional protection by creating a cause of action for negligence, which is often characterized as neglect.  Due to the definition of “neglectâ€? in the Welfare & Institutions Code the elderly now can bring suit against care takers who fail to provide them with: food, water, clothing, shelter, assistance with personal hygiene, medical care (physical and mental), and protections against safety hazards.  With these new or modified causes of action, an attorney will have more avenues in rectifying the harms that an elderly person has suffered. 

Who can be found liable under the Elder Abuse Act?

It is a common misconception that only people directly causing physical abuse to the elderly or professional care takers such as nursing homes can be sued under the Elder Abuse Act.  However, that is false.  A brief explanation of Elder Abuse may be helpful to understand how the Elder Abuse Act applies.  Elder Abuse can be categorized into three general forms: 1) Physical & Mental abuse – which includes physical harm, sexual abuse and emotional abuse.  2) Neglect – either self neglect or neglect from one’s caretaker. 3)  Financial abuse – meaning exploiting the elderly person for financial gain by the care taker. 

Most people generally understand that in cases of physical and mental abuse, the abuser could face possible civil and criminal liability for their wrongful actions.  It is the second type of abuse: Neglect that many elderly do not fully understand their rights.  Many believe that neglect only occurs in assisted living or nursing home situations; however neglect under the Elder Abuse Act also covers licensed medical institutions, which is distinct and different from a medical malpractice claim. 

Some examples of neglect by a medical facility are: 
    - Patients developing pressure ulcers during transit
    - Failure by hospitals in following their own patient care policies and procedures 
    - Insufficient staffing to perform prescribed patient care such as turning of the patient
    - Failure to place patient on the correct type of mattress prescribed

We here at Aitken * Aitken * Cohn understand that the elderly are a group of individuals that especially need assistance in protecting their rights.  We feel a civic obligation to make our services available when they can be of assistance.  If you or a loved one is elderly and has suffered some time of physical abuse or neglect, we offer our services and years of experience in personal injury to you. 

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3 MacArthur Place, Ste 800
Santa Ana, California, 92707
Toll Free: 866-434-1424