California enacted the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) to address a variety of concerns about the care of the elderly. These concerns are common to elder care facilities throughout the United States. The law includes a number of key parts including identifying the reasons why the law was enacted, various definitions, confidentiality issues, mandatory and nonmandatory reports of abuse, investigations, prosecution of elder and dependent adult abuse cases, and reporting forms.
Some of these concerns include focusing on the special needs of the elderly; recognizing that the elderly are more subject to abuse, neglect, and abandonment than other population segments; and understanding that many elderly nursing home residents have developmental disabilities, physical impairments, and mental/verbal limitations that leave them vulnerable to abuse.
The Elder Abuse and Dependent Adult Civil Protection Act, enacted in 1982, authorizes the filing of civil actions for the abuse of elderly or dependent adults. At Garica & Artigliere, our record of successful elder care abuse and neglect litigation includes a $38,600,000 settlement – considered to be the largest EADACPA settlement in California history. Elder abuse includes physical abuse, sexual abuse, financial abuse, neglect, abandonment, and other personal injury violations. Sadly, many cases of elder abuse in long-term care facilities including nursing homes is never reported.
What damages can be awarded based on a civil complaint?
EADACPA authorizes damages for pain and suffering, punitive damages, and legal fees – in addition to other damages where there is clear evidence of abuse, neglect, or other violations of the Act. The statute states that victims must show, with the help of experienced elder abuse counsel that nursing home or other responsible care provider is “guilty of recklessness, oppression, fraud, or malice in the commission of this abuse.”
Generally, a resident must show that the nursing home owes the resident a duty of care (normally shown through the contract the resident (or a guardian) signs with the nursing home. The resident must show that this duty of care was breached in some way – and that the breach caused the resident physical, emotional, or financial harm.
EADACPA also authorizes criminal charges and penalties in addition to the filing of civil complaints.
What types of misconduct justify filing a legal claim based on EADACPA?
EADACPA protects seniors from various types of abuse and neglect including:
- Failure to provide medical care
- Causing malnutrition or dehydration
- Isolation of a resident
- Neglect of a resident’s cleanliness, hygiene, nutrition, clothing, and shelter
- Physical abuse
- Sexual abuse
- Financial abuse
- Violations of a resident’s rights
- Physical and mental suffering
Some of the requirements of EADACPA
EADACPA requires that nursing homes and other care providers properly report instances of abuse. The requirements vary depending on the type of abuse. For starters, if a resident suffers physical abuse, local law enforcement should be notified promptly. The nursing home, elder care facility, or caretaker must also file a written report with the state or local ombudsman.
It’s not just nursing homes and caregivers who must report abuse. Doctors, psychologists, and other health professionals must also disclose if a senior was abused.
A person, regardless of whether the person lives independently, between the ages of 18 and 64 years 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, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.
Elder. “Elder” means any person residing in this state, 65 years of age or older.
Goods and services necessary to avoid physical harm or mental suffering. This term includes medical care for physical and mental health needs, personal hygiene assistance, clothing, a properly heated and ventilated shelter, protection from malnutrition, and other goods and services.
Abuse. “Abuse of an elder or a dependent adult” means any of the following:
(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
Neglect. “Neglect” means either of the following:
(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.
There are many other definitions including definitions for imminent danger, adult protective services, healthcare practitioner, isolation, local law enforcement agency, long-term care facility, long-term care ombudsman, mental suffering, patient’s right advocate, reasonable suspicion, serious bodily injury, undue influence, and other terms.
If you or someone you know suffered abuse or neglect while living in a nursing home, the elder abuse attorneys at Garcia & Artigliere understand your rights and the federal and state laws that protect you. Our lawyers have obtained more than $3 billion on behalf of injured Americans. Our civil trial lawyers have been fighting for injury victims including nursing home victims for 30 years. Contact our firm to schedule your free and confidential case review now. Our offices are located in Long Beach, Los Angeles, Louisville, Phoenix, and New Orleans.
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Stephen M. Garcia represents victims of elder and nursing home abuse and is known as one of the leading civil litigators in the country. He is Senior Partner at Garcia & Artigliere, where the firm’s practice is focused on elder abuse, nursing home abuse, and wrongful death of the elderly.
Find out more about Stephen M. Garcia