What is Elder Abuse/Neglect under California Law?

The fact that you are reviewing the website of attorneys who specialize in elder and dependent adult abuse probably means you believe you or a loved one is thought to be a victim. Perhaps it is something which happened at a hospital. Maybe there was harm at a skilled nursing facility or perhaps something occurred at a residential care or assisted living facility for the elderly or adult assisted living facility. Regardless of the type of facility, the same general principles of law apply.

DEFINITIONS

There are two categories covered by the Elder Abuse and Dependent Civil Protection Act, commonly referred to as The Elder Abuse Act. Those which deal with “care or custody” are:

“Elder”:  Any person residing in this state, 65 years of age or older.”

“Dependent Adult”:  Any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility.

Under California law, there are three types of conduct which qualify as abuse. They are Neglect, Physical Abuse, or Abandonment.

Elder Neglect occurs when one having direct care or custody of an elder or dependent adult fails “to exercise that degree of care that a reasonable person in a like position would exercise.” It can take many forms. Some (but certainly not all) of those forms include:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
(2) Failure to provide medical care for physical and mental health needs.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.

Physical Abuse includes various types of inappropriate conduct. Examples include such things as:

(1) Assault, which is an unlawful attempt, along with a present ability, to commit a violent injury on another. Threats of physical violence probably qualify here;
(2) Battery, which is any willful and unlawful use of force or violence upon the person of another. Actually striking you or a loved one may qualify. But other acts, such as violently grabbing someone or holding someone down may also qualify;
(3) Unreasonably restricting the movement of you or a loved one;
(4) Continual deprivation of food or water;
(5) Sexual assault, sexual battery, rape, sodomy, oral copulation, sexual penetration, or lewd or lascivious acts obviously qualify;
(6) Use of a physical or chemical restraint or psychotropic medication under any of the following conditions:
(a) For punishment;
(b) For a period beyond that ordered by a physician; or
(c) For any purpose not authorized by the physician.

Abandonment occurs with the desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody. Intentionally leaving the victim to suffer in needless pain or refusal to transport the victim to a hospital where that obviously is necessary would be examples.

What are some of the potential signs of abuse or neglect?

The potential signs and symptoms of abuse or neglect are varied. Some are apparent to the victim or the victim’s family; others may require a complete review of the victims medical records. But signs which can be observed may include:

• Pressure injuries (sometimes commonly called “bedsores”);
• Falls with injury;
• Elopement;
• Malnutrition;
• Dehydration;
• Infections;
• Lack of personal hygiene;
• Failure to monitor and treat ongoing medical conditions such as diabetes or heart disease;
• Failure to timely recognize changes of conditions;
• Suicide;
• Deterioration of a resident’s ability to communicate or a loss of consciousness; or
•  Failure to keep family members or responsible parties advised of the victim’s conditions.

What remedies are available in elder and dependent abuse cases?

If a loved one has been abused, neglected or taken advantage of, then there may be various legal remedies available. In some situations, the party responsible for the abuse or mistreatment may be criminally liable. The abuse may also give rise to a claim for monetary damages.

In a civil suit for damages, you can request financial compensation as reimbursement for out-of-pocket expenses and to cover other damages, such as pain and suffering, emotional distress and anguish. Depending on the extent of the abuse, there may also be a claim for punitive damages to punish the provider for their wrongful acts.

What should you do if a loved one has been abused or neglected?

If you suspect that a loved one has been the victim of abuse or neglect, there are things you can do to help them. Things you can do include:

• Seek out immediate medical treatment from a different provider;
• Contact law enforcement;
• Obtain records from the facility;
  • Don’t let a facility tell you that you cannot have the records. Several state and federal statutes and regulations mandate that if you provide a proper written authorization signed by the victim or the victim’s representative to a medical provider, the medical provider “shall promptly make all of the patient’s records under the medical provider’s custody or control available for inspection and copying by … his or her representative.” The records must be made available within a few days.
• Take photographs and video recordings;
• Seek out the advice of an attorney.

An attorney qualified and knowledgeable in the area of elder/dependent adult abuse can give you legal advice that is specific to your situation. This will help you protect your loved one and, where necessary, help to remove him or her from the harmful situation. The attorneys at Allen Saltzman, LLP can help you understand your options and can provide legal representation to hold the liable parties responsible for their actions. Call us today.