Elder Abuse: Do You Know It When You See It?
By Kathryn Stebner, Stebner and Associates The Trial Lawyer, Fall 2003, pp.14-17
The Trial Lawyer, Fall 2003, pp.14-17
“Elder abuse cases involve some sort of institutional pattern that allows an injury to occur; e.g., understaffing, poor staff training, budgeting issues.”
— Kathryn Stebner
Most personal injury attorneys who hear the term “elder abuse” only think of cases against Skilled Nursing Facilities – and even then, there is some confusion as to what elder abuse is and what plain “medical malpractice” is. This article will briefly address the difference between “elder abuse” in a Skilled Nursing Facility or Acute Care Facility, and “medical malpractice” that takes place in these facilities. I will then address Residential Care Facilities for the Elderly and conclude with a brief recitation of financial elder abuse law. All of these cases stem from Welfare and Institutions Code §15600, et seq., better known as the Elder and Dependent Abuse Act.
II. Elder Abuse Vs. Medical Malpractice
Actions under the elder abuse statute are governed by the two-year statute of limitations of CCP§335.1, not the one year statute of limitations period of MICRA’s CCP §340.5 for actions for professional negligence. Therefore, the MICRA caps and collateral source rules do not apply. Actions for elder abuse require, at the very least, reckless behavior. Thus, if a death is caused by recklessness, there is no MICRA cap on the heirs’ recovery. There is a cap of $250,000 for pre-death pain and suffering of the elder, but only if the elder is deceased. Pain and suffering of a living elder is not capped.
A practitioner must prove recklessness, or “looking the other way” in the face of danger. This is what really distinguishes an elder abuse case from a medical malpractice case. Most medical malpractice cases involve a failure to diagnose, failure to treat a condition upon presentation to a hospital or physician, and often only involves a single act. Elder abuse cases involve some sort of institutional pattern that allows an injury to occur; e.g., understaffing, poor staff training, budgeting issues. The practitioner must prove ratification by a managing agent, or act of a managing agent, following the standards of Civil Code section 3294. White vs. Ultramar, Inc. (1999) 21 Cal.4th 563 defined a managing agent as one who can effect policy. An administrator is always found to be a managing agent. Sometimes a large corporate defendant makes the argument that the administrator cannot make policy decisions and that these decisions are made at the “corporate level.” Judges don’t usually buy this argument as the administrator runs the facility. The Director of Nurses may or may not be the managing agent depending on the fact pattern.
Marron vs. Superior Court (2003) 103 Cal.App.4th 1049 held that a “dependent adult” may be defined as someone who is in an acute care facility pursuant to Welfare and Institutions Code section 15610.23(d). Therefore, if you have an adult in an acute care facility and defendant meets the criteria of Welfare and Institutions Code section 15657 (reckless neglect and the standards set forth in CCP section 3294), then the Elder and Dependent Abuse Act can be utilized.
III. Residential Care Facilities For The Elderly (RCFE)
You will need to immediately ascertain whether the facility is a skilled nursing facility or a residential care facility. The applicable laws and procedures are significantly different. You can’t tell by the name of the facility.
Residential Care Facilities for the Elderly are often an intermediate step prior to being placed in a Skilled Nursing Facility. Health and Safety Code sections 1569 to 1569.699 govern all Residential Care Facilities for the Elderly. Regulations are set forth in 22 California Code Regulations sections 87100 to 87730. There is little applicable federal law.
The most important thing to know about Residential Care Facilities for the Elderly is that they are not health care providers. As such, the courts have held that such facilities are not subject to MICRA. Kolter v. Alma Lodge (1998) 63 Cal.App.4th 1381, 1391.
Because a Residential Care Facilities for the Elderly is not a health care provider, you need not bring a motion to amend a complaint for punitive damages pursuant to C.C.P. section 425.13. In addition, Health and Safety Code section 1430 (commonly known as the Patient’s Rights Statue) does not apply. But Welfare and Institutions Code section 15600 (known as the Elder and Dependent Adult Abuse Act) does apply. Therefore, if recklessness or malice is shown pursuant to the statute, recovery of damages for the pain and suffering of the deceased survives death and attorney fees are recoverable. Remember that your fee agreement should not be one that sets forth fees pursuant to MICRA.
A person who enters a Residential Care Facilities for the Elderly should be able to walk, unless the facility obtains a waiver for non-ambulatory residents with the State. A bedridden resident is one who requires assistance in turning and repositioning and/or is unable to transfer to and from bed (Health and Safety Code §1569.72). Under the law, a Residential Care Facilities for the Elderly cannot admit anyone who needs care that should be provided by a Skilled Nursing Facility (22 Cal. Code Regulations §87582). There is a list of prohibited conditions set forth in the regulations. (22 Cal. Code Regulations §87701).
Regulations state that a facility may accept a “healing wound,” if there is care performed by a skilled medical professional and the admission is approved by the State. The wound can be a Stage I or II if the wound is an ulcer. The State is also supposed to evaluate the cause of the ulcer (22 Cal. Code Regulations §87713). Obviously, in the case of ulcers, these steps are often not taken and can subject the facility to liability if the patient’s condition worsens.
A facility must obtain a Residential Care Facilities for the Elderly license (Health and Safety Code §1569.145(d); 22 Cal. Code Regulations §87105). There is an exemption for facilities not providing care or supervision. This is an obvious area of inquiry. Operation of a Residential Care Facilities for the Elderly without the proper license is a violation of the Business and Professional Code section 17200.
“Community Care Licensing” is the State agency that has supervision powers over a Residential Care Facilities for the Elderly. This is different than the agency that oversees Skilled Nursing Facilities. You will need to immediately get the file regarding the subject facility from Community Care Licensing to look for patterns and to help prove notice, recklessness, and malice. There are regional offices.
Each Residential Care Facility for the Elderly must have an Administrator (22 Cal. Code Regulations §87563). Administrators are required to be at the facility “a sufficient number of hours to provide adequate management of the facility.” Amazingly, no education is required if the facility has fewer than fifteen residents. If there are sixteen to forty-nine residents, the Administrator must have 15 units of college education and one year in providing similar care or equivalent experience. If there are fifty or more residents, the Administrator must have two years of college education and three years experience providing similar care. Check to make sure that the Administrator of the facility is qualified.
A “sufficient” number of staff must be employed to meet the residents’ needs. This number may vary depending on the care needs of the residents in the facility (Cal. Code Regulations §87580). You can use the language of the regulation as the standard of care. If the facility is caring for persons with dementia, the staffing should be adequate to provide supervision of the dementia residents as well as the needs of all the other residents. Therefore, it is important to gather all information as to the acuity of all the residents. (This is in contrast to specific hourly “nursing hours per patient” set as a floor in Skilled Nursing Facilities in California). There are regulations that state that, for night supervision, there must be one qualified person on call if the facility has fewer than sixteen residents (Cal. Code Regulations §87571(a)(1)). If a facility houses sixteen to one hundred residents, there must be a person on the premises and awake at all times (22 Cal. Code Regulations §87581(a)(2)). Persons must be on call and able to respond in ten minutes (22 Cal. Code Regulations §87581 (a)(2)). Astonishingly, these regulations seem to apply to facilities that have residents with dementia as well. Again, total resident acuities are key. If everyone is demented, more staff is needed.
Facilities must maintain “complete resident records” (22 Cal. Code Regulations §87570). This is often not done, and if it is, look for falsification of records when the State comes to investigate. Always compare all the files you receive and obtain the files several times at different intervals.
Facilities must provide Pre-Admissions Appraisals for each resident prior to admission (22 Cal. Code Regulations §87583). These are means to determine who should and should not be in a Residential Care Facility for the Elderly. Most Residential Care Facilities for the Elderly are private pay. There is a great incentive to admit residents into the facility who may be too sick to be in a Residential Care Facility for the Elderly.
Facilities must provide regular observations of the resident’s physical and mental conditions to ensure that acceptance and retention limits are complied with (22 Cal. Code Regulations §87587). This is an area to watch out for and is often not done.
Facilities must also maintain a current written plan of Incidental Medical Needs (Cal. Code Regulations §87575). Check to see if this has been complied with.
The admission Agreement is essential to you case. It is a contract that sets forth all the promises describing what the facility will be doing. It can be the basis for a fraud claim (e.g., by showing that the facility never intended to provide that kind of care) and a claim for breach of contract.
Reappraisals are required when there is a change of condition (22 Cal. Code Regulations §87587(a)(3), yet these are almost never done.
Residential Care Facilities for the Elderly must carry liability insurance. Be sure to request production of all applicable policies.
IV. Financial Elder Abuse
When a person is elderly, one of their biggest fears is not being able to pay for long-term care. Because of this fear, the elderly are preyed upon by people claiming to be able to “protect their assets” and/or “qualify them for Medi-Cal.”
There are several fact patterns to watch out for. The three below are common:
- Your client has gone to a “trust mill” and purchases a trust, but they don’t need the product (i.e., they already qualify for Medi-Cal or never will).
- When your client has been sold an annuity that they don’t need and may put them in a worse position (i.e., they bought a deferred annuity and are elderly, therefore they have no liquidity).
- Your client has purchased an annuity and all it did was give the agent a commission.
V. Financial Elder Abuse Statutes
Welfare and Institutions Code section 15610.30(1) is the “financial abuse” portion of the Elder and Dependent Abuse Act. Financial abuse occurs when a person “takes, secrets, appropriates, or retains real or personal property . . . for a wrongful use or with intent to defraud, or both.” A defendant can be held accountable for assisting with the abuse as well. This was recently added to the statute. It could be used against institutions such as banks and insurance companies. If the defendant violates the code, the plaintiff is entitled to attorney’s fees.
CCP section 1750 (The Consumer Legal Remedies Act) should be considered in these cases. The main issue will be whether annuities or financial products are considered goods under CCP section 1761(a). CCP section 1770 sets forth a list of unfair or deceptive acts which will be the basis of the action. If the Consumer Legal Remedies Act is used, remember that pursuant to CCP section 1782, the practitioner must notify the person or party who allegedly committed the acts thirty days prior to the commencement of the action, and demand correction of the alleged violation. This is a prerequisite.
Business and Professions Code sections 17200 and 17500 are perfect for these cases. The unlawful and deceptive tactics used towards the elderly in the sale of trusts and annuities are staggering. Many of these cases involve hundreds of persons being defrauded by the same “company” and may involve $10,000 per individual. Commissions are made and are perfect for restitutionary claims under Korea Supply Co. vs. Lockheed Martin Corp. (2003) 29 Cal.4th 1134.
Insurance Code section 780 and 781 mandate that an agent not misrepresent the benefits of annuities.
Insurance Code section 785 sates that agents who sell insurance owe persons who are 65 or older a duty of honest, good faith and fair dealing, which may be breached.
Insurance Code section787 states that advertisements designed to provide leads from a person 65 or older, must disclose that an agent may contact the person if that is a fact. The statute sets out further guidelines as to advertising to elders.
Insurance Code section 789.8 sets forth the rules on sales of annuities to elders, and states that such agent may not negligently misrepresent the products treatment under the Medi-Cal program as to eligibility. The statute specifically sets out what the notice must say regarding Medi-Cal eligibility.
Insurance Code section 790.3 sets forth unfair methods of competition and deceptive practices in the sale of insurance.
Civil Code section 3345 trebles damages in elder case abuse involving violation of statues.
Many people who are selling “trusts” are not attorneys, yet they appear to be practicing law in violation of Business and Professional Code section 125.
Elder abuse appears in many forms. There are numerous special statutes to protect the elderly population. A practitioner has an obligation to her client to take full advantage of the legislature’s desire to protect this vulnerable population.