(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)
Elder Abuse Remedies
The remedies available for elder abuse claims are listed in Welfare & Institutions Code § 15657, which states:
Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.
As set forth in the statute, plaintiff’s burden of proof in seeking heightened remedies under the Elder Abuse Act is that of clear and convincing evidence. This burden of proof applies to liability, and causation. In Perlin v. Fountain View Management (2008) 163 Cal.App.4th 657, 664 the court said:
Liability under section 15657 includes as an element causation, which, as all elements of liability, must be proved by clear and convincing evidence for purposes of an award of attorney fees.
The evidence in this case falls far short of what is necessary for plaintiff to meet the clear and convincing burden of proof to establish liability and causation for elder abuse damages. For an elder abuse claim a plaintiff can pursue a claim of neglect or physical abuse. Plaintiff here is pursuing a neglect theory of recovery. The law is clear that neglect is different than negligence, and simply showing there was a breach of the standard of care is insufficient to establish a prima facie case of neglect. (See Part 7 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.