Noting a need to protect one of the most vulnerable portions of its population, in 1991, California passed the revised Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) to better afford protection to California's elderly population. EADAPCA, as amended in 1991, now provided for a private civil claim where a current or former resident of a long term care facility, such as a nursing home, assisted living facility, etc., could sue the facility if they have been abused or neglected.
If a claim is successfully made under EADACPA, then the claimant is entitled to pre-death pain and suffer, attorney's fees, and costs. This is significant because most long term care facilities are licensed as healthcare facilities whose negligence is protected by California law by way of a $250,000.00 cap on pain and suffering damage. Accordingly, EADACPA provides a way for abused or neglected individuals to be fairly compensated for the true value of their injuries.
In order to successfully make a claim under EADACPA, a claimant must prove, by clear and convincing evidence that the facility denied or withheld care, and as a result, the denial of such care resulted in harm to the claimant. Additionally, under EADACPA, a claimant must show that a managing agent of the facility, such as an Administrator, Director of Nursing, etc., either directly engaged in the abuse or neglect, or knew or should have known about the wrongful conduct yet failed to do anything about it.
The types of cases that typically encompass an EADACPA claim are the following scenarios:
- Preventable falls,
- Bedsores, also known as decubitus ulcers, pressure sores,
- Dehydration, and
- Failure to carry out physician's orders.
EADACPA claims are very complicated and document intensive, that is why you need to hire an attorney who understands how these facilities operate, what duties and responsibilities these facilities are responsible to adhering to as set forth by state and federal statutes, laws, and regulations, and understands how to read and analysis the resident's nursing chart. Accordingly, when hiring an attorney in this area of the law, it is important to ask the following questions:
- What percentage of your practice is dedicated to litigating cases against long term care facilities?
- Have you ever had a case against this particular facility or its parent company?
- How long have you been practicing in this area of the law?
- Do you have a team of medical consultants that you work when investigating or litigating these claims?
The answers you receive from these questions should give you a general idea of the attorney or law firm's experience in this area of the law.
Additionally, if someone suspects that their loved one is a victim of abuse or neglect, then it is important for them to contact the proper licensing agency where the alleged abuse or neglect is occurring.
If the wrongdoing is occurring or occurred in a nursing home (Skilled Nursing Facility or "SNF") then it is important to reach out to the California Department of Public Health (CDPH) as they are the California agency that is responsible for licensing and overseeing these types of facilities. Here is the CDPH's webpage for where to lodge a complaint if you suspect the abuse or neglect of an elderly in a nursing home:
If the wrongdoing is occurring or occurred in an assisted living facility (Residential Care Facility for the Elderly or "RCFE") then it is important to reach out to the California Department of Social Services/Community Care Licensing (DSS/CCL) as they are the California agency that is responsible for licensing and overseeing these types of facilities. Here is the DSS/CCL's webpage for where to lodge a complaint if you suspect the abuse or neglect of an elderly in an assisted living facility: