California Nursing Home Abuse

Nursing home abuse is the crime of California elder abuse, committed against residents of nursing homes.

Nursing home abuse in California can consist of any of the following, directed at someone who is sixty-five (65) years of age or older:

  • Physical abuse (including various forms of California battery);
  • Sexual abuse;
  • Emotional abuse (including isolation or ridicule);
  • Neglect and endangerment (willfully placing the elderly person in a situation where his/her health or safety is endangered); and/or
  • Financial exploitation or abuse (also known as “senior fraud”).1

California nursing home charges can be brought against both:

  • People who work directly with the elderly as caregivers at nursing homes (such as nurses, certified nursing assistants, etc.); and
  • Administrators or other people responsible for supervising nursing home staff.2
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Nursing home abuse in California can take various forms.

Examples

Here are some examples of situations where nursing home abuse criminal charges might be filed:

  • A certified nursing assistant slaps and pinches an elderly woman with dementia who lives at the nursing home.
  • A supervisor at a nursing home allows the staff to forcibly administer psychotropic drugs to residents for the staff's own convenience rather than the residents' needs.
  • A male nurse at a nursing home commits sexual battery against several female residents who are confined to wheelchairs.

Penalties

In cases where the victim defendant's actions were likely to cause great bodily injury or death, California nursing home abuse is what is known as a “wobbler” in California law. This means that it may be charged as either a California misdemeanor or a California felony.3

Misdemeanor nursing home abuse is punishable by:

  • Up to one (1) year in county jail; and/or
  • A fine of up to six thousand dollars ($6,000).4

For felony nursing home abuse, the potential penalties include:

  • Two (2), three (3) or four (4) years in California state prison, with an extra three (3) to seven (7) year sentence enhancement if the victim actually suffers great bodily injury; and/or
  • A fine of up to ten thousand dollars ($10,000).5

In cases where the defendant's behavior was unlikely to cause great bodily injury or death, nursing home abuse is typically charged as a misdemeanor.6

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The right legal defense can help you fight nursing home abuse charges.

Legal defenses

If you are charged with nursing home abuse, your first move should be to find a California criminal defense attorney who knows the law cold—and knows the best way to defend against these charges.

Some common legal defenses that can be helpful against nursing home abuse charges include:

  • You were falsely accused;
  • There is not enough evidence to convict; and/or
  • You were the victim of mistaken identity.

In order to help you better understand California aggravated battery law, our California criminal defense attorneys will address the following:

1. Legal Definition of California Nursing Home Abuse

2. Investigation of California Nursing Home Abuse Cases

3. Penalties for Nursing Home Abuse

3.1. Circumstances likely to cause great bodily injury or death
3.2. Circumstances not likely to cause great bodily injury or death
3.3. Financial elder abuse

4. Legal Defenses to Nursing Home Abuse Charges

5. California Nursing Home Abuse and Related Offenses

5.1. Penal Code 242 PC battery
5.2. California sex crimes
5.3. Penal Code 192 PC involuntary manslaughter / Penal Code 187 PC murder
5.4. Medi-Cal fraud
5.5. Penal Code 401 PC aiding a suicide

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. Legal Definition of California Nursing Home Abuse

Nursing home abuse in California takes place when one of the following occurs at a California nursing home or assisted living facility, where the victim is sixty-five (65) or older:

  1. Physical abuse (including willfully inflicting unjustifiable pain or suffering on an elder, unlawfully restraining an elder, improperly administering an elder's drugs, or sexually abusing an elder);7
  2. Neglect (willfully placing the elder in a dangerous situation);
  3. Emotional abuse; or
  4. Financial abuse (defined as the mismanagement of an elder's money or property or the violation of any law proscribing theft, embezzlement, etc.).
    Img-elder-abuse-pills
    Improper administration of medication can be a form of physical nursing home elder abuse.

Example: Patricia is a registered nurse who works in a high-end nursing home.

One of the residents she cares for is a man named Alonzo who has severe Alzheimer's disease. Alonzo frequently tries to escape from the nursing home and engages in other kinds of dangerous and disruptive behavior.

Alonzo requires so much attention that Patricia finds it hard to give adequate attention to the other residents under her care. Finally Patricia decides to start administering sedatives to Alonzo so that she can get a break from his difficult behavior.

This is a form of physical nursing home abuse.

Example: George is a certified nursing assistant who works the night shift in a nursing home that is badly understaffed. He is not well-paid and is dealing with multiple problems in his personal life.

One of George's duties is to change the clothes and bedding of patients who soil themselves. He frequently puts this off or fails to do it altogether—which means that some of his patients sit in their own urine or feces for a long time. Some of them get bedsores or rashes because of this.

This is a form of nursing home abuse through neglect.

Example: Lorraine is a retired college professor who suffers from multiple sclerosis and lives in a nursing home. Her mind is sharp, but her physical abilities have declined significantly.

Chelsea is a nurse who cares for Lorraine at the nursing home. Chelsea has taken a personal dislike to Lorraine. She taunts her mercilessly about her inability to walk and excludes her from activities with the other residents. Because of this, Lorraine suffers from severe depression.

Chelsea is committing emotional nursing home abuse.

Example: Paul is the owner and manager of a small nursing home that cares for a lot of patients with severe dementia. His profit margins are slim, and he can't afford to pay his employees much.

But when residents' families bring or send them expensive gifts, the staff members often take them—and the residents usually don't notice. Paul knows that this is common in his nursing home and looks the other way because it keeps his employees from complaining about their low pay.

This is a form of nursing home abuse through elder fraud.

2. Investigation of California Nursing Home Abuse Cases

California nursing home elder abuse investigations involve a variety of agencies.

When an elder patient or a friend/family member decides to initiate a complaint, they typically do so with their local ombudsman's office. An "ombudsman" is an advocate that represents those living in long-term care facilities.

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The California Department of Aging investigates reports of nursing home abuse in California.

The California Department of Aging operates the ombudsman program in this state. Once the ombudsman receives a complaint about nursing home elder abuse, it conducts an investigation. The local ombudsman may speak to any or all of the following:

  • The resident who is the alleged victim;
  • The person(s) who filed the complaint;
  • The nursing home's staff; and/or
  • The nursing home's administration.

The ombudsman generally will visit the nursing home in question to do an on-site investigation as well.

If, after conducting its investigation, the ombudsman believes that it has received a legitimate complaint, it forwards the case to the California Department of Public Health. After this agency conducts its investigation, it may:

  1. Pursue civil penalties against the nursing home or nursing home employee in question; and/or
  2. Refer the case to the local district attorney's office or to the California Attorney General's Bureau of Medi-Cal Fraud and Elder Abuse for a criminal investigation.

It should be noted that if the person reporting the suspected nursing home elder abuse is a mandated reporter, s/he must report the abuse both to the local ombudsman's office and to a local law enforcement agency.

"Mandated reporters" are those who, by law, must report all instances of suspected nursing home abuse. Staff and administrators of nursing homes are mandated reporters.9

3. Penalties for Nursing Home Abuse

3.1. Circumstances likely to cause great bodily injury or death

If elder abuse in a nursing home is committed under circumstances likely to cause great bodily harm or death, what is known as a “wobbler.” This means that the prosecutor can choose to file charges for this crime as a misdemeanor or as a felony.10 

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Nursing home abuse is either a misdemeanor or a wobbler, depending on the circumstances.

(“Great bodily injury/harm” is defined as a significant or substantial physical injury.11)

The decision as to how to file nursing home abuse charges is left to the prosecutor's discretion. S/he may make the decision based on:

  1. The facts of the case, and
  2. The criminal history of the defendant.

When nursing home abuse under these conditions is charged as a misdemeanor, the potential penalties include:

And for felony nursing home abuse in these circumstances, the potential penalties are:

If the victim of felony nursing home abuse actually suffers great bodily injury, the defendant will also face an additional term in the state prison of three (3) years if the victim is under seventy (70), and five (5) years if the victim is 70 or older.14

And if the victim actually dies, then the defendant faces an additional state prison term of five (5) years if the victim was under 70, and seven (7) years if s/he was 70 or older.15

3.2. Circumstances not likely to cause great bodily injury or death

Physical, emotional or neglect forms of elder abuse, under circumstances not likely to cause great bodily injury or death, will always be a California misdemeanor.16

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Significant jail sentences are not uncommon in California nursing home abuse cases.

The penalties will be up to six (6) months in county jail and/or a fine of up to one thousand dollars ($1,000) for a first offense.17

Second and subsequent offense can lead to up to one (1) year in county jail and/or a fine of up to two thousand dollars ($2,000).18

3.3. Financial elder abuse

Financial elder abuse in a nursing home by a caretaker is a misdemeanor when the value of the money or property taken is no more than nine hundred fifty dollars ($950). The potential penalties are up to one (1) year in county jail, and/or a fine of up to one thousand dollars ($1,000).19

Nursing home elder fraud becomes a wobbler when the value of the money or property taken exceeds $950. The felony penalties are two (2), three (3) or four (4) years in county jail, and/or a fine of up to ten thousand dollars ($10,000).20

4. Legal Defenses to Nursing Home Abuse Charges

The following legal defenses may be helpful if you are charged with nursing home abuse in California

False accusations / wrongful arrest

Because many people have mixed feelings about putting their loved ones in nursing homes, they often assume that anytime a resident is unhappy or injured it is because s/he was abused. While this is sometimes the case, it certainly isn't always.

Elders tend to bruise, fall and break bones more easily than younger individuals. Elders who are in nursing homes also frequently suffer from dementia, senility, and other illnesses that render them unable to distinguish fact from fiction.

Add to this the fact that they may dislike an employee or suffer from paranoia about the staff, and the potential for false accusations and wrongful arrests skyrockets.

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False accusations of nursing home abuse are common.

False accusations are also many times alleged against nursing home employees by other employees or by the elder's so called "friends" or family members trying to cover up their own acts of abuse.

Insufficient evidence

Another defense along these same lines is insufficient evidence. If there is no proof that you are directly responsible for physical or financial elder abuse or that you neglected to care for an elder patient, you must be acquitted of this charge.

Similarly, if the prosecutor can't prove that as the nursing home owner you condoned or even knew abuse was taking place, you aren't guilty of this charge.

Mistaken identity

And, unfortunately, the reality is that nursing home elder abuse does take place—but that doesn't mean that you are the responsible party.

Maybe you're the abused elder's "regular" caretaker, so people assume you were the one abusing the elder (even though it was really a different employee).

Maybe money or other property was taken from an elder's belongings and you were blamed simply because you were on duty when the crime apparently occurred.

There are countless reasons why you could have been mistakenly identified as an abuser. As San Francisco criminal defense attorney Neil Shouse21 explains:

"It's my job in these situations to convince the prosecutor, judge, and jury that you have a legitimate alibi—and while it's certainly devastating that an elder was abused, you were not the person responsible."

5. California Nursing Home Abuse and Related Offenses

Offenses that can be closely related to California nursing home abuse include:

5.1. Penal Code 242 PC battery
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Battery is sometimes charged along with nursing home abuse.

California Penal Code 242 PC battery is the unlawful and willful use of force or violence upon another.22 Intentionally using force or violence upon a nursing home patient could result in a battery charge.

5.2. California sex crimes

If you engage in any nonconsensual sexual activity with an elderly patient, prosecutors could charge you with a variety of California sex crimes, such as:

These types of offenses are most frequently alleged when the elderly patient is unable to communicate or resist a nurse or other employee's sexual advances.

5.3. Penal Code 192 PC involuntary manslaughter / Penal Code 187 PC murder

If you are accused of willfully killing an elder patient—or are accused of causing the death of an elder due to your criminal negligence—prosecutors could charge you with either California Penal Code 187 PC murder or California Penal Code 192 PC involuntary manslaughter.

5.4. Medi-Cal fraud

If, for example, you

  • bill Medi-Cal for unauthorized or unperformed services,
  • bill Medi-Cal for unnecessary drugs or supplies, or
  • allow uncertified assistants to treat patients, billing Medi-Cal as if a doctor was treating the patient,

prosecutors could charge you with Medi-Cal fraud.

5.5. Penal Code 401 PC aiding a suicide

Elderly people suffering from terminal or painful chronic illnesses sometimes contemplate suicide. But if a caregiver at a nursing home encourages a resident to kill him/herself, or deliberately helps him/her do so, that person could be charged with Penal Code 401 PC aiding or encouraging a suicide.23

As with nursing home abuse, caregivers at nursing homes are often unfairly charged with this crime when something goes wrong with an elderly patient--and relatives are looking for someone to blame.

Aiding a suicide is a felony, with a potential state prison sentence of up to three (3) years.24

Call us for help…

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For questions about California nursing home abuse laws, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on Nevada elder abuse laws, please see our page on Nevada elder abuse laws.

Legal References:


1 Penal Code 368 PC – Crimes against elder or dependent adults [nursing home abuse law]. (“(b)(1) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years. . . . (c) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. . . . (e) Any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as follows: (1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950). (2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950). (f) Any person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years. (g) As used in this section, “elder” means any person who is 65 years of age or older. . . . (i) As used in this section, “caretaker” means any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.”)

See also Welfare and Institutions Code 15610.07 WIC – Abuse of an elder or a dependent adult [including nursing home elder abuse]. ("”Abuse of an elder or a dependent adult" means either of the following: (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.")

2 See, e.g., Brown Files Criminal Charges Against Former Nursing Home Administrator in Kern Valley Elder Abuse Case, California Office of the Att'y General Press Release, Sept. 8, 2009.

3 Penal Code 368 PC – Crimes against elder or dependent adults [nursing home abuse law], endnote 1, above.

4 See same.

See also Penal Code 672 PC – Offenses for which no fine prescribed [such as nursing home abuse]; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”)

5 Same.

6 Same.

7 California Welfare and Institutions Code 15610.63 WIC – Physical elder abuse [form of nursing home abuse]. (""Physical abuse" means any of the following: (a) Assault, as defined in Section 240 of the Penal Code. (b) Battery, as defined in Section 242 of the Penal Code. (c) Assault with a deadly weapon or force likely to produce great bodily injury, as defined in Section 245 of the Penal Code. (d) Unreasonable physical constraint, or prolonged or continual deprivation of food or water. (e) Sexual assault, that means any of the following: (1) Sexual battery, as defined in Section 243.4 of the Penal Code. (2) Rape, as defined in Section 261 of the Penal Code. (3) Rape in concert, as described in Section 264.1 of the Penal Code. (4) Spousal rape, as defined in Section 262 of the Penal Code. (5) Incest, as defined in Section 285 of the Penal Code. (6) Sodomy, as defined in Section 286 of the Penal Code. (7) Oral copulation, as defined in Section 288a of the Penal Code. (8) Sexual penetration, as defined in Section 289 of the Penal Code. (9) Lewd or lascivious acts as defined in paragraph (2) of subdivision (b) of Section 288 of the Penal Code. (f) Use of a physical or chemical restraint or psychotropic medication under any of the following conditions: (1) For punishment. (2) For a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the State of California, who is providing medical care to the elder or dependent adult at the time the instructions are given. (3) For any purpose not authorized by the physician and surgeon.") If a nurse or other caregiver inflicts this type of punishment on a nursing home resident, s/he violates California nursing home elder abuse law.

8 Penal Code 368 PC – Crimes against elder or dependent adults [nursing home abuse law], endnote 1, above.

9 Welfare and Institutions Code 15630 WIC – Mandated reporters. (“ [Nursing home abuse mandated reporters include] a) Any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency . . . .")

10 Penal Code 368 PC – Crimes against elder or dependent adults [nursing home abuse law], endnote 1, above.

11 Penal Code 12022.7 PC – Definition of great bodily injury/harm [applies to nursing home abuse penalties]. (“(f) As used in this section, “great bodily injury” means a significant or substantial physical injury.”)

12 Penal Code 368 PC – Crimes against elder or dependent adults [nursing home abuse law], endnote 1, above.

13 Same.

See also Penal Code 672 PC – Offenses for which no fine prescribed [such as nursing home abuse]; fine authorized in addition to imprisonment, endnote 4, above.

14 Penal Code 368 PC – Crimes against elder or dependent adults [nursing home abuse law]. (“(b)(2) If in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows: (A) Three years if the victim is under 70 years of age. (B) Five years if the victim is 70 years of age or older. (3) If in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows: (A) Five years if the victim is under 70 years of age. (B) Seven years if the victim is 70 years of age or older.”)

15 Same.

16 Penal Code 368 PC – Crimes against elder or dependent adults [nursing home abuse law], endnote 1, above.

17 Same.

18 Same.

19 Same.

20 Same.

21 San Francisco criminal defense attorney Neil Shouse is the founder and Managing Attorney of Shouse Law Group.

22 Penal Code 242 PC – Battery defined [related offense to nursing home abuse]. (“A battery is any willful and unlawful use of force or violence upon the person of another.”)

23 Penal Code 401 PC -- Aiding a suicide [related offense to nursing home abuse].

24 Same.

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