Victims of nursing home abuse in California have several remedies to recover damages and force remedial action. These include filing a lawsuit against the nursing home facility, reporting the abuse to the California Department of Aging, or filing a police report and seek criminal charges.
Who can file a claim for nursing home abuse?
In California, seniors and dependent adults are protected by the “Elder Abuse and Dependent Adult Civil Protection Act (EADACPA).”1
The act defines a “senior” as a person age 65 or older who resides in California. It defines a “dependent adult” as any 16-64-year-old California resident with physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.2
A victim who is able can file suit on his or her own behalf. Or the victim’s family can step in and file the suit or report on behalf of the victim.
Damages for nursing home abuse in California
Compensatory damages for nursing home abuse can include (but are not limited to):
- Increased medical bills,
- Hospital expenses,
- Extra long- or short-term care (such as an extra nursing assistant),
- Medical equipment,
- Psychological counseling,
- Emotional distress,
- Pain and suffering, and
- Attorney’s fees and costs of bringing suit.
In some cases, where there is regular or systematic abuse, a California class action for nursing home abuse may be appropriate.
What type of abuse can an elderly person sue for?
Nursing home abuse in California can consist of any of the following, if directed at a senior or dependent adult:
- Physical abuse (including various forms of California battery);
- Sexual assault or 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”).4
Additionally, if the abuse led to the senior’s death, the heirs or family may be able to bring a survivor’s action or a wrongful death lawsuit in California.
Who can be sued for or charged with nursing home abuse?
Both civil lawsuits and criminal charges for California nursing home abuse can be brought against:
- People who work directly with the elderly as caregivers at nursing homes (such as nurses, certified nursing assistants, etc.);
- Administrators or other people responsible for supervising nursing home staff, and/or
- In some cases, the owners or operators of the nursing home.5
Examples of nursing home abuse in California
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.
To help you better understand remedies for nursing home abuse, our California personal injury lawyers discuss, below:
- 1. The legal definition of California nursing home abuse
- 2. Remedies for abuse of elders and dependent adults
- 3. Civil lawsuits for nursing home abuse in California
- 4. Government investigation of California nursing home abuse cases
- 5. Criminal Penalties for nursing home abuse
- 6. Legal defenses to nursing home abuse charges and lawsuits
- 7. California nursing home abuse and related offenses
1. Legal Definition of California Nursing Home Abuse
Nursing home abuse occurs when a victim age 65 or older experiences one or more of the following at a California nursing home or assisted living facility:
- 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);6
- Neglect (willfully placing the elder in a dangerous situation);
- Emotional abuse; or
- Financial abuse (defined as the mismanagement of an elder’s money / property or the violation of any law against theft, embezzlement, etc.).7
Example: Patricia works at a 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. Remedies for abuse of elders and dependent adults
People who suspect that a family member is being abused in a nursing home have a number of possible remedies. They can:
- File a civil lawsuit for damages in the California superior court where the abuse occurred;
- Seek an elder abuse investigation by a government agency; and/or
- Report the abuse to the police for possible criminal prosecution.
Elders and their family do not have to choose one over the other but can do more than one.
To help you decide which remedies are best for you, let’s take a closer look at them one by one.
3. Civil lawsuits for nursing home abuse in California
Lawsuits against nursing homes and/or their employees typically require the plaintiff to prove three things:
- The victim of the abuse was age 65 or older or was a “dependent adult” under California law;
- The defendant abused the victim;
- As a result of the abuse, the victim suffered damages.8
To prove the case your California injury attorney will usually have to file a lawsuit in order to obtain “discovery” of documents and information from the nursing home.
Your attorney will review the file and interview potential witnesses and, if possible, the victim him- or herself.
Because it can take several years for a case to be resolved if it goes to trial, your attorney may try to seek an out-of-court settlement with the wrongdoer(s). If an acceptable settlement can not be reached, the case will go to trial in front of a jury.
In addition to damages, your lawyer may seek an injunction (court order) prohibiting the nursing home from engaging in dangerous practices.
To learn more, please see our page on Lawsuits by Victims of Crimes in California.
4. Government 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.
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:
- Pursue civil penalties against the nursing home or nursing home employee in question; and/or
- 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
5. Criminal penalties for nursing home abuse
5.1. 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
“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:
- The facts of the case, and
- The criminal history of the defendant.
When nursing home abuse under these conditions is charged as a misdemeanor, the potential penalties include:
- Misdemeanor (summary) probation;
- Up to one (1) year in county jail; and/or
- A fine of up to six thousand dollars ($6,000).12
And for felony nursing home abuse in these circumstances, the potential penalties are:
- Felony (formal) probation;
- Two (2), three (3), or four (4) years in state prison; and/or
- A fine of up to ten thousand dollars ($10,000).13
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
5.2 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
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
5.3. 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
6. Legal defenses to nursing home abuse charges and lawsuits
The following legal defenses may be raised in response to criminal charges or civil allegations of 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.
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.
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.
And, unfortunately, the reality is that nursing home elder abuse does take place—but identifying the responsible party can be tricky.
Sometimes people assume the abused elder’s “regular” caretaker was 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 another person were blamed simply because that person was on duty when the wrong apparently occurred.
There are countless reasons why someone could have been mistakenly identified as an abuser.
7. Related offenses
Offenses that can be closely related to California nursing home abuse include:
7.1. Penal Code 242 PC battery
California Penal Code 242 PC battery is the unlawful and willful use of force or violence upon another.21 Intentionally using force or violence upon a nursing home patient could result in a battery charge.
7.2. California sex crimes
If you engage in any non-consensual sexual activity with an elderly patient, prosecutors could charge you with a variety of California sex crimes, such as:
- Penal Code 243.4 PC sexual battery;
- Penal Code 261 PC rape; and
- Penal Code 287 oral copulation by force or fear.
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.
7.3. 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.
7.4. 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.
7.5. 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.22
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.23
Abused in a nursing home? Call us for help…
For questions about California nursing home abuse laws, or to discuss your case confidentially with one of our California personal injury or criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local 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.
- California Welfare and Institutions Code 15630 et seq.
- Welfare and Institutions Code 15610.23 — (a) “Dependent adult” means any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age. (b) “Dependent adult” includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
- California Civil Code 3294.
- California Welfare and Institutions Code Section 15610.07; Penal Code 368 PC.
- See, e.g., Brown Files Criminal Charges Against Former Nursing Home Administrator in Kern Valley Elder Abuse Case, California Office of the Attorney General Press Release, Sept. 8, 2009.
- California Welfare and Institutions Code 15610.63.
- Penal Code 368 PC, end note 4.
- See California Civil Jury Instructions (CACI) Series 3100 – Elder Abuse and Dependent Adult Civil Protection Act.
- Welfare and Institutions Code 15630, end note 1.
- Penal Code 368 PC, end note 4.
- Penal Code 12022.7.
- Penal Code 368, end note 4.
- Same. See also Penal Code 672.
- Penal Code 368, end note 4.
- Penal Code 242.
- Penal Code 401.