Tobener Ravenscroft

Elder Care Facilities

TENANT RIGHTS IN ELDER RESIDENCE FACILITIES

People who are elderly are often very vulnerable to abuse and neglect while residing in an elder residence facility. If you or a loved one is an elderly person suffering from abuse or neglect at the hands of an elder residence facility or its employees, you may be entitled to remedies under the law. The remedies available to elderly persons who have suffered, or continue to suffer, abuse and neglect while residing in an elder residence facility depend on various factors including the type of facility and the type of abuse suffered. Federal and state regulations provide guidelines that elder residence facilities must follow. If a facility does not adhere to federal and state regulations a resident may be entitled not only to compensatory and other remedies provided by the law, but also postmortem recovery for pain and suffering, mandatory attorney fees and costs, and triple damages.


TYPES OF ELDER RESIDENCY FACILITIES

California categorizes two types of elder residence facilities that may be the source of elder abuse and neglect: a Skilled Nursing Facility (often called a “nursing home”) and a Residential Care Facility for the Elderly (commonly referred to as “assisted living”). Each facility must follow a specific set of rules and regulations.

SKILLED NURSING FACILITIES

A Skilled Nursing Facility is defined by Health and Safety Code section 1250(c) as, “a health facility that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis.” Residents of Skilled Nursing Facilities depend on the facility’s operator and staff for nearly every aspect of their daily lives, including food, medicine, bedding, shelter, and health care. Despite the level of attention that must be paid to residents of Skilled Nursing Facilities, often times residents are abused and neglected. If a resident of a Skilled Nursing Facility has suffered or is suffering from abuse and neglect, he or she may be entitled to damages.

RESIDENTIAL CARE FACILITIES FOR THE ELDERLY

Residential Care Facilities for the Elderly are intermediate facilities between independent living and nursing homes. Health and Safety Code section 1569.2(k) defines a Residential Care Facility for the Elderly as, “a housing arrangement chosen voluntarily by persons 60 years of age or over, or their authorized representative, where varying levels and intensities of care and supervision, protective supervision, or personal care are provided, based upon their varying needs, as determined in order to be admitted and to remain in the facility.” Residential Care Facilities for the Elderly are very similar to Skilled Nursing Facilities and owe many of the same obligations to its residents as those owed by Skilled Nursing Facilities.

DIFFERENCES BETWEEN SNFs and RCFEs

The key difference between a Skilled Nursing Facility and a Residential Care Facility for the Elderly is that Skilled Nursing Facilities are licensed as health care providers while Residential Care Facilities for the Elderly are not. Because RCFEs are not licensed health care providers they are not subject to the Medical Injury Compensation Reform Act of 1975 (MICRA). However, both SNFs and RCFEs are subject to the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) (Welfare and Institutions Code sections 15600-15675). For EADACPA protection, it does not matter if the facility caring for elders is a health care facility. Delaney v. Baker, 20 Cal. App. 4th 23, 34 (1999).

APPLICABLE STATUTES AND DEFINITIONS

ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTECTION ACT (EADACPA)

The Elder Abuse and Dependent Adult Civil Protection Act is designed to “enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” Cal. Welf. & Inst. Code § 15600(j).  The EADACPA defines an elder as “any person residing in this state, 65 years of age or older.” Cal. Welf. & Inst. Code § 15610.27.

Under the EADACPA, abuse of an elder or dependent adult includes, “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering,” as well as, “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” Cal. Welf. Inst. Code § 15610.07.

Under the EADACPA neglect is “the failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” Cal. Welf. & Inst. Code § 15610.57(a)(1). Neglect includes, but is not limited to: failure to assist in personal hygiene or provide food, clothing, or shelter; failure to provide medical care; failure to protect from health and safety hazards; and failure to prevent malnutrition or dehydration. Cal. Welf. & Inst. Code § 15610.57(b).

SKILLED NURSING AND INTERMEDIATE CARE FACILITY PATIENTS’ BILL OF RIGHTS (Health and Safety Code sections 1599-1599.4)

The Skilled Nursing and Intermediate Care Facility Patients’ Bill of Rights was enacted to “expressly set forth fundamental human rights which all patients shall be entitled to in a skilled nursing, intermediate care facility, or hospice facility . . . and to ensure that patients in such facilities are advised of their fundamental rights and the obligations of the facility.” Cal. Health & Safety Code § 1599.

Health and Safety Code section 1599.1 guarantees a resident’s right to quality care by requiring that a nursing facility:

  • Employ adequate staff members;
  • Care for residents’ hygiene;
  • Reduce the incidence of incontinence and bedsores;
  • Provide food of adequate quantity and quality;
  • Provide an activity program that meets each resident’s needs; and
  • Maintain a nurses’ call system in good working order.

Health and Safety Code section 1599.1(i) adopts federal regulations regarding resident rights (42 C.F.R. § 483.10.), admission, transfer, and discharge rights (42 C.F.R. § 483.12.), and quality of life (42 C.F.R. § 483.15.) to all skilled nursing and intermediate care facilities regardless of the resident’s payment source or the Medi-Cal or Medicare certification status of the facility.

RESIDENTIAL CARE FACILITIES FOR THE ELDERLY ACT (Health and Safety Code sections 1569-1569.87; Cal. Code Regs. tit. 22 §§ 87100-87793)

All Residential Care Facilities for the Elderly are governed by the California Residential Care Facilities for the Elderly Act. All Residential Care Facilities for the Elderly must provide a resident with basic services including:

  •  Safe and healthy living accommodations and services;
  •  Three nutritious, well-balanced meals with snacks daily;
  •  Assistance with activities of daily living (dressing, bathing, eating, taking medication, etc.);
  •  Regular observation of residents’ physical and mental condition;
  •  Arrangements to meet residents’ health needs, including providing transportation;
  •  Social and recreational activities that meet a resident’s interests and capabilities;
  •  Assistance with access to supportive services;
  •  Awareness of the resident’s general whereabouts (residents may travel independently in the community);
  •  Monitoring a resident’s activities to ensure general health, safety, and well-being.

Health and Safety Code section 1569.312; Cal. Code Regs. tit. 22 §§ 87101(b)(2), 87464(f).

THEORIES OF RECOVERY              

Several causes of action exist against nursing homes and residential care facilities due to the many obligations imposed on these facilities by various federal and state statutes. Depending on an elderly person’s situation, one or more of the following causes of action may be available to obtain remedies:

NEGLIGENCE

A negligence action can be brought to recover damages for injury and emotional distress. Because of the extensive regulations governing nursing facilities and residential care facilities, plaintiffs are entitled to a presumption of negligence, under the doctrine of negligence per se. In other words, if a nursing home or assisted living facility violates one of the many regulations it has an obligation to follow, it may be presumed negligent without the need of establishing a community standard of care.

Negligence cases against Skilled Nursing Facilities, which are considered health care providers, may become medical malpractice actions and are subject to the limitations of the Medical Injury Compensation Reform Act (MICRA). A negligence action may also be based on lack of ordinary care, rather than professional care. Professional negligence cannot be claimed against a Residential Care Facility because these facilities are not considered health care providers. In an action for breach of ordinary care, MICRA limitations do not apply.

When the negligence of an elder residence facility causes a resident to suffer severe emotional distress, the resident may recover damages for worry, anxiety, frustration, embarrassment, and sleeplessness. A bystander who has a special relationship to a resident and personally observes bad care resulting in injury to the resident may also have a claim for emotional distress, resulting from witnessing the injury. See Thing v. La Chusa, 48 Cal. App. 3d 644, 667 (1989), which adopted Ochoa v. Super. Ct., 39 Cal. App. 3d 159 (1985).

ELDER ABUSE

An action for elder abuse is available under the Elder Abuse and Dependent Adult Civil Protection Act if the resident suffers, “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering,” or is deprived by a care custodian “of goods or services that are necessary to avoid physical harm or mental suffering.” Cal. Welf. Inst. Code § 15610.07.

The EADACPA sets out enhanced remedies for elder abuse actions. When a plaintiff can show by clear and convincing evidence that the defendant committed physical abuse or neglect, and the defendant acted with recklessness, oppression, fraud, or malice in committing the abuse, the court must award reasonable attorney fees. Cal. Welf. & Inst. Code § 15657. The plaintiff may also recover postmortem pain and suffering damages.

Under Civil Code section 3294 punitive damages are available if the plaintiff can show by clear and convincing evidence that the defendant acted with oppression, fraud, or malice. Punitive damages survive death. Cal. Civ. Proc. Code § 377.34. Also, Civil Code section 3345 allows triple punitive damages in elder abuse actions when the trier of fact makes an affirmative finding of any of the following factors:

  • Whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons.
  • Whether the defendant’s conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person.
  • Whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant’s conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct.

FINANCIAL ELDER ABUSE

The EADACPA protects elders from financial abuse. Under the EADACPA, financial abuse occurs when a person or entity:

  • Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
  • Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
  • Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue

Welfare and Institutions Code section 15610.30(a)(1)-(3).

The EADACPA makes enhanced remedies available for financial abuse of an elder. Under Welfare and Institutions Code section 15657.5, the court must award reasonable attorney fees and costs if financial abuse by the defendant is shown by a preponderance of the evidence. Under Welfare and Institutions Code section 15657.5(b), if it is shown by clear and convincing evidence that the defendant acted with recklessness, oppression, fraud, or malice in committing financial abuse, postmortem recovery of pain and suffering damages is available.

Punitive damages are available under Civil Code section 3294 if the plaintiff can show by clear and convincing evidence that the defendant acted with oppression, fraud, or malice. Punitive damages survive death. Cal. Civ. Proc. Code § 377.34. Also, as in elder abuse actions based on physical abuse or neglect, Civil Code section 3345 allows triple punitive damages in financial elder abuse actions.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Abuse by an elder residence facility may give rise to an intentional infliction of emotional distress action if:

  • Outrageous conduct by the facility or its employees beyond the bounds of decency is present such that no reasonable person should be expected to endure it;
  • Severe emotional distress is actually suffered by the resident;
  • The conduct of the facility was intentional or reckless; and
  • The conduct caused damages to the resident.

See generally 5 Witkin, Summary of California Law, Torts §§ 449-461 (10th ed 2005).

Under Welfare and Institutions Code section 15657, if recklessness, oppression, fraud, or malice is shown in an intentional infliction of emotional distress action, attorney fees and postmortem pain and suffering damages are available.

Punitive damages can be recovered under this theory if it is proven by clear and convincing evidence that the defendant acted with oppression, fraud, or malice. Cal. Civ. Code § 3294(a). Punitive damages may be tripled if statutory requirements are met under Civil Code section 3345.

BATTERY

When a resident of an elder resident facility suffers physical abuse, an action for battery may be available. A battery action requires an intentional, uncontested, and harmful or offensive contact with the person of a resident. See California Civil Jury Instruction 1300.

FRAUD/MISREPRESENTATION

In the context of an elder residence facility, misrepresentations to residents and family members are common. Instances of false advertising, misrepresentations to the family, falsified records, and broken promises may give rise to an action for fraud or misrepresentation.

UNFAIR, UNLAWFUL, OR FRAUDULENT BUSINESS PRACTICE

Business and Professions Code section 17200 of the Unfair Competition Law prohibits unlawful business acts or practices; unfair business acts or practices; fraudulent business acts or practices; unfair, deceptive, untrue, or misleading advertising; and any act prohibited by Business and Professions Code sections 17500-17577.5. Any person who has been injured has standing to pursue an action under the Unfair Competition Law. Cal. Bus. & Prof. Code § 17204.

Under Business and Professions Code section 17203, “[t]he court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.”

Though only equitable remedies are available under this theory, substantial monetary recovery may be available under the remedy of restitution. Kraus v. Trinity Mgmt. Servs., 23 Cal. App. 4th 116 (2000). Remedies for unfair, unlawful, or fraudulent business practices are cumulative to each other and to other remedies available under other laws. Cal. Bus. & Prof. Code § 17205. When acts of unfair competition are perpetrated against seniors or disabled persons, Business and Professions Code section 17206.1 allows addition civil penalties of up to $2,500 for each violation.

Attorney fees may be available under Code of Civil Procedure section 1021.5, which authorizes an award of attorney fees when the action results in enforcement of a right affecting the public interest. See Hewlett v. Squaw Valley Ski Corp., 54 Cal.App.4th 499, 543 (1997).

DECEPTIVE PRACTICE UNDER CONSUMERS LEGAL REMEDIES ACT

Under the Consumer Legal Remedies Act it is unlawful for a nursing facility to advertise that services will be of a particular standard, quality, or grade if they are of another standard, quality, or grade. Cal. Civ. Code § 1770(a)(7). A nursing facility represents that it meets licensing standards for the services it provides. If the nursing home does not meet the proper standard, an action under the Consumer Legal Remedies Act may be available.

The Consumer Legal Remedies Act provides substantial remedies including actual damages, an order enjoining the illegal practice, restitution, punitive damages, and any other relief the court deems proper. Cal. Civ. Code § 1780. Triple actual damages are available under Civil Code section 1780(c) when an unreasonable fee is charged to aid in the procurement of social services. Treble damages are also available when a senior or disabled person is the victim of unfair or deceptive business practices under Civil Code section 3345(b). In addition, a consumer who is 65 years of age or older, or is disabled, may be awarded $5,000 upon certain findings of the court under Civil Code section 1780(b), and a prevailing plaintiff will be awarded attorney fees and costs under Civil Code section 1780(e).

VIOLATIONS OF PATIENTS’ RIGHTS

Health and Safety Code section 1430 gives a current or former resident of a Skilled Nursing Facility standing to sue for violations of a resident’s rights provided by federal or state statutes.

Health and Safety Code section 1430(b) makes a violator of a patient’s rights liable for up to $500 per violation, for attorney fees and costs, and the violator may be enjoined from continuing the violation.

CAUSE OF ACTION UNDER PENAL CODE SECTION 368

A violation of a criminal statute embodying a public policy is generally actionable even if no specific civil remedy is provided in the criminal statute. See Civ. Code §1428. A crime victim may bring a civil action against the perpetrator of the crime when the victim is in the category of persons intended to be protected by the criminal statute. See Angie M. v. Super. Ct., 37 Cal. App. 4th 1217, 1224 (1995).

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