Pain and suffering and emotional distress damages survive death.

In most personal injury claims, a plaintiff's right to recover monetary damages for pain, suffering and emotional distress is eliminated if the plaintiff dies before a judgment is entered or a settlement is finalized.

However, the California legislature, recognizing that many plaintiffs will die before or during the course of an elder abuse case, has created an exception to the general rule and allows the heirs or survivors in an elder abuse case to be awarded damages for the pain and suffering and emotional distress that the elder incurred before he or she died.

However, in cases against health care providers, the post mortem recovery of pain and suffering damages is limited to $250,000 by MICRA.

Recovery of attorneys fees and costs in elder abuse cases.

One of the critical enhanced remedies of elder abuse cases is the ability of the plaintiff to be awarded attorneys fees and costs if he or she can prove elder abuse. This is critical because frequently attorneys fees in an elder abuse case will exceed the total amount of the judgment. This, as the legislature intended, gives attorneys more incentive to take on elder abuse cases when there is gross misconduct, but little provable damage from the misconduct.

In determining an attorney fee award, the court may look at:

• The value of the abuse-related litigation in terms of the quality of life of the elder or dependent adult and the results obtained.
• Whether the defendant took reasonable and timely steps to determine the likelihood and extent of liability.
• The reasonableness and timeliness of any written offer and compromise made by a party to the action.

If you are a concerned relative or friend of an elderly person that you believe is suffering from elder abuse in the Los Angeles area, we’d like to hear from you. Contact us online or call us at 818-756-2029 to set up a FREE consultation to discuss your legal options.