To Sustain an Elder Abuse Claim, Read the Pleading Requirements

infections and bed sores in the elderlyWhat Are The Pleading Requirements To Sustain An Elder Abuse Cause of Action in the State of California? The Pleading Requirements to Assert a Violation of the Elder Abuse Act

The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of a person that is 65 years of age or older. (Welf. & Inst. Code, §§ 15610.27, 15657.) A plaintiff must prove by “clear and convincing evidence” that a defendant is liable for physical abuse, neglect, or financial abuse (as defined by the Elder Abuse Act) and the defendant acted with “recklessness, oppression, fraud, or malice” while committing the abuse. (Welf. & Inst. Code, §15657.)
Neglect, as defined in the Elder Abuse Act, includes the failure “to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1).) Neglect includes, failure to assist in personal hygiene or in the provision of food; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration. (Id., subd. (b).) The “statutory definition of `neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) Thus, acts of negligence in the rendition of medical services are not governed by the Elder Abuse Act. (Delaney v. Baker (1999) 20 Cal.4th 23, 34.)
Recklessness is not defined in the Elder Abuse Act, but in this context it is “a subjective state of culpability greater than simple negligence, which has been described as a `deliberate disregard’ of the `high degree of probability’ that an injury will occur[.]” (Delaney v. Baker, supra, 20 Cal.4th at p. 31.) “Recklessness, unlike negligence, involves more than `inadvertence, incompetence, unskillfulness, or failure to take precautions’ but rather rises to the level of a `conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’ [Citation].” (Id. at pp. 31-32.)
To recover for enhanced remedies under the Elder Abuse Act from an employer for the acts of one or more employees, a plaintiff must plead and prove facts that would permit imposition of punitive damages against an employer pursuant to Civil Code section 3294, subdivision (b). (Welf. & Inst. Code, § 15657, subd. (c).) Civil Code section 3294 imposes punitive damages on a corporate employer if (1) “the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others”; or (2) the employer “ratified the wrongful conduct”; and (3) the conduct described above was “on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)
The court in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, reviewed the cases applying the foregoing legal principles as construed in case law to determine the pleading requirements sufficient to state a cause of action for a violation of the Elder Abuse Act. The plaintiff must allege facts establishing that the defendant: “(1) had responsibility for meeting the basic needs of the elder or dependent adult,” including nutrition, hydration, hygiene, or medical care; “(2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs”; and “(3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain . . . or with conscious disregard of the high probability of such injury . . . .” (Id. at pp. 406-407.) The plaintiff must also allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering, and the causal link between the neglect and injury must be specifically alleged. (Id. at p. 407.)

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