Elder Abuse During the COVID-19 Pandemic

Generally speaking, plaintiffs should bring an elder abuse case within one year of the date that they discover an injury from the abuse. However, to be safe, the case should be brought within one year of the first act of abuse, although the statute of limitations may be extended past one year if the plaintiff was mentally incapacitated or failed to discover an injury. 

In California, punitive damages may also be awarded upon proof of clear and convincing evidence of oppression, fraud and malice. California Civil Code, Section 3294(a). These damages are frequently the most significant element of the damage claim in an elder abuse case since almost by definition, conduct that rises to the level of elder abuse also rises to conduct which, under California law, is worthy of a punitive damage award. 

For the remedies under the EADACPA to be available, it must be proved by clear and convincing evidence that the defendant is liable for physical abuse, neglect or fiduciary abuse AND that the defendant has been guilty of recklessness, oppression, fraud and malice in the commission of the abuse. There is no statutory definition for the term “recklessness,” however, recklessness is generally described as something more than negligence. It must not only be unreasonable, but it must invoke a risk of harm to others substantially in excess of that which is necessary to make conduct negligent.

Under the Code, neglect can be defined as: (i) The negligent 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; or (ii) The negligent failure to exercise that degree of care that a reasonable person in a like position would exercise.  More specifically, neglect can include a failure to assist in personal hygiene, or in the provision of food, clothing or shelter, failure to provide medical care for physical and mental health needs, and failure to protect from health and safety hazards.

The elder abuse protections apply to both “elders,” a person residing in California who is 65 years of age or older and “dependent adults” who are defined as any person residing in California between the ages of 16 and 64 who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights. 

The following people can bring an action for elder abuse: (i) An elder or dependent individual who is living; (ii) The elder’s or dependent individual’s estate or successors in interest in a survival action if death has occurred; or (iii) The elder’s or dependent individual’s family members if they witnessed the elder abuse.

Elder abuse law in California is governed largely by codified law known as the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). Abuse under an EADACPA claim in a civil action includes “physical abuse, neglect, abuse, abandonment, isolation or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services which are necessary to avoid physical harm or mental suffering.” California Welfare and Institution Code, Section 15610.07.

While medical malpractice claims are viable in potential lawsuits against senior care facilities and nursing homes, including skilled nursing operations, such actions in California fall under the Medical Injury Compensation Reform Act (MICRA), which has serious limitations for Plaintiffs, especially when the applicable victim has limited or no quantifiable future earnings due to age and circumstances at the time of injury.  Nevertheless, those whose loved ones may have experienced COVID-19 related negligence, may have another, more powerful claim under the Act known as EADACPA, which concerns elder abuse.