We Protect the Elderly
"…to enable interested persons to engage attorneys to take up the cause of elderly persons and dependent adults." [purpose statement of California's elder abuse statute]
THE SCOPE OF THE ELDER ABUSE PROBLEM
In 1995 the Health Care Financing Administration issued federal regulations governing nursing home care, which has led to ever-increasing sanctions to enforce compliance with the minimum standards of care required for Medicaid reimbursements. Then in July 1998, the U.S. General Accounting office (GAO) issued a blistering report that cited nearly one-third of California's nursing homes for serious or potentially life-threatening problems. William J.Scanlon, the GAO's director of health financing and system issues, testified before the Senate Special Committee on Aging that "despite the presence of a considerable federal and state oversight infrastructure, a significant number of California nursing homes were not, and currently are not, sufficiently monitored to guarantee the safety and welfare of nursing home residents."
Of the 1,370 nursing homes the GAO evaluated, only 2 percent had minimal or no deficiencies that caused either death or serious harm or that resulted in less serious harm having a direct relationship to the health, safety, or security of a resident. The GAO's conclusions suggested that there was an abysmal return on the $2 billion Medicare and Medicaid paid to the state's nursing homes in 1997.
California's Elder Abuse and Dependent Adult Civil Protection Act [Welfare & Institutions Code §§ 15600 et seq.] dates back to 1982 when our legislature recognized "that dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect these persons." [Welfare & Institutions Code §15600(a)] California's legislature actually encourages litigation, "…to enable interested persons to engage attorneys to take up the cause of elderly persons and dependent adults."
In 1987, Congress passed the Omnibus Budget Reconciliation Act of 1987 that mandated that the HCFA, the agency responsible for administering Medicare and medicaid, tighten its oversight of nursing homes that are reimbursed with federal funds.
CALIFORNIA'S SUPREME COURT'S STANCE
In 1999 California's Supreme Court found health care professionals to be included under provisions of the state's elder abuse statute. A unanimous court held that it was fundamental public policy "to protect elder adults through application of heightened civil remedies from being recklessly neglected at the hands of their custodians, which includes the nursing homes or other health care facilities in which they reside." [Delaney v. Baker (1999) 20 Cal.4th 23, 41.]
DAMAGES AND REMEDIES AVAILABLE
The 1991 revision of California's statute provides damages, not only for the actual injuries suffered by the abused elder, but for pain and suffering damages even if the abuse victim dies (in most other tort schemes, pain and suffering claims die with the victim), and enables plaintiffs attorneys to recover fees if they win [Welfare & Institutions Code §15657(b)]
NEW ELDER ABUSE FORMS (4/20/00)
The California Judicial Council has approved six new forms for use in proceedings to obtain protective orders in cases involving elder or dependent adult abuse, effective April 1, 2000. The new forms implement Assembly Bill 59, which establishes procedures under which an elder or dependent adult in immediate and present danger of abuse may seek protective orders.