Wrongful Death – Elder Abuse

Under California law, the prevailing party in a wrongful death lawsuit cannot generally recover attorneys fees as part of the litigation. However, in some situations, the legislature has a desire to protect public policy and will enact laws that specifically provide for attorneys fees. The Elder Abuse and Dependent Adult Civil Protection Act is one of those situations that provides for attorneys fees to be included in a wrongful death situation.

Additionally, the general rule is that a claim for pain and suffering is a personal claim, and consequently inherited. Because it cannot be inherited as a matter of law, it is generally not permissible in a wrongful death action. However, the Elder Abuse and Dependent Adult Civil Protection Act has a special provision that allows for the recovery of the deceased’s pain and suffering.

Finally, the Elder Abuse and Dependent Adult Civil Protection Act does provide for punitive damages for certain wrongdoings, whereas punitive damages are not generally permitted in traditional wrongful death action.

To fall within the protections of the Elder Abuse and Dependent Adult Civil Protection Act, you must be either an “Elder” or a “Dependent Adult.” It is possible that you are both.

Under the Elder Abuse and Dependent Adult Protection Act, an elder is defined as anyone who is 65 years of age or older. The more complicated question is what constitutes a dependent adult? To qualify as a dependent adult under the Elder Abuse and Dependent Adult Civil Protection Act, the person must be between the ages of 18 and 64. In addition, they must be admitted as an inpatient to a 24-hour health facility.

In addition to being of the correct age and residence in a 24-hour health facility, they must also have physical or mental limitations that restrict their ability to carry out normal activities, or the limitations impact their ability to protect their rights. These limitations expressly include individuals whose disabilities have diminished because of age or illness.

Generally, to obtain the additional remedies against a care facility under the Elder Abuse and Dependent Adult Civil Act, you must show that the person was an adult-dependent or elderly within the definition and that they were living in the subject 24-hour care facility. Additionally, it must be shown that the caregiver or facility failed to use the degree of care a reasonable person would have used in the same situation in one of the following circumstances:

• Assisting in personal hygiene or in the provision of food, clothing, or shelter was a substantial factor in causing their wrongful death;
• Failing to protect the decedent from health and safety hazards was a considerable factor in causing their death; and
• Finally, it needs to be shown that the care facility acted with recklessness/oppression/fraud and/or malice in neglecting the decedent.

There is a higher standard of proof to receive the extra remedies under the Elder Abuse and Dependent Adult Civil Act than standard negligence that results in death, but less than the criminal standard for manslaughter or murder.

Under general laws for civil remedies in a wrongful death action, the standard of proof is by a preponderance of the evidence. This burden simply means that it is more likely to be true than not true.

In contrast, the burden of proof in criminal trials is beyond a reasonable doubt. This burden doesn’t mean that all doubt must be removed, but rather that a juror must reach an abiding conviction that the criminal charge is true.

For the additional remedies under the Elder Abuse and Dependent Adult Civil Act, the standard of proof is “clear and convincing.” This standard is greater than the preponderance of the evidence and less than beyond a reasonable doubt. Another way to think of clear and convincing evidence is that a jury must find that it is highly probable that the fact was true.

There are, however, some laws that exist that create exceptions to this rule. The most notable is the Elder Abuse & Dependent Adult Civil Protection Act. This legislation’s public policy objectives have enlarged some of the rights that heirs may have in a survivor’s action. If you suffered the loss of an elder or dependent adult from abuse, you should contact an Eason and Tambornini wrongful death attorney for a more thorough analysis of the rights that might exist.

The statute of limitations for a survival action is nearly identical to the statute of limitations for a personal injury action had the individual survived. Traditionally, the time period to bring an action starts at the time of the accident, not at the time of the death. The time period for many actions is two years; however, if the death was caused by the malpractice of a professional, such as a doctor, it might only be one year. Additionally, actions against government entities are often reduced to only six months!

The statute of limitations has many exceptions, and most of them have issues. If you suffered the loss of a loved one, you should speak with an Eason & Tambornini wrongful death attorney as soon as possible to avoid the statute of limitations from expiring and make sure that evidence isn’t lost or tampered with in the interim.

As you can see from above, a survivor action is very distinct from a wrongful death action. The benefits in a survival action are not intended to be duplicative of a wrongful death action, but rather to cover separate items. The parties to wrongful death actions and survival actions are usually the same, and thus wrongful death attorneys usually handle both at the same time. However, the statute of limitations to bring a survival action usually expires before a wrongful death action, so time is of the essence. If you believe you may have rights under a wrongful death action or a survival action, we encourage you to call one of our wrongful death attorneys for a free consultation.