BILL ANALYSIS Ó
SB 558
Page 1
Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 558 (Simitian) - As Amended: May 3, 2011
SENATE VOTE : 21-14
SUBJECT : Elder and Dependent Adult Abuse or Neglect: STANDARD
OF PROOF
KEY ISSUE : IN ORDER TO BETTER PROTECT ELDER AND DEPENDENT
ADULTS FROM HARM, SHOULD THE EVIDENTIARY STANDARD OF PROOF FOR
ABUSE OR NEGLECT CASES BE REDUCED FROM THE HEIGHTENED CLEAR AND
CONVINCING STANDARD TO THE MORE TYPICAL PREPONDERANCE OF THE
EVIDENCE STANDARD?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill, sponsored by California Advocates for Nursing Home
Reform, California Alliance for Retired Americans, Congress of
California Seniors and Consumer Attorneys of California, changes
the evidentiary standard of proof for elder and dependent abuse
or neglect cases brought under the Elder Abuse and Dependent
Adult Civil Protection Act (EADACPA) from clear and convincing
to preponderance of the evidence. This bill also clarifies that
punitive damages may not be imposed against an employer unless
the requirements for exemplary damages against employers are
satisfied. However, under this bill, these higher requirements
would not apply to the recovery of compensatory damages or
attorney's fees and costs against employers.
Supporters include the Alzheimer's Association, Consumer
Federation of California, California Nurses Association, the
County Welfare Directors Association, and the Peace Officers
Research Association of California. Supporters believe that the
clear and convincing standard has created an unnecessarily high
hurdle that often makes it unreasonably difficult to prove
damages, particularly for elderly and dependent adults who, due
to their disabilities, may not be able to verbalize adequately
what happened to them in order to satisfy the clear and
convincing standard. Supporters believe that the more typical
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preponderance of the evidence standard will better protect this
very vulnerable population.
Opponents include Aging Services of California, California
Association of Health Facilities, California Association of
Professional Liability Insurers, California Chamber of Commerce,
the Civil Justice Association of California and the California
Medical Association. They argue that this bill will not improve
care for elderly and dependent adults, but instead ignores the
vigorous protections already in place in California for
long-term care patients, will only increase costs for patients
and the state, and will result in an end run around the Medical
Injury Compensation Reform Act (MICRA).
SUMMARY : Changes the standard of proof required for an action
for abuse or neglect of an elder or dependent adult.
Specifically, this bill :
1)Changes the standard of proof required in elder or dependent
adult physical abuse or neglect cases brought under EADACPA
from clear and convincing to a preponderance of the evidence.
2)Requires a plaintiff, in order to receive punitive damages
against an employer for the acts of an employee under #1
above, to make a showing of clear and convincing evidence that
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 authorized or ratified the
wrongful conduct for which the damages are awarded or was
personally guilty of oppression, fraud, or malice. Does not
require this showing to receive compensatory damages or
attorney's fees and costs.
3)Provides that the changes made by this bill are not intended
to affect the standard of proof for punitive damages.
EXISTING LAW :
1)Provides, under EADACPA, civil protections and remedies for
victims of elder and dependent adult abuse and neglect.
(Welfare & Institutions Code Section 15600 et seq. Unless
stated otherwise, all further statutory references are to that
code.)
2)Provides that where physical abuse or neglect of an elder or
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dependent adult is proven by clear and convincing evidence and
the defendant has been found guilty of recklessness,
oppression, fraud or malice, in addition to all other remedies
otherwise provided by law, the court shall award reasonable
attorney's fees and costs, as specified. Requires, in order
to receive any damages or attorney's fees against an employer,
the standards set forth in #3 below must be satisfied.
(Section 15657.)
3)Requires a plaintiff, in order to receive punitive damages
against an employer for the acts of an employee, to make a
showing of clear and convincing evidence that 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 authorized or ratified the wrongful
conduct for which the damages are awarded or was personally
guilty of oppression, fraud, or malice. (Civil Code Section
3294.)
4)Provides that where financial abuse of an elder or dependent
adult is proven by a preponderance of the evidence, in
addition to compensatory damages and all other remedies
otherwise provided by law, the court shall order reasonable
attorney's fees and costs, as specified. (Section 15657.5.)
COMMENTS : In 1992, the Legislature enacted EADACPA in order to
provide enhanced remedies to ensure adequate representation of
victims in cases of elder and dependent adult physical and
financial abuse or neglect. (SB 679 (Mello, Chap. 774, Stats.
1991.) At that time, the standard of proof necessary to
establish a claim under EADACPA was set high through the use of
the clear and convincing standard of proof. In 2005, the
Legislature enacted AB 2611 (Simitian, Chap. 886, Stats. 2004),
which separated out the provisions for elder and dependent adult
financial abuse and reduced the standard of proof necessary to
establish financial abuse to the more typical civil
preponderance of the evidence standard of proof. The
evidentiary standard for proving physical abuse or neglect
remained at the higher clear and convincing standard.
In 2002, the U.S. General Accounting Office (GAO) prepared a
report on nursing home resident abuse. The GAO found that 30
percent of the 17,000 nursing homes in the United States were
cited for deficiencies involving actual harm to the nursing home
residents or for placing the residents at risk of death or
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serious injury. (Nursing Homes: More Can Be Done to Protect
Residents from Abuse, GAO-02-312 (March 1, 2002).) This report
stated that "relatively few prosecutions result from allegations
of physical and sexual abuse of nursing home residents because
allegations of abuse were not always referred to local law
enforcement or MFCUs ÝMedicaid Fraud Control Units]. When
referrals were made it was often days or weeks after the
incident occurred, compromising the integrity of what limited
evidence might have still been available. Second, a lack of
witnesses to instances of abuse made prosecutions difficult and
convictions unlikely." (Id. at 17.)
This bill, sponsored by California Advocates for Nursing Home
Reform, California Alliance for Retired Americans, Congress of
California Seniors and Consumer Attorneys of California (CAOC),
changes the evidentiary standard of proof for elder and
dependent adult physical abuse and neglect civil cases from the
clear and convincing standard to the more usual civil standard
of preponderance of the evidence. This bill also clarifies that
punitive damages in these cases may not be awarded against an
employer for an employee's acts unless the plaintiff
establishes, by clear and convincing evidence, that 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 authorized or ratified the wrongful conduct
for which the damages are awarded or was personally guilty of
oppression, fraud, or malice. This bill provides that this
additional requirement does not apply to the recovery of
compensatory damages or attorney's fees and costs.
In support of the bill, the author writes:
It is estimated that over 132,000 elders in California are
abused every year. However, for every abuse reported,
research has found that at least five others go unreported,
making the actual number of abused people much higher that the
reported rate. Studies show that neglect and abuse of nursing
home residents have reached epidemic proportions. A report by
the Centers for Medicare and Medicaid Services found that at
least 91% of homes have been cited for health and safety
deficiencies. Yet many residents who suffer neglect and abuse
find it virtually impossible to seek justice in court. Higher
evidentiary standard makes winning cases of elder abuse very
difficult.
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Under This Bill, the Evidentiary Standard of Proof for Elder and
Dependent Adult Physical Abuse and Neglect Cases is Lowered to
the More Typical Civil Standard : A standard of proof is a
threshold level of reliability of evidence that must be met to
be considered dispositive of the thing to be proven. There are
three general evidentiary standards of proof - the criminal
beyond a reasonable doubt standard, the preponderance of the
evidence standard, and the clear and convincing standard. The
preponderance of the evidence standard of proof is used in most
civil cases. To satisfy the preponderance standard, a party
must provide evidence showing that the existence of a fact at
issue is more likely true than not. The clear and convincing
standard of proof requires a party to prove that the fact is
highly probable to be true. This bill lowers the standard of
proof in civil elder and dependent adult abuse and neglect cases
from clear and convincing to preponderance of the evidence.
Existing law under EADACPA requires a victim of elder or
dependent adult abuse or neglect to prove by clear and
convincing evidence, or that it is highly probable, that the
defendant's conduct caused harm to the victim. The sponsor
argues that this standard of proof is very difficult to prove in
most elder and dependent adult abuse cases because these
elderly, ill, or disabled victims may be unable to testify as to
the specific facts of the abuse or neglect they suffered, or in
some cases, the victim is already deceased by the time the case
is filed on their behalf.
Current law under EADACPA requires an elderly or disabled victim
of financial abuse to prove that case by a preponderance of the
evidence. CAOC notes that "it is indeed somewhat alarming to
have a higher standard of proof when someone is actually abused
to the point of physical injury or death versus financial harm."
The author argues that EADACPA was enacted with clear
legislative intent to protect seniors and dependent adults from
harm. Indeed, in codifying EADACPA, the Legislature found that
"infirm elderly persons and dependent adults are a disadvantaged
class, that cases of abuse of these persons are seldom
prosecuted as criminal matters, and few civil cases are brought
in connection with this abuse due to problems of proof, court
delays, and the lack of incentives to prosecute these suits."
(Section 15600.) By providing a lower standard of proof for the
award of attorney's fees and costs, this bill, argue supporters,
better provides for the original intent of EADACPA in improving
access to the legal system and in reducing abuse.
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Many victims are residents of care facilities which maintain the
records of the victims, and these records, allege supporters,
may not sufficiently document the physical ailments or lack of
care of the victims. Further, employees of these care
facilities are employed by the facilities and may not feel
comfortable testifying against their employer's interest in
these cases. Consequently, argue supporters, the clear and
convincing standard can be insurmountable, and it is difficult
for these victims and their representatives to have their day in
court. The opponents acknowledge this, stating that the higher
evidentiary standard allows judges to weed out cases at the
summary judgment phase. Accordingly, the author argues that the
lower standard of proof, proposed by this bill, gives victims of
physical abuse and neglect a fighting chance when bringing their
civil actions, and, as a result, should serve to curb the
physical abuse and neglect because employers will strive for
better care of seniors and dependent adults.
It is important to note that although this bill lowers the
evidentiary standard of proof, EADACPA requires that for an
elder or dependent adult to be successful in court, he or she
must still prove that the physical abuse or neglect was the
result of recklessness, oppression, fraud or malice, on the part
of the defendant. The bill lowers the standard of proof, but
the elements of the action that must be proved remain the same.
This Bill Also Lowers the Standard of Proof for an Award of
Damages and Attorney's Fees Against an Employer : As a general
matter, the doctrine of respondeat superior provides that an
employer is liable for the negligent acts of an employee if the
acts are committed within the scope of employment. (See Civil
Code Section 2338, which holds that "a principal is responsible
to third persons for the negligence of his agent in the
transaction of the business of the agency, including wrongful
acts committed by such agent in and as a part of the transaction
of such business, and for his willful omission to fulfill the
obligations of the principal.")
Currently EADACPA provides that, in order to receive an award of
any damages or attorney's fees and costs against an employer,
the victim must show, by clear and convincing evidence, that the
employer consciously employed the unfit employee, the employer
authorized or ratified the employee's wrongful conduct, or the
employer itself was personally guilty of oppression, fraud, or
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malice, a standard usually reserved for punitive damages. This
bill leaves that standard in place for an award of punitive
damages against an employer. However, the bill provides that
this additional hurdle does not apply to the recovery of
compensatory damages or attorney's fees and costs from an
employer. Again this reduction in the showing required to get
damages and fees from an employer is more typical of civil cases
generally, where an employer effectively stands in the shoes of
the employee and is liable as the employee would be liable.
Supporters argue that this change appears to support the
original intent of EADACPA - better access to the legal system
to address claims of elder and dependent adult abuse.
ARGUMENTS IN SUPPORT : Supporters believe that the clear and
convincing standard has created an unnecessarily high hurdle
that often makes it unreasonably difficult to prove damages,
particularly for elderly and dependent adults who, due to their
disabilities, may not be able to verbalize adequately what
happened to them in order to satisfy the clear and convincing
standard. Supporters believe that the more typical
preponderance of the evidence standard will better protect this
very vulnerable population.
Adds the California Disability Community Action Network:
The massive State budget reductions this year and in
previous years to health and human services have had a
devastating impact on quality of care for people with
disabilities, seniors and others in the community and also
those in long term facilities. With those reductions, the
State has an increasing responsibility to improve oversight
and accountability to help prevent and reduce physical
abuse of seniors and people with disabilities and other
dependent adults with stronger enforcement of the Elder and
Dependent Adult Civil Protection Act. SB 558 does that.
The County Welfare Directors Association writes that this bill
will "bring the standard for physical abuse into line with the
standards for other types of abuse for the same population.
This will help to ensure justice is done for more Californians
and hold more perpetrators to account for their actions."
ARGUMENTS IN OPPOSITION : Opponents, including the California
Association of Health Facilities, the California Civil Justice
Association of California, and the California Chamber of
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Commerce, as well as insurers, long-term care facilities and
attorneys representing those facilities, raise many concerns
about the bill. First, they argue that the original intent of
EADACPA was to increased access to legal counsel and "(1) allow
legal counsel to obtain awards of reasonable attorneys' fees;
and (2) allow plaintiffs awards of non-economic damages in
'survival' claims for victims that die prior to judgment in the
action." The opponents claim there has been an increase in the
frequency and severity of resulting litigation and there is no
shortage of attorneys willing to take these cases and know that
elder abuse case attorneys are hard to find. As such, the
opponents believe this bill "would only promote additional
attorney exploitation of EADACPA remedies" and "do more to help
lawyers than to help the elderly." Opponents cite to a study by
the AON Corporation, a global insurance organization, which they
say shows that California leads the nation in the number of
claims brought against nursing home operators at a rate of 11
claims per 1,000 beds per year.
However, California Advocates for Nursing Home Reform (CANHR), a
sponsor of this bill, responds that the AON study contains
significant problems, including that it reviewed only a small
percentage of nursing home operators, primarily chains "known to
have incurred the highest rate of liability claims." In
addition, CANHR prepared a study of every elder abuse or neglect
cases filed in 16 California county courts, including the
largest county - Los Angeles, over a three-year period, which
showed that 501 elder abuse or neglect cases were filed over a
three-year period, for a yearly average of 2.9 claims per 1,000
beds per year. (CANHR, Much Ado About Nothing: Debunking the
Myth of Frequent and Frivolous Elder Abuse Lawsuits Against
California's Nursing Homes 14 (Nov. 2003).) This report states
that "Ýt]he number of lawsuits is extraordinarily low when
measured against the large number of nursing homes and the tens
of thousands of elder and dependent adults who resided in the
577 skilled nursing facilities during the study period."
Accordingly, although the opponents allege an increase in the
frequency and severity of resulting litigation, the sponsors
argue that the CANHR report shows otherwise.
Further, supporters argue that this bill is not about attorney
exploitation of EADACPA remedies. EADACPA was enacted in order
to provide access of elder and dependent adults to legal
representation, which is not just about finding an attorney who
will represent them. Rather, the lack of access to legal
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representation that this bill seeks to address, they argue, is
the victim's inability to prove an abuse or neglect case due to
lack of clear and convincing evidence. Elder and dependent
adult victims of abuse and neglect, due to their advanced age,
infirmity, or disability, may not be able to testify on their
own behalf, produce witnesses willing to testify against their
employers, or obtain access to records which may or may not
sufficiently document the physical signs of the abuse or
neglect. This bill lowers the standard of proof, argue
supporters, so that these victims of abuse and neglect have a
better chance at holding the appropriate persons responsible for
the abuse and neglect. Supporters argue that the best way to
reduce litigation is by reducing the underlying abuse or
neglect.
Opponents, however, argue that this bill will do nothing to
improve care, citing a March 2011 study published in the New
England Journal of Medicine that reports that high-quality
nursing homes get sued almost as often as low-quality homes.
CANHR responds that their 2003 study found, on the contrary, "a
very strong association between a skilled nursing facility's
history of neglect and the likelihood of being sued. (Id. at
17.) CANHR found that nearly half of the elder abuse lawsuits
filed against nursing homes were made against only ten percent
of the nursing homes, many of which had "extreme histories of
abuse and neglect violations." (Id. at 6.)
Next, opponents argue that "Ýi]f the Ýevidentiary] standard is
lowered . . . acts of mere negligence would qualify for enhanced
remedies, thereby increasing the risk of litigation, dodging
existing malpractice rules and exacerbating the shortage of
doctors, nurses and other medical professionals willing to treat
this growing elderly population." Opponents state that
deficiencies in nursing home staffing could then qualify as
elder and dependent adult neglect. The opponents argue that
"Ýb]y filing a claim for relief under ÝEADACPA], plaintiff's
attorneys are able to circumvent the limitations on non-economic
damages and attorney's fees provided to health care providers
under the Medical Injury Compensation Reform Act (MICRA). This
bill will add new incentives for attorneys to include claims of
elder abuse in every complaint in order to skirt MICRA and
secure higher fees."
Supporters contend that abuse cases under EADACPA are not mere
negligence cases. While this bill lowers the standard of proof,
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plaintiffs will still have to prove that a defendant is guilty
of recklessness, oppression, fraud or malice, significantly more
than negligence. Supporters cite to Delany v. Baker (1999) 20
Cal.4th 23, whereby the court distinguished between professional
negligence and elder abuse causes of actions and the limitations
on damages pursuant to MICRA. The court stated "Section 15657.2
can therefore be read as making clear that the acts proscribed
by section 15657 do not include acts of simple professional
negligence, but refer to forms of abuse or neglect performed
with some state of culpability greater than mere negligence."
(Delaney, 20 Cal.4th at 32.) The court determined that Section
15657 was intended "to protect elder adults through the
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." (Id. at 42.) For this reason, the court ordered that
enhanced remedies were appropriate against the defendant nursing
home. Moreover, the court in Covenant Care v. Superior Court
(2004) 32 Cal.4th 771, 783 made clear that the MICRA limitations
on actions for damages arising out of professional negligence
"were not meant to burden those who pursue the cause of abused
elderly persons under ÝEADACPA]." Accordingly, supporters
argue, this bill does not contravene the MICRA caps associated
with professional negligence cases because existing law already
recognizes that the elder and dependent adult abuse and neglect
cause of action is separate and distinct from professional
negligence.
Next opponents argue that the bill ignores the vigorous
protections already in place in California for long-term care
residents. They argue that "California has the most regulated,
investigated and easily accessible-to-the-public system for
detecting, investigating and punishing elder abuse" in long-term
care facilities. Supporters, however, counter that huge budget
cutbacks have significantly reduced oversight - the ombudsman
program has lost a significant portion of its funding, at the
same time the ability of the Department of Public Health to
effectively monitor facilities has been diminished, due to
furloughs, restrictions on travel and the inability to fill
vacant positions.
Finally, opponents argue that this bill will increase litigation
costs and will result in a diversion of dollars from care to
attorney's fees, which will "place these services in additional
jeopardy, which is particularly harmful in today's economic
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environment." Supporters state that there is no supporting
evidence to suggest that this bill will cause money to be
diverted from health care services to pay for litigation of
abuse and neglect cases and reiterate that the best way to
reduce litigation costs is to reduce abuse and neglect. They
believe that this bill will help prevent abuse and, thus, reduce
litigation costs.
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform (co-sponsor)
California Alliance for Retired Americans (co-sponsor)
Congress of California Seniors (co-sponsor)
Consumer Attorneys of California (co-sponsor)
Alzheimer's Association
Consumer Federation of California
California Disability Community Action Network
California Nurses Association
California School Employees Association
Compassion and Choices
County of San Mateo
County Welfare Directors Association of California
Disability Rights California
Gray Panthers Sacramento
Junior League of Palo Alto-Mid Peninsula
Older Women's League, Sacramento Capitol Chapter
Older Women's League of California
Peace Officers Research Association of California
Two individuals
Opposition
Aging Services of California
Beta Healthcare Group
California Association of Health Facilities
California Association of Professional Liability Insurers
California Chamber of Commerce
California Medical Association
Civil Justice Association of California
Horizon West Auburn Ridge
Lakeport Skilled Nursing Center
Sanders, Collins & Rehaste, LLP
Wroten & Associates
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Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334