BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1062|
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THIRD READING
Bill No: AB 1062
Author: Dickinson (D)
Amended: 8/24/12 in Senate
Vote: 21
PRIOR VOTES NOT RELEVANT
SUBJECT : Public social services
SOURCE : Author
DIGEST : This bill changes the evidentiary standard of
proof for elder and dependent abuse or neglect cases from
clear and convincing to preponderance of the evidence.
Senate Floor Amendments of 8/24/12 delete the prior version
of the bill relating to arbitration, and instead change the
evidentiary standard of proof for elder and dependent abuse
or neglect cases from clear and convincing to preponderance
of the evidence.
�NOTE: The August 24, 2012 amendments are contained in SB
558 (Simitian), which passed the Senate (21-14) on
June 1, 2012. The bill is held under submission in
the Assembly Appropriations Committee.]
ANALYSIS :
Existing law:
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1. Provides for the award of attorney's fees and costs to,
and the recovery of damages by, a plaintiff, when it is
proven by clear and convincing evidence that a defendant
is liable for physical abuse or neglect of an elder or
dependent adult and the defendant has also been guilty
of recklessness, oppression, fraud, or malice in the
commission of the abuse.
2. Authorizes a plaintiff to recover damages for the sake
of example and by way of punishing the defendant in
addition to the actual damages.
3. Provides that an employer is not liable for punitive
damages based on the acts of an employee unless certain
conditions are satisfied.
4. Requires that these conditions regarding the imposition
of punitive damages on an employer based upon the acts
of an employee be satisfied before any damages or
attorney's fees permitted due to liability for physical
abuse or neglect of an elder or dependent adult are
authorized to be imposed against an employer.
This bill changes the evidentiary standard of proof for
elder and dependent abuse or neglect cases 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
other civil case exemplary damages against employers are
satisfied; this requirement would not apply to the recovery
of compensatory damages or attorney's fees and costs. The
bill also clarifies that the bill is not intended to affect
the standard of proof for punitive damages, as specified.
The August 24, 2012 amendments are the same as the
provisions contained in SB 558 (Simitian), which was heard
in and approved by the Senate Judiciary Committee. SB 558
is held in the Assembly Appropriations Committee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/28/12)
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OPPOSITION : (Verified 8/28/12)
California Association of Health Facilities
ARGUMENTS IN OPPOSITION : The California Association of
Health Facilities writes:
EADACPA Is Already Working - When EADACPA was amended to
include enhanced remedies, the stated legislative intent
was to "enable interested persons to engage attorneys to
take up the cause of abused elderly persons and dependent
adults." The 1991 legislation focused on two specific
legal reforms to meet the broad objective of increased
access to legal counsel: (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. While it was clear that EADACPA would
trigger more litigation, the increase in the frequency
and severity of resulting litigation against LTC
providers has far exceeded expectations.
According to a June 2010 actuarial analysis of nursing
facility litigation costs by AON Corporation, the cost
per occupied bed in California is $2,150, compared to the
national average of $1,340. California also leads the
nation in the number of claims brought against nursing
home operators at an annual rate of 11 claims per 1,000
beds per year, or roughly 1.1 claims per facility per
year. The size of the average award has tripled from
$65,000 in the early 1990's to $195,000 in 2009.
California SNF providers are paying approximately $240
million per year in litigation related expenses.
There is no shortage of attorneys willing to take these
cases and nothing to suggest that consumers have problems
gaining access to counsel for this purpose. In many
parts of the state, the local county bar associations
have added an elder abuse section and the Continuing
Education of the Bar (CEB) has developed an extensive
practice guide for attorneys who litigate these cases.
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California is already unique in allowing an evidentiary
standard for enhanced remedies for elder abuse claims.
By lowering the standard,
SB 558 would only promote additional attorney
exploitation of EADACPA remedies."
RJG:m 8/28/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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