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
�See note in Digest]
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 :
CONTINUED
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Existing law:
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.
In 2002, the U.S. General Accounting Office (GAO) prepared
a report on nursing home resident abuse. This report was
presented to the U.S. Senate Special Committee on Aging.
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 serious injury. (Nursing
Homes: More Can Be Done to Protect Residents from Abuse,
GAO-02-312, Mar 1, 2002,
http://www.gao.gov/new.items/d02312.pdf as of Apr 2, 2011.)
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
�Medicaid 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
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convictions unlikely."
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.
SB 558 support was as follows:
California Advocates for Nursing Home Reform (co-source)
California Alliance for Retired Americans (co-source)
Congress of California Seniors (co-source)
Consumer Attorneys of California (co-source)
California Council of the Alzheimer's Association
California Disability Community Action Network
California Long-Term Care Ombudsman Association
California Nurses Association
County Welfare Directors Association
Disability Rights California
Gray Panthers Sacramento
Older Women's League of California
Peace Officers Research Association of California
State Public Affairs Committee of the Junior Leagues Palo
Alto
Mid Peninsula
SB 558 opposition was as follows:
Aging Services of California
Beta Healthcare Group
California Association of Health Facilities
California Association of Professional Liability Insurers
California Chamber of Commerce
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Civil Justice Association of California
Horizon West Auburn Ridge
Lakeport Skilled Nursing Center
Sanders, Collins & Rehaste, LLP
According to the author of SB 558, 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 than 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 percent 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. �A] �h]igher evidentiary standard makes winning
cases of elder abuse very difficult.
Consumer Attorneys of California (CAOC), a supporter of SB
558, writes that:
Teresa Rodriguez, injured at birth, was a resident at
a Res-Care facility in San Mateo County. As a
developmentally disabled adult, she was non verbal,
but could perform small functions like brushing her
hair with assistance and watching TV. A new
employee, with no training, left Teresa in a scalding
shower, alone, in water that was over 130 degrees for
over twenty minutes. Teresa suffered second and
third degree burns over her thighs, genitals, stomach
and lower back. Even worse, after the employee
returned to get her, the employee hid what happened
and put Teresa in bed, covered in sheets, and later,
after another employee discovered her condition, the
employees still failed to call 911 for more than 3
hours after the injury. Teresa spent the rest of her
life in sub-acute care, with breathing and feeding
tubes, and lost any ability of life control,
including the small milestones of care for herself.
The defendant facility claimed that an elder abuse
claim under EADACPA could not proceed because there
was not enough clear and convincing proof, i.e., that
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because of the lack of witnesses and because Teresa
could not "tell" what happened, clear and convincing
evidence did not exist. . . . The case finally
settled before trial, but sadly Teresa died a short
time thereafter.
The California Association of Health Facilities, in
opposition to AB 1062, states:
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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
According to the Assembly Appropriations Committee analysis
on SB 558, the principal state impact of the bill will be
General Fund/federal fund cost pressure, potentially in the
hundreds of thousands to millions of dollars, on Medi-Cal
payments to skilled nursing facilities (SNFs) resulting
from increases, linked to increased litigation, in
professional liability insurance (PLI) costs for these
facilities.
SUPPORT : (Verified 8/28/12)
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OPPOSITION : (Verified 8/28/12)
California Association of Health Facilities
RJG:m 8/29/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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