BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 558 (Simitian)
As Amended April 4, 2011
Hearing Date: April 26, 2011
Fiscal: No
Urgency: No
TW:rm
SUBJECT
Elder and Dependent Adults: Abuse or Neglect: Damages
DESCRIPTION
This bill would change 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
would clarify 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.
BACKGROUND
In 1992, the Legislature enacted the Elder Abuse and Dependent
Adult Civil Protection Act (EADACPA). (SB 679 (Mello, Ch. 774,
Stats. 1991.) EADACPA was established in order to provide
enhanced remedies to ensure adequate representation of victims
in cases of elder or dependent adult physical and financial
abuse and neglect. In 2005, the Legislature enacted AB 2611
(Simitian, Ch. 886, Stats. 2004), which separated out the
provisions for elder and dependent adult financial abuse. AB
2611 imposed a different standard of proof than the clear and
convincing evidentiary standard necessary to prove physical
abuse or neglect.
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
(more)
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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 convictions unlikely." (Id. at pg. 17.)
This bill would change the evidentiary standard of proof for
elder and dependent adult physical abuse and neglect civil cases
from a clear and convincing standard to preponderance of the
evidence. This bill also would clarify that punitive damages in
these cases may not be awarded against an employer for an
employee's acts unless the requirements under the Civil Code for
exemplary damages are satisfied. This requirement would not
apply to the recovery of compensatory damages or attorney's fees
and costs.
CHANGES TO EXISTING LAW
Existing law , EADACPA, generally provides civil protections and
remedies for victims of elder and dependent adult abuse and
neglect. (Welf. & Inst. Code Sec. 15600 et seq.)
Existing law provides that where physical abuse or neglect of an
elder or 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 plaintiff can
recover reasonable attorney's fees and costs, as specified. In
order to receive any damages or attorney's fees against an
employer, the standards set forth in Civil Code Section 3294(b)
must be satisfied. (Welf. & Inst. Code Sec. 15657.)
Existing law 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
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others or authorized or ratified the wrongful conduct for which
the damages are awarded or was personally guilty of oppression,
fraud, or malice. In the case of a corporate employer, the
advance knowledge and conscious disregard, authorization,
ratification or act of oppression, fraud, or malice must be on
the part of an officer, director, or managing agent of the
corporation. (Civ. Code Sec. 3294(b).)
This bill would change the standard of proof required in elder
or dependent adult physical abuse and neglect cases brought
under Welfare and Institutions Code Section 15657 from clear and
convincing to a preponderance of the evidence.
This bill would require the standards set forth in Civil Code
Section 3294(b) to be satisfied in order to receive punitive
damages against an employer for an employee's acts. This bill
would not require this showing to receive compensatory damages
or attorney's fees and costs.
COMMENT
1. Stated need for 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 5 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% 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 this
bill, 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
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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 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.
2. Lowering the evidentiary standard of proof for elder and
dependent adult physical abuse and neglect cases
This bill would lower the standard of proof in civil elder and
dependent adult abuse and neglect cases from clear and
convincing to preponderance of the evidence. 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.
A clear and convincing standard of proof requires the party to
prove to the trier of fact that it is substantially more likely
than not that the thing to be proven is in fact true. A
preponderance of the evidence standard of proof requires less
proof than the clear and convincing standard. To satisfy a
preponderance standard, the party must provide evidence that
there is a greater than 50 percent chance that the thing to be
proved is true.
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 substantially more likely
than not, 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
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the time the case is filed on their behalf.
Existing law under EADACPA requires an elderly or disabled
victim of financial abuse to prove by a preponderance of the
evidence, or that there is at least a 51 percent chance, that
the defendant committed financial abuse. 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, legislative history of
Welfare and Institutions Code Section 15657 shows that this
statute was enacted to provide enhanced remedies to ensure
adequate representation of victims in cases of elder or
dependent adult abuse. (See SB 679 (Mello, Ch. 774, Stats.
1991.)
Many victims are residents of care facilities which maintain the
records of the victims, and these records 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, the clear and
convincing standard has proven to be insurmountable, and it is
difficult for these victims and their representatives to obtain
legal help. Accordingly, the author argues that the lower
standard of proof of preponderance of the evidence proposed by
this bill would serve to curb the physical abuse and neglect
because employers will strive for better care of seniors and
dependent adults, as well as give the victims of physical abuse
and neglect a fighting chance when bringing their civil actions.
3. Lower standard of proof for award of damages and attorney's
fees
This bill would authorize an award of attorney's fees and costs
and compensatory damages against an employer where it is proven
by a preponderance of the evidence that a defendant was liable
for actionable abuse of an elder or dependent adult, and that
the defendant had been guilty of recklessness, oppression,
fraud, or malice in the commission of the abuse. Existing law
for elder and dependent adult physical and financial abuse and
neglect requires a showing of clear and convincing evidence of
recklessness, oppression, fraud, or malice in order to obtain
attorney's fees. (Welf. & Inst. Code Secs. 15657 and 15657.5.)
The clear and convincing standard also is required for other
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non-contract based civil cases in order to obtain punitive
damages. (See Civ. Code Sec. 3294.)
As discussed above, in most elder and dependent adult cases, the
victims are unable to testify to the abuse and neglect suffered
at the hands of the defendants, and documents and other
witnesses may be difficult to obtain in the event the defendant
is a skilled nursing facility in control of the documents and
employees with knowledge of the plaintiff's care. (See Comment
2.) Consequently, the clear and convincing standard has proven
to be insurmountable, and it is difficult for these victims or
their representatives to obtain legal assistance. Accordingly,
the author argues that the lower standard of proof of
preponderance of the evidence proposed by this bill would give
the victims of physical abuse and neglect better access to legal
actions and representation.
The legislative history of SB 679 provides that it was enacted,
in part, to provide incentives for private attorneys to get
involved in bringing civil actions in elder and dependent adult
abuse cases. The Legislative intent of SB 679 declared that
infirm elders and dependent adults are a disadvantaged class,
cases of abuse of these individuals are seldom prosecuted as
criminal matters, and few civil cases of abuse are brought in
connection with this abuse due to problems of proof, court
delays, and the lack of incentives to prosecute these suits. As
was the case in 1991, in practice, the inability of the victim
to testify or the death of the victim and the difficulty in
finding an attorney to handle an abuse case where attorney's
fees may not be awarded, impedes many victims from suing
successfully. This bill would provide a lower standard of proof
for the award of attorney's fees and costs and would better
provide for the original intent of EADACPA for access to the
legal system.
4. Award of attorney's fees and costs and compensatory damages
against employer for employer's acts
This bill would authorize an award of attorney's fees and costs
and compensatory damages against an employer for an employee's
abuse or neglect of an elder or dependent adult. Existing law
provides that, in order to receive an award of any damages or
attorney's fees and costs against an employer, the victim must
show 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
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personally guilty of oppression, fraud, or malice. (See Welf. &
Inst. Code Sec. 15657 and Civ. Code Sec. 3294.)
Legislative history of Welfare and Institutions Code Section
15657 indicates that the California Association of Health
Facilities (CAHF) opposed EADACPA because they believed it would
pose a threat to healthcare institutions and health care
professionals by exposing them to increased litigation. The net
result would be higher insurance premiums for health care
providers. (Sen. Comm. on Judiciary, Analysis of SB 679 (Mello,
Ch. 774, Stats. 1991), p. 4.) CAHF removed its opposition after
the bill was amended to provide for limitations on health care
provider exposure, such as a cap on damages (Welf. & Inst. Code
Sec. 15657(b)) and limitations on employer liability (Welf. &
Inst. Code Sec. 15657(c).) This bill would maintain the
negotiated damage cap and employer liability limitations, but
would allow victims better access to legal representation, as
discussed in Comment 3.
5. Opposition's concerns
The California Association of Health Facilities (CAHF) and Beta
Healthcare Group (BHG), opponents of this bill, raise a number
of concerns about the bill, including following:
a. Lower evidentiary standard unnecessary because EADACPA
is working
The opponents argue that the original intent of EADACPA was to
provide "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." 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 no evidence to show consumers are having problems gaining
access to elder abuse case attorneys. As such, the opponents
believe this bill "would only promote additional attorney
exploitation of EADACPA remedies."
However, California Advocates for Nursing Home Reform (CANHR),
a sponsor of this bill, prepared a study of elder abuse or
neglect cases filed in 16 California county courts, including
the largest county - Los Angeles, which showed that 501 elder
abuse or neglect cases were filed over a three-year period,
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which is an average of 167 cases per year. (California
Advocates for Nursing Home Reform, Much Ado About Nothing:
Debunking the Myth of Frequent and Frivolous Elder Abuse
Lawsuits Against California's Nursing Homes (Nov. 2003) p.13.)
This report states that "�t]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 this report shows
otherwise.
Further, the sponsors 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 representation that this bill seeks to
address 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 would lower the standard
of proof so that these victims of abuse and neglect would have
a better chance at holding the appropriate persons responsible
for the abuse and neglect.
b. Lower evidentiary standard will result in professional
negligence qualifying for enhanced remedies in
contravention of MICRA limitations
The opponents argue that "�i]f the �evidentiary] 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." The
opponents state that deficiencies in nursing home staffing
could then qualify as elder and dependent adult neglect. The
opponents argue that "�b]y filing a claim for relief under
�EADACPA], plaintiff's attorneys are able to circumvent the
limitations on non-economic damages and attorney's fees
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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."
Yet, the sponsors argue that professional negligence is
clearly defined by statute and case law. Existing law defines
professional negligence as a "negligent act or omission to act
by a health care provider in the rendering of professional
services." (Code Civ. Proc. Sec. 340.5.) On the other hand,
existing law defines elder and dependent adult neglect as the
"negligent failure of any person having the care or custody of
an elder or a dependent adult to exercise that degree of care
that a reasonable person in a like position would exercise
�or] (2) �t]he negligent failure of an elder or dependent
adult to exercise that degree of self care that a reasonable
person in a like position would exercise." (Welf. & Inst.
Code Sec. 15610.57.) EADACPA provides a statute for elder and
dependent abuse and neglect causes of actions (Welf. & Inst.
Code Sec. 15657) and separately contains a statute for
professional negligence cases against health care providers
(Welf. & Inst. Code Sec. 15657.2). Indeed, in Covenant Care
Inc. v. Superior Court (2004) 32 Cal.4th 771, the court, in
analyzing the difference between professional negligence and
elder and dependent adult causes of actions, held that "the
statutory definition of 'neglect' speaks not of the
undertaking of medical services, but of the failure to provide
medical care." (Id. at 783.)
The sponsors cite to Delany v. Baker (1999) 20 Cal.4th 23,
whereby the court distinguished between professional
negligence and elder abuse neglect 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 v. Baker, supra, 20 Cal.4th at p.
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 p. 42.)
For this reason, the court ordered that enhanced remedies were
appropriate against the defendant nursing home. The Covenant
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Care court also determined that the MICRA limitations in Civil
Code Section 425.13 on actions for damages arising out of
professional negligence "were not meant to burden those who
pursue the cause of abused elderly persons under �EADACPA]."
(Id.) Accordingly, the sponsors 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.
c. Litigation costs will drain resources away from care
facilities
The 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 environment." On the other hand, supporters of this
bill 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 elder and adult abuse
and neglect cases. In fact, Reuters reported that Skilled
Health Care's (a company providing long term care services to
elder and dependent adults) fourth quarter report for 2010
showed that revenue from long-term care services segment rose
nine percent to $182.6 million. (Reuters, Skilled Healthcare
Q4 profit beats Street estimates (Feb. 14, 2011)
http://www.reuters.com/article/2011/02/14/skilledhealthcare-idU
SSGE71D0CW20110214 as of April 6, 2011.)
Support : 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; three individuals
Opposition : Aging Services of California; Beta Healthcare
Group; California Association of Health Facilities; California
Association of Professional Liability Insurers; California
Chamber of Commerce; Civil Justice Association of California;
Horizon West Auburn Ridge; Lakeport Skilled Nursing Center;
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Sanders, Collins & Rehaste, LLP
HISTORY
Source : California Advocates for Nursing Home Reform;
California Alliance for Retired Americans; Congress of
California Seniors; Consumer Attorneys of California
Related Pending Legislation : None Known
Prior Legislation : See Background.
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