California Nursing Home Abuse and Neglect Claims

When a loved one suffers harm in a California nursing home, families face critical decisions about legal action. Understanding the difference between Elder Abuse Act claims and medical malpractice lawsuits can significantly impact the outcome of your case, including the damages you can recover and the timeline you must follow.

Understanding Your Legal Rights in California Nursing Homes

California nursing home residents who suffer harm due to substandard care may pursue claims under either the Elder Abuse and Dependent Adult Civil Protection Act or traditional medical malpractice law. These two legal frameworks have significantly different procedural requirements and potential remedies.

Key Differences at a Glance

The Elder Abuse Act provides enhanced remedies including attorney’s fees and higher damage caps for egregious conduct, while medical malpractice claims face strict limitations on damages and shorter filing deadlines.

Who Can File a Nursing Home Lawsuit in California

California law protects people age 65 and older, defined as “elders,” who reside in nursing homes and similar facilities. A nursing home resident or their family can file a lawsuit if the resident suffers harm due to poor care.

Important: These cases can proceed even after the resident passes away, with family members continuing the legal action.

The Two Types of California Nursing Home Claims

Elder Abuse Act Claims (Enhanced Remedies)

The Elder Abuse Act addresses neglect, which means “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.”

Elder Abuse Act neglect includes:

• Failure to provide medical care
• Failure to provide adequate food, clothing, or shelter
• Failure to protect from health and safety hazards
• Leaving residents in filthy conditions
• Failing to prevent falls
• Not providing adequate food and water

Medical Malpractice Claims (Treatment Decisions)

Medical malpractice involves “a negligent act or omission to act by a health care provider in the rendering of professional services.” These claims concern decisions about medical treatment, such as:

• Which medications to prescribe
• Surgical procedures to perform
• Medical diagnosis and treatment planning

Burden of Proof: What You Must Prove to Win

Elder Abuse Act: Clear and Convincing Evidence Required

To win under the Elder Abuse Act, you must prove by clear and convincing evidence that the nursing home acted with recklessness, oppression, fraud, or malice.

What is recklessness? It means a “deliberate disregard of the high degree of probability that an injury will occur” and involves a “conscious choice of a course of action with knowledge of the serious danger to others involved in it.”

This is much more than simple carelessness or mistakes. Courts have explained that the Act targets “acts of egregious abuse against elder and dependent adults” rather than ordinary negligence.

Medical Malpractice: Preponderance of Evidence Standard

Medical malpractice cases only require proving that the healthcare provider failed to meet the standard of care that a reasonable provider would follow. This is an easier standard to meet than proving recklessness.

Critical Deadlines: California Nursing Home Statute of Limitations

General Personal Injury Claims: 2 Years

For general personal injury claims, including many nursing home cases, California allows two years from the date of injury to file a lawsuit.

Medical Malpractice Claims: Stricter Deadlines

Medical malpractice cases have stricter deadlines:

• You must file within three years of the injury OR
• One year after discovering the injury, whichever comes first.

Additional requirement: Before filing a medical malpractice lawsuit, you must give the healthcare provider at least 90 days’ advance notice of your intention to sue.

California Statute of Limitations Guide

Comparing Damages: What You Can Recover

Elder Abuse Act Damages (More Favorable)

The Elder Abuse Act provides several advantages:

Attorney’s Fees and Costs: If you win, you can recover attorney’s fees and costs.

Pain and Suffering After Death: The Act permits recovery of pain and suffering damages even after the victim dies, which normally would not be allowed.

No Damage Caps: Elder Abuse Act claims are not subject to California’s medical malpractice damage caps.

When Does Each Type of Claim Apply?

Elder Abuse Act: Custodial Care Failures

Elder Abuse Act claims focus on custodial care failures, such as:

• Leaving residents in filthy conditions
• Failing to prevent falls
• Not providing adequate food and water
• Bedsores from lack of repositioning
• Dropping patients during transfers

These are failures in basic caregiving duties.

Medical Malpractice: Treatment Decisions

Medical malpractice claims involve decisions about medical treatment requiring professional medical judgment and specialized knowledge.

Important distinction: A nursing home can be sued under the Elder Abuse Act for reckless custodial neglect even though it also provides medical services, because “the function of a health care provider is distinct from that of an elder custodian.”

Frequently Asked Questions

Q: Can I sue both for Elder Abuse and Medical Malpractice? A: Yes, if your case involves both custodial neglect and medical treatment failures, you may be able to pursue both types of claims simultaneously.

Q: What if my loved one signed an arbitration agreement? A: Arbitration agreements in nursing home cases are often challengeable on grounds of unconscionability, especially considering the vulnerability of nursing home residents at admission.

Q: How long do nursing home cases take? A: The timeline varies depending on the complexity of the case, but medical malpractice cases may take longer due to additional procedural requirements like the 90-day notice period.

Q: Do I need an expert witness? A: Medical malpractice cases typically require expert testimony to establish the standard of care. Elder Abuse Act cases may also benefit from expert testimony, but the requirements differ based on whether the care was custodial or medical in nature.

Understanding Liability in Nursing Home Cases

Nursing home liability in personal injury cases involves proving that the nursing home owed a duty of care to the resident, breached that duty by failing to provide reasonable and necessary services, and that this failure caused harm or death.

Types of Nursing Home Liability

Direct Negligence: The nursing home’s own failures in providing care.

Corporate Negligence: Systemic failures such as chronic understaffing or inadequate policies.

Vicarious Liability: The nursing home’s responsibility for employees’ acts within the scope of their employment.

Contractual Duties: Obligations established by admission agreements requiring reasonable care.

Staffing and Administrative Failures

Allegations concerning operational or administrative failures, like staffing decisions, can constitute ordinary negligence rather than medical malpractice depending on the nature of the duty breached and the gravamen of the claim.

The Distinction Between Custodial Care and Medical Treatment

California courts distinguish between the custodial role of caring for vulnerable elders and the medical treatment role of diagnosing and treating illness. This distinction determines which legal framework applies to your case.

Custodial care duties include basic necessities like hygiene, nutrition, mobility assistance, and fall prevention. Failures in these areas typically fall under the Elder Abuse Act.

Medical treatment involves professional judgment about diagnosis, medication, surgical intervention, and therapy. Negligence in these areas is usually medical malpractice.

Why These Distinctions Matter for Your Case

Understanding whether your case falls under the Elder Abuse Act or medical malpractice law affects:

1. Damage Recovery: Elder Abuse cases offer unlimited noneconomic damages and attorney’s fee recovery
2. Filing Deadlines: Different statutes of limitations apply
3. Burden of Proof: Elder Abuse requires clear and convincing evidence of recklessness
4. Procedural Requirements: Medical malpractice has additional notice requirements
5. Expert Testimony: Requirements differ based on claim type

Next Steps: Protecting Your Loved One’s Rights

If your loved one has suffered harm in a California nursing home, time is critical. The statute of limitations may be shorter than you think, especially if medical malpractice is involved.

Important considerations:

• Document all incidents of neglect or abuse with photos and written records
• Obtain copies of all medical records and care plans
• Report suspected abuse to local authorities and the California Department of Public Health
• Consult with an experienced California elder abuse attorney who understands both legal frameworks

Contact us today.