What Constitutes Nursing Home Abuse?

Nursing home abuse can manifest in various ways:

• Physical Abuse: The intentional use of force that causes pain, injury, or impairment (e.g., hitting, slapping, or using physical restraints).
• Emotional Abuse: Verbal threats, insults, humiliation, and isolation intended to cause emotional distress.
• Sexual Abuse: Non-consensual sexual contact or exploitation of an elderly resident.
• Neglect: Failure to provide adequate care, including withholding food, medical attention, or hygiene assistance.
• Financial Abuse: Unauthorized use of an elderly person’s funds, property, or assets.

The emotional and physical toll on victims and their families can be devastating, which is why the law provides avenues for justice and compensation.

Legal Protections Under California Law

California takes elder abuse seriously. The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) is a critical piece of legislation that protects residents of nursing homes and other long-term care facilities. Enacted under California Welfare and Institutions Code § 15600 et seq., EADACPA provides civil and criminal penalties for those who commit elder abuse or neglect.

Key Provisions of EADACPA

1. Definition of Elder Abuse: Elder abuse is defined as the physical, emotional, or financial abuse of anyone aged 65 or older. The statute also protects dependent adults aged 18 to 64 who suffer from physical or mental limitations.
2. Neglect and Care Violations: Nursing homes and caregivers can be held liable for failing to provide the necessary care, which includes not attending to a resident’s basic needs or medical requirements.
3. Civil Remedies: Under EADACPA, victims or their families can file civil lawsuits for damages, including medical costs, pain and suffering, and in cases of egregious abuse, punitive damages. The statute allows for the recovery of attorney’s fees and costs, making it easier for victims to pursue claims.
4. Criminal Penalties: Those found guilty of elder abuse can face criminal charges ranging from misdemeanors to felonies, depending on the severity of the harm inflicted on the victim. Penalties may include imprisonment, fines, or both.

How to Identify Signs of Nursing Home Abuse

Recognizing the signs of nursing home abuse is crucial to stopping it early. Common warning signs include:

• Unexplained injuries such as bruises, cuts, or broken bones.
• Sudden changes in behavior, including depression, anxiety, or withdrawal.
• Poor hygiene, malnutrition, or dehydration.
• Bedsores or other medical conditions that have not been properly treated.
• Unexplained financial transactions or changes in legal documents such as wills or powers of attorney.

If you notice any of these signs, take action immediately.

What to Do If You Suspect Abuse

If you believe that your loved one is a victim of nursing home abuse, it is important to act quickly. Here are the steps you can take:

1. Report the Abuse: In California, you can report suspected abuse to Adult Protective Services (APS) or the Long-Term Care Ombudsman Program. In cases of immediate danger, call 911.
2. Document the Evidence: Keep detailed records of your observations, including dates, names, photographs of injuries, and any conversations with staff or administrators.
3. Consult a Nursing Home Abuse Attorney: Navigating the legal complexities of nursing home abuse claims requires expertise. An experienced attorney can help you gather evidence, file claims, and pursue compensation on behalf of your loved one.

Filing a Lawsuit: Holding Nursing Homes Accountable

In addition to reporting the abuse, filing a civil lawsuit is one of the most effective ways to hold nursing homes and caregivers accountable. A nursing home abuse attorney will help you build a case by:

• Investigating the facility’s history of care violations or past abuse claims.
• Interviewing staff, residents, and other witnesses.
• Working with medical experts to document the extent of the injuries and the standard of care that should have been provided.

Conclusion

Nursing home abuse is a tragic reality that affects thousands of elderly individuals across Los Angeles and California. However, the law offers powerful tools to protect victims and their families. If your loved one has suffered abuse or neglect in a nursing home, it is important to understand your rights under the Elder Abuse and Dependent Adult Civil Protection Act and seek legal assistance.

At Steven M. Sweat, Personal Injury Attorneys, APC, we are dedicated to helping families pursue justice for their elderly loved ones. Contact us today to schedule a free consultation and learn how we can assist you in holding negligent nursing homes accountable. Call 24/7 at 866-966-5240

Sources:

• California Welfare and Institutions Code § 15600 et seq. (Elder Abuse and Dependent Adult Civil Protection Act)

Factual and procedural background

Brandon Nelson was a 26-year-old engineering graduate who developed acute psychosis in Jan. 2018. He told a police officer friend that he needed to borrow a handgun to kill himself because he felt evil and animal-like. The friend called the police, and Brandon was placed on a psychiatric hold for 72 hours in an inpatient psychiatric facility. He was subsequently treated for six weeks, first in Pasadena at Las Encinas Mental Hospital (LEMH) and subsequently in Laguna Beach at Mission Hospital. The hospital records at LEMH noted that Brandon was delusional, paranoid, believed he was being recorded, was fearful, and was considered gravely disabled. LEMH discharged him on Feb. 23rd. He was then admitted to Mission Hospital three days later on Feb. 26 on a new psychiatric hold after he again threatened to commit suicide. Brandon signed a durable power of attorney (POA) on Feb. 27, granting his father, Allen Nelson, power of attorney to handle Brandon’s financial affairs and personal care, including the ability to use Brandon’s resources for placement in a residential care or skilled nursing facility.

Mission Hospital completed a certification review on March 1 and found that Brandon was still gravely disabled and in danger of self-harm and recommended that his hold be extended for 14 days. However, he was discharged from Mission Hospital on March 7. On March 6, one doctor found that Brandon required ongoing inpatient care. On March 7, however, a second doctor found that he should be released to the care of his parents so that they could find a residential placement with appropriate licensing to handle his psychiatric needs. Instead of notifying his parents, Mission Hospital instead released him to the care of Sovereign Health of San Clemente, a dual diagnosis and sober living facility that was not licensed to provide the type of care Brandon required.

Upon his arrival at Sovereign Health, Brandon signed an arbitration agreement as a part of his intake paperwork. The Sovereign employee who did his intake testified that she didn’t recall doing it but also testified that Brandon was agitated, so she requested that he be seen by a licensed clinician. He was seen by a licensed clinical social worker on the evening of March 7, and she performed a biopsychosocial assessment and found that he came without his psychotropic medication, which was precipitating his crisis. The assessment stated that he had been without his psychotropic medication for 24 hours and also noted that Brandon was experiencing auditory hallucinations, thought that people on television were talking to him, and knew that his thinking was impaired. She stated that he was lying in a fetal position and howling. He also yelled for the voices in his head to stop telling him negative things. She wrote that his symptoms decreased after he took his medication. The social worker wrote that he needed to be supervised 24 hours per day because of his high risk of decompensation without medication.

The following day, Sovereign waited until 6:20 pm to give Brandon his medication while they waited for his prescription to be transferred to one of Sovereign’s own pharmacies. At 7 pm, Brandon again began screaming. However, the facility allowed him to return to his room unsupervised at 7:45 pm, where he hung himself from a sprinkler with the drawstring from his pants.

Brandon’s parents, Allen and Rose Nelson, filed a lawsuit against Sovereign for wrongful death. They also included causes of action on Brandon’s behalf for negligence, dependent adult neglect or abuse, negligence per se, fraud, and negligent misrepresentation. Sovereign filed a motion to compel arbitration based on the arbitration agreement that Brandon allegedly signed. The motion was denied. The court found that the defendant had not properly authenticated Brandon’s signature and that the agreement was unconscionable and unenforceable. Sovereign filed an appeal.

Issue: Whether the trial court erred when it denied Sovereign’s motion to compel arbitration?

Sovereign argued that the trial court erred when it denied Sovereign’s motion to compel arbitration and in its finding that Sovereign had not properly authenticated Brandon’s signature. It also argued that an arbitrator instead of a court should have decided the preliminary matters, including the case’s arbitrability.

Rule: The party arguing for arbitration must prove the agreement existed, and the party opposing arbitration must present evidence of a defense such as its unconscionability.

The California Arbitration Act is meant to ensure that arbitration agreements are enforced according to their terms. However, the party moving to compel arbitration must present evidence showing an arbitration agreement exists by a preponderance of the evidence. The party opposing a motion to arbitrate must then present evidence showing that the agreement is unconscionable or that another defense applies.

Analysis

Parties can agree for an arbitrator to resolve their disputes over preliminary matters instead of the court when a motion to compel arbitration is filed or agree to delegate the authority to determine an arbitration agreement’s enforceability to an arbitrator. Sovereign argued that the arbitration agreement purportedly signed by Brandon included a delegation clause, so the court should not have determined whether the agreement was enforceable and should have instead granted the motion to compel arbitration. Under California law, there is a presumption that the arbitrability of an agreement should be initially determined by the court unless there is clear language agreeing for the decision to be delegated to an arbitrator.

Sovereign also argued that the Federal Arbitration Act applied instead of the California Arbitration Act and said that its agreement with Brandon involved interstate commerce. The defendant relied on the testimony of the intake worker, who testified that Sovereign obtained supplies and food from out-of-state vendors for the use of its residents. The appeals court noted that there is little difference between the FAA and the CAA since both presume that the arbitrability of an agreement should be initially decided by a court unless the parties clearly and unmistakably agreed to delegate the duty to an arbitrator. Sovereign argued that the parties implicitly agreed to delegate the determination of the scope and enforceability of the arbitration agreement by a statement that said that the parties desired to have disputes resolved by an arbitrator.

The Court of Appeal found that this was not clear and unmistakable and did not mention the determination of arbitrability. Sovereign also argued that the rules of the American Arbitration Association (AAA) should apply but admitted that those rules had not been given to Brandon at the time the contract was signed even though the agreement stated that they were incorporated by reference. It argued that the AAA rules would bind Brandon and his parents to arbitrate the arbitrability of the contract. However, Sovereign did not present any precedent holding that a reference to those rules would bind a party who was unsophisticated. The Court of Appeal found that the trial court judge did not err by making the decision about arbitrability.

Next, the court considered whether the agreement was unconscionable and unenforceable. The court noted that unconscionability includes both procedural and substantive components. Determining whether a contract is procedurally unconscionable involves considering whether the bargaining parties were roughly equal or if they instead were unequal, making the contract a contract of adhesion.

A contract is substantively unconscionable when it is substantially unfair and oppressive to the party that did not draft it. A court cannot refuse to enforce an agreement unless it finds that it is both procedurally and substantively unconscionable. The Court of Appeal found that the contract was a contract of adhesion and that there was no evidence that Brandon had equal bargaining power. It noted that Brandon was not provided a copy of the AAA rules, which amounted to oppression and a surprise. The court also noted that the biopsychosocial assessment indicated that Brandon had an impaired mental state, so it would be unlikely he would have been able to understand or comprehended what he signed because he was a mentally impaired dependent adult. The Court of Appeal thus found that it was procedurally unconscionable.

It next considered whether the agreement was also substantively unconscionable, which occurs when an agreement is unfairly one-sided. The Court of Appeal pointed out that the arbitration agreement expressly waived Brandon’s right to sue Sovereign for anything related to his stay while the agreement did not waive Sovereign’s ability to sue Brandon. The release also waived Sovereign’s liability for any negligence that might occur, including dependent abuse or neglect. The waivers also purportedly extended to the rights of third parties to pursue claims against Sovereign or hold the company liable for negligence and that Brandon agreed to reimburse the company for any legal fees and costs it might have to pay to defend itself against a third-party claim related to his stay. The Court of Appeal found that the arbitration agreement was unconscionable and unenforceable.

Conclusion

The Court of Appeal affirmed the trial court’s ruling and returned the case for further proceedings. It also awarded the plaintiffs their costs on appeal.

Consult an injury attorney

If your loved one was forced to sign an arbitration agreement when he or she entered a nursing home or residential care facility that purported to waive his or her rights to pursue claims against the facility for dependent adult abuse or neglect, you should speak to an attorney if your loved one was abused or neglected in the facility. Contact the Steven M. Sweat, Personal Injury Lawyers, APC for a free case evaluation by calling 866-966-5240.

Factual and Procedural Background

In the case of Samantha B., et. al. v. Aurora Vista Del Mar, LLC, et. al., Cal. Ct. App. Case No. B30231, several women who were patients of a mental health hospital alleged that they were repeatedly sexually abused by an unlicensed attendant. Samantha B., Danielle W., and C. F. were patients at Aurora Vista Del Mar, a licensed psychiatric hospital. The facility was owned by Signature Healthcare Services.

In 2011, Aurora hired Juan Valencia to work in the hospital as an unlicensed mental health worker. At the time he was hired, Valencia was presented with a form in which he was asked if he had ever been arrested for an offense that would require sex offender registration, and he answered no. The hospital hired a third-party consumer reporting agency to conduct a background check on Mr. Valencia that only went back seven years before his hiring date. Consumer reporting agencies are not allowed to report arrests not leading to convictions that are older than seven years.

Valencia had a misdemeanor conviction 11 years before his hiring date. He had originally been charged with sexual abuse of a minor, which would have required him to register as a sex offender. However, he pleaded that charge down to the misdemeanor for which he was convicted, and the misdemeanor conviction did not require sex offender registration.

Since Valencia was hired to work as an unlicensed mental health worker, the hospital’s background check did not include fingerprint checks. If the hospital had instead hired licensed certified nurse’s aides (CNAs), the background check would have revealed Valencia’s past arrest and conviction. The hospital’s unlicensed mental health worker positions did not require that employees have any previous experience, training, or education. Upon being hired, Valencia completed a two-day orientation. During the orientation, he received around five minutes of training about countertransference, which occurs when caregivers form emotional bonds with their patients.

After his initial orientation, Valencia was only required to sign forms annually about relationships between patients and staff. Aurora did not test him or other mental health workers about their understanding of patient boundaries.

Aurora’s policy allowed male mental health workers to be in the rooms of female patients unsupervised for up to 20 minutes at a time as long as the doors were kept open. However, the charge nurse remained at the nurse’s station for much of the time and could not see into the rooms from that vantage point.

In 2013, while Valencia was still working at the hospital, Samantha B., Danielle W., and one other woman were patients. All three were suffering from psychosis and could not consent to sex. Valencia allegedly engaged in sexual relations with all three women while they were patients in the facility. Other workers in the hospital called Valencia “Rapey Juan.” When one staff reported this nickname to the charge nurse, she only rolled her eyes.

Earlier, in 2004, a former employee had raped a 17-year-old patient in the same hospital. At that time, the clinical director recommended that Aurora increase its education to improve the ability of workers to set boundaries with patients. However, the chief executive officer (CEO) told the clinical director that Signature Healthcare Services would not pay for the additional training and education component on boundaries.

On Nov. 29, 2013, Danielle W. was discharged from Aurora. The following day, a student nurse encountered Danielle W. together with Valencia at a party and reported that they appeared to be involved romantically. Valencia was suspended and subsequently terminated on Dec. 12, 2013, following a two-day investigation. Even though the investigation revealed that the relationship between Valencia and Danielle B. was sexual, the facility failed to report it to the state for a year. Instead, the hospital only reported the sexual relationship after it became public knowledge.

Samantha B. was discharged from Aurora on March 6, 2013. She filed a lawsuit against Aurora in Feb. 2015 and subsequently added Signature Healthcare Services as a defendant in June 2015. Danielle W. filed a similar lawsuit against Aurora in Aug. 2015, and the third patient, C.F., was discharged on April 29, 2013, and filed a lawsuit in June 2015.

The lawsuits were consolidated into a single action, and the case went to a jury trial. The jury returned verdicts in favor of all three plaintiffs. The jury awarded $3 million to Danielle W., $3.75 million to Samantha B., and $6.5 million to C. F. All of the damages awarded were noneconomic. Each plaintiff was also awarded $50,000 in punitive damages. The jury found that Signature was 30% at fault, Aurora was 35% at fault, and Valencia was 35% at fault. Aurora and Signature appealed.

Issue: Whether the court erred by not reducing the noneconomic damages award to the plaintiffs to $250,000?

Both Aurora and Signature argued that all three plaintiffs’ actions were time-barred and that even if they were not, their noneconomic damages should have been capped at $250,000 under MICRA. The plaintiffs argued that the time limitation and damages cap under MICRA did not apply and instead, the rules under the Elder Abuse Act should apply.

Rule: Lawsuits alleging professional medical negligence must be filed within one year of when the injury occurred or within one year of when it reasonably should have been discovered. Under MICRA, non-economic damages are capped at $250,000.

Under Cal. Civ. Code Proc. § 340.5, claims that allege medical malpractice must be filed within one year of the date of the injury or one year from the date the injury should reasonably have been discovered. This statute of limitations is included in MICRA. The defendants argued that it barred all three plaintiffs’ lawsuits against Aurora and Signature. The defendants also argued that non-economic damages are limited in medical malpractice actions under Cal. Code Civ. Proc. § 3333.2 to no more than $250,000.

The plaintiffs argued that MICRA did not apply and that instead, the Elder Abuse Act did. They argued that under the Elder Abuse Act, their complaints were not time-barred and that their non-economic damages should not be capped.

Analysis

The court began by looking at the time limitations for filing claims under MICRA. While it noted that complaints alleging professional negligence under MICRA are subject to the one-year statute of limitations, there is a four-year statute of limitations when the Elder Abuse Act applies. It then considered whether MICRA or the Elder Abuse Act applied to the plaintiffs’ case.

Unlike MICRA, which only applies in situations involving professional negligence, the Elder Abuse Act applies when the professional conduct is reckless, fraudulent, malicious, or oppressive in failing to prevent the abuse or neglect of elderly or dependent adults. The court noted that claims under the Elder Abuse Act are distinct and separate from claims under MICRA.

In Delaney v. Baker, 20 Cal.4th 23 (1999), the California Supreme Court rejected a defendant’s argument that the meaning of professional negligence applies to any situation involving a provider’s services and instead found that the heightened legal remedies under the Elder Abuse Act apply when a plaintiff proves the conduct was reckless.[5]

The court then considered whether the Elder Abuse Act or MICRA applied to the plaintiffs’ case. It noted that the hospital and its parent company had previous knowledge that a patient could be sexually abused by a male mental health worker because of the 2004 incident but failed to institute any additional education or training about boundaries. It also noted that failing to require employees who work with vulnerable adults to have licensure and more thorough background checks was also reckless.

Conclusion

The court found that the Elder Abuse Act applied. This meant that the claims were not filed beyond the statute of limitations, and the damages awards were not excessive. The trial court was affirmed, and the defendants were ordered to pay the plaintiffs’ costs on appeal.

Talk to an Experienced Attorney

If you were abused as a dependent adult while you were under the care of a hospital or other facility, you should consult an experienced injury and abuse lawyer. The attorneys at the law firm of Steven M. Sweat, Personal Injury Lawyers, APC can review your situation and explain the potential remedies that might be available. Call us today at 866-966.5240 for a free and confidential consultation.

Nursing home abuse in California is still a huge problem. By way of example: The case of an 88-year-old Sacramento, California woman found dead in 2013 after living in a residential nursing home was unbelievably tragic. According to press reports, the elderly woman had developed severe bedsores, triggering sepsis–a life-threatening bacterial infection–and ultimately her death.

Who was to blame for this terrible neglect of an elderly Californian?

To the Department of Justice, it was the owner of the elder-care facility in which she had lived for many years. The federal government lodged felony charges, including manslaughter, against the operator. Local media called it one of the first prosecutions of its kind.

The ultimate resolution of this nursing home neglect case wasn’t immediately available, but the attention paid to such a high-profile case serves to highlight that elder abuse and elder neglect are serious crimes and severely punishable by law. In California, the state’s Welfare and Institutions Code Section 15610.57 requires that anyone caring for an adult exercise a “degree of care” that a reasonable person “in a like position” would exercise.

The statute defines neglect by the following (but is not limited to):

• Lack of medical care for physical or medical needs.
• Failure to protect from “health and safety hazards” and to “prevent malnutrition or dehydration.”
• Not assisting in personal hygiene or the “provision of food, clothing or shelter” and more.

Advocates with the Elder Justice Now initiative say the elderly deserve to be free from “abuse, neglect and exploitation.”

According to the National Center on Elder Abuse, as many as 10 percent of respondents in one major study said they experienced elder abuse within the previous year. Another study highlighted by the organization says “only one in 14 cases of elder abuse ever comes to the attention of authorities.”

Who abuses elders?

While the vast majority of abusers are family members according to the NCEA, many U.S. elderly have their care coordinated by supposedly trusted and regulated caregivers.

The federal Centers for Disease Control estimates that in 2012 approximately 8 million U.S. residents were under the care of about 58,500 “paid, regulated long-term care services providers.”

So how can you tell if something is going wrong with the care you’ve coordinated? Advocates with Elder Justice Now say the signs and symptoms of abuse can come in many forms and are not limited to the following:

• Bruising or other obvious signs of physical abuse
• Signs of poor attention or hygiene, including bedsores and sudden weight loss
• Issues with caregivers, such as belittling behavior or anger
• Sudden changes in finances

For bedsores, it’s important to be armed with information about how they form and the different stages.

• Bedsores form from prolonged pressure on the skin, according to the Mayo Clinic.
• They can be “very difficult” to treat.
• The four stages outlined by Mayo Clinic experts can run from simply: “tender” skin to “exposed muscle, bone or tendons” and even dead tissue.
• The sores can form in different areas depending on mobility. For people in wheelchairs, bedsores may appear on the tailbone or backs of arms. Individuals who are confined to their beds may develop sores on their hips, backs of shoulders, the tailbone and other areas.

How can I learn more?

Government experts with the Administration on Aging have described bedsores as “indicators of possible neglect” and urge those who suspect abuse to seek out resources, which they list by state. If someone’s life is in danger, call 9-1-1.

For a free consultation with California nursing home abuse and neglect attorney or on any accident or injury claim call Steven M. Sweat, Personal Injury Lawyers, APC, APC toll free at 866-966-5240.

Additional Resources

Nursing Home Abuse and Neglect – Laws of California