ECONOMIC CRISIS CHECKLIST FOR TRUSTEES

ECONOMIC CRISIS CHECKLIST FOR TRUSTEES

HONOR THY MOTHER AND FATHER:

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HONOR THY MOTHER AND FATHER:
PREVENTING ELDER ABUSE THROUGH
EDUCATION AND LITIGATION
Sande L. Buhai* and James W. Gilliam, Jr.**

The elderly comprise one of the fastest growing groups in the
United States.1 Yet, problems involving abuse of the elderly have
long been ignored.2 Even when addressed, dealing with elder abuse
brings its own unique set of problems.3 Most importantly, the law
has the delicate task of balancing the protection of elderly persons
while still respecting their personal autonomy.4 That is, although we
desire to prevent elder abuse, we must be careful not to assume that

* Clinical Professor of Law, Loyola Law School. I would like to thank
the firm of Wilkes & McHugh and especially Stephen Garcia for their support
of the Elder Abuse Symposium. I would also like to thank the staff and editors
of the Loyola of Los Angeles Law Review for their hard work on this
Symposium. Finally, I would like to honor my parents, Marvin and Lorraine
Buhai, for their lifelong support.
** Candidate, J.D., Loyola Law School, May, 2003; B.S., Middle
Tennessee State University, 2000; Chief Symposium Editor, Loyola of Los
Angeles Law Review, 2002–2003; Extern, The Honorable Harry Pregerson,
United States Court of Appeals for the Ninth Circuit, Fall 2002. Special thanks
are owed to Dr. Maria Clayton, Middle Tennessee State University, for firstrecognizing my writing ability and for teaching me how to develop it further; I
will always be in her debt. I would also like to thank my loving partner,
Kelvin Lamont Walker, for his unending support of my academic endeavors.
Finally, I dedicate my participation in this Symposium to my mother who wastaken from my life far too soon, but is never far from my heart.

1. See Seymour Moskowitz, Golden Age in the Golden State:
Contemporary Legal Developments in Elder Abuse and Neglect, 36 LOY. L.A.
L. REV. 589 (2003).
2. See Martin Ramey, Comment, Putting the Cart Before the Horse: The
Need to Re-examine Damage Caps in California’s Elder Abuse Act, 39 SAN
DIEGO L. REV. 599, 602 (2002) (“[S]even out of every eight instances of[elder] abuse are never reported.”).
3. See Moskowitz, supra note 1, at 590–96.
4. See Kurt Eggert, Lashed to the Mast and Crying for HELP: How Self-
Limitation of Autonomy Can Protect Elders from Predatory Lending, 36 LOY.
L.A. L. REV. 693 (2003).
565


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the elderly are incompetent. Other problems involve dealing with
the severe impact of financial abuse5 and physical abuse.6 A senior’s
age, health, and limited finances make it difficult for him or her to
fully recover from these types of abuse.7 Finally, the most recent
General Accounting Office report shows significant problems in
almost one-third of all California nursing homes.8

To address these difficult issues and to examine how the legal
system can help resolve these problems, Loyola Law School held a
Symposium on April 26, 2002, entitled Honor Thy Mother and
Father: Symposium on the Legal Aspects of Elder Abuse.9 The
Symposium focused on two approaches—academic and litigation—
to solving the serious problem of elder abuse in our society. The first
half of the Symposium consisted of three academic presentations
discussing various aspects of elder abuse. In Part I of this Article,
we provide a basic roadmap of these articles by Professor Seymour
Moskowitz, Jeanne Finberg, and Professor Kurt Eggert.

The second half of the Symposium consisted of a panel
discussion highlighting the cutting-edge issues in the litigation of
elder abuse cases against skilled nursing facilities (i.e., nursing
homes). Part II of this Article will attempt to summarize and explain
some of those issues.

I. ROADMAP
In the comprehensive lead article, Golden Age in the Golden
State: Contemporary Legal Developments in Elder Abuse and
Neglect, Professor Seymour Moskowitz begins his discussion by

5. See Jeanne Finberg, Financial Abuse of the Elderly in California, 36
LOY. L.A. L. REV. 667 (2003).
6. See Moskowitz, supra note 1, at 603-04.
7. See id.
8. See id. at 594.
9. Indeed, the federal government’s recent creation of “Nursing HomeCompare” in November, 2002—a Web site designed to provide individualswith “detailed information about the past performance” of all Medicare and
Medicaid certified nursing homes in the United States—illustrates further thetimeliness and importance of our Symposium. Nursing Home Compare, at
http://www.medicare.gov/NHCompare/home.asp (last visited Dec. 29, 2002)
(providing information on such topics as the percentage of residents withphysical restraints, the percentage of residents with bed sores, deficiencies
found during annual inspections and complaint investigations, and staffinglevels).

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defining the main types of elder abuse and by illustrating its
prevalence throughout the nation and in California.10 In defining the
various types of elder abuse, Professor Moskowitz explains that
conduct is labeled as abusive depending on its duration, intensity,
and severity.11

He continues by considering the legal remedies available to the
elderly in tort law.12 Tort law provides relief for elder abuse through
some traditional means, including civil battery, negligence,
conversion, or fraud suits.13

Professor Moskowitz also discusses the civil litigation remedies
for nursing care abuse.14 In California, the Elder Abuse and
Dependent Adult Civil Protection Act (the EADACPA or “Elder
Abuse Act”) supplements tort remedies.15

Finally, Professor Moskowitz discusses the most promising
current legal developments and issues in elder abuse.16 Developing
responses to elder abuse in nursing homes include criminal
background checks of nursing home staff, video cameras in nursing
homes to deter mistreatment, and minimum staffing ratios for
nursing homes.17 In conclusion, Professor Moskowitz doubts the
ability of the law, in and of itself, to enact major social change in the
area of elder abuse, but he is optimistic that the combination of elder
abuse law, public awareness, additional research, and other
regulations could substantially reduce the incidence of elder abuse.18

In Financial Abuse of the Elderly in California, Jeanne Finberg
focuses particularly on the financial abuse of the elderly, as opposed
to physical abuse.19 In doing so, she surveys some of the most
common types of financial abuse. Ms. Finberg suggests that the best
ways to prevent the financial abuse of the elderly are to educate the

10. See Moskowitz, supra note 1, at 596–603.
11. See id at 597.
12. See id. at 604–31.
13. See id.
14. See id.
15. See CAL. WELF. & INST. CODE §§ 15600–15675 (West 2001).
16. See Moskowitz, supra note 1, at 637–64.
17. See id.
18. See id. at 665.
19. See Finberg, supra note 5.

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public and elders about long-term care and estate planning, and to
ensure that consumer laws are available for private enforcement.20

Finally, Professor Kurt Eggert contributed an article entitled,
Lashed to the Mast and Crying for HELP: How Self-Limitation of
Autonomy Can Protect Elders from Predatory Lending.21 Professor
Eggert’s article focuses on protecting elders from financial abuse,
while at the same time not sacrificing their autonomy by
overprotecting them. Professor Eggert focuses on predatory lending
in the context of the broader issue, balancing the autonomy of
persons who are elderly with protecting their rights and interests.
Professor Eggert argues that the autonomy of an elderly homeowner
is not determined solely by the freedom to enter into any loan he or
she may desire.22 In fact, avoiding the loss and humiliation
associated with predatory lending may actually increase autonomy.23
In a novel approach, Professor Eggert analogizes his predatory
lending solution to similar steps taken in the area of gambling.24

As these articles illustrate, elder abuse in our society is a serious
and growing problem—be it physical or financial. These three
articles address the problem in different ways: from a broad
perspective of the entire issue of elder abuse to a narrow focus on a
particular problem with a new and intriguing solution.

II. ELDER ABUSE LITIGATION
The following discussion illustrates some of the basic concerns25
that are pertinent to each particular side—be it the plaintiff or the
defense—in an elder abuse lawsuit, particularly in California.
Understanding how these types of lawsuits typically progress is
important, because as Professor Moskowitz points out, there are
many Americans who live in nursing homes.26 The following
discussion also highlights those areas of the law that are often in
question in elder abuse lawsuits, as discussed by the afternoon

20. See id. at 690–91.
21. See Eggert, supra note 4.
22. See id.
23. See id.
24. See id.
25. This Article only addresses select issues arising in elder abuse
litigation. There are certainly other issues, some raised by the panel, that are
not covered by this Article.
26. See Moskowitz, supra note 1, at 593–94.

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panelists,27 thereby providing the reader with an overview of some of
the most important issues to consider when preparing for an elder
abuse lawsuit. Finally, in considering bringing an elder abuse
lawsuit, it is interesting to note that the vast majority of verdicts in
elder abuse lawsuits are in favor of the defense.28

A. Background
California’s Elder Abuse Act29 was passed to protect the
particularly “vulnerable” elderly and those members of society who
rely on others for their daily care.30 The statute defines elder abuse,31
establishes a procedure for reporting such abuse,32 requires
fingerprinting of caregivers,33 and finally, provides for additional
remedies when elder abuse is proved by clear and convincing
evidence.34

The legislative intent included in the Act contains some of the
clearest language ever written by the California legislature,35

27. The panelists for the afternoon session consisted of the Honorable
Judge Carl West of the Los Angeles Superior Court, Mr. Stephen Garcia of thefirm of Wilkes & McHugh, and Mr. Rick Canvel of the firm of LaFollette,
Johnson, De Haas, Fesler & Ames.
28. See Moskowitz, supra note 1, at 630–31. However, those verdicts that
are in favor of plaintiffs are more likely to be publicized because of their highdollar amounts, thereby skewing the public perception about the typical resultof an elder abuse lawsuit. See, e.g., Estate of Woman Who Died of Untreated
Peritonitis Wins $5.2M Verdict, NURSING HOME LITIG. REP. 3:15, May 4,
2001, at 4 (discussing the $5.2 million verdict awarded “to the children of awoman who died after being released from a nursing home where she
developed an abdominal infection that went untreated”); Extendicare Settles
Florida Elder Abuse Case, NURSING HOME LITIG. REP. 3:9, Feb. 9, 2001, at 11
(reporting Extendicare’s ceasing of all nursing home operations in Florida after
settling a case that had resulted in a $20 million verdict); Trial Judge Affirms
$78 Million Verdict in Elder Abuse Case, NURSING HOME LITIG. REP. 3:23,
Aug. 24, 2001, at 3 (stating that an Arkansas judge “declined to overturn or
reduce a $78.43 million jury verdict awarded in a case against the nursinghome . . . ”).
29. CAL. WELF. & INST. CODE §§ 15600–15675 (West 2001).
30. See id. § 15600(d).
31. See id. § 15610.07.
32. See id. §§ 15630–15634.
33. See id. § 15660(1).
34. See id. § 15657.
35. See id. § 15600(a) (“[E]lders and dependent adults may be subjected toabuse, neglect, or abandonment and . . . this state has a responsibility to protect
these persons.”).

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explicitly recognizing its duty to protect elderly persons and
dependent adults.36 Further, the Act was designed to motivate
lawyers to take these types of cases.37 Previously, the unavailability
of non-economic damages such as pain and suffering once a patient
died38 made attorneys apprehensive about taking these cases, fearful
that the patient would die during the course of the litigation.39 The
Elder Abuse Act modifies this typical arrangement, thereby allowing
a decedent’s family to pursue pain and suffering damages up to
$250,000.40

Indeed, if it were not for the generous provisions of the Elder
Abuse Act, such as the availability of attorney’s fees41 and punitive
damages42 for successful suits, it would be considerably more
difficult to get many viable elder abuse cases litigated.43

To get the enhanced remedy of punitive damages under the Act,
the plaintiff must prove by clear and convincing evidence that the
defendant either fraudulently, maliciously, or oppressively

36. See id.
37. See id. § 15600(h) (“[F]ew civil cases are brought in connection with
this abuse due to . . . lack of incentives to prosecute these suits.”); see also id. §
15600(j) (“It is the further intent of the Legislature in adding [the attorney’s
fees provision] to enable interested persons to engage attorneys to take up thecause of abused elderly persons and dependent adults.”).
38. See CAL. CIV. PROC. CODE § 377.34 (West 1982); see also County of
Los Angeles v. Superior Court, 21 Cal. 4th 292, 295, 981 P.2d 68, 69–70, 87
Cal. Rptr. 2d 441, 443 (1999) (“When, as here, a plaintiff dies while a personalinjury action is pending . . . ‘the damages recoverable are limited to the loss or
damage that the decedent sustained or incurred before death, . . . and do not
include damages for pain, suffering, or disfigurement.’”).
39. This is particularly a problem because most of these cases are taken on
a contingency fee basis where the lawyers must pay litigation costs in advanceand cannot recover any fees if the patient dies.
40. See CAL. WELF. & INST. CODE § 15657(b) (West 2001). But see
Ramey, supra note 2, at 605 (critiquing the low amount of damages allowedand arguing that reform of the Elder Abuse Act is “long overdue”).
41. See CAL. WELF. & INST. CODE § 15657(a) (“The court shall award to
the plaintiff reasonable attorney’s fees and costs.”).
42. Compare id. § 15657 (allowing the imposition of punitive damages
upon meeting the required standard of proof), with CAL. CIV. PROC. CODE §
425.13 (West Supp. 2002) (precluding the imposition of punitive damages for
claims based on professional negligence).
43. Indeed, the California legislature recognized this when enacting thestatute, stating that “few civil cases are brought in connection with this abuse
due to problems of proof, court delays, and the lack of incentives to prosecute
these suits.” CAL. WELF. & INST. CODE § 15600(h) (West 2001).

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disregarded the patient’s care.44 This is also the standard typically
required under the California Civil Code for the imposition of
punitive damages.45 Therefore, because the standard is the same,
satisfying the punitive damages provision under the Act is not
usually an issue in elder abuse lawsuits .46

Plaintiff’s counsel specializing in elder abuse lawsuits focus on
proving the guilt of the corporate entity running the skilled nursing
facilities.47 It is important to stress the case as elder abuse, which is
defined as “a pattern of conscious disregard of a known peril” by the
corporation—the “ongoing criminal enterprise”—that owns the
skilled nursing facility.48 The plaintiff frames the issue as a
determination of whether the harmful course of conduct at issue
occurred because earlier violations and incidents, often caused by
chronic understaffing, were not rectified by the corporation.49

On the other hand, defense counsel approaches elder abuse
litigation from a different, narrower perspective. The defense frames
the issue as whether an injury occurred to this particular plaintiff on a
specific day, and whether it was caused by something that the facility
did on that day.50

Many of the most important underlying issues involved in elder
abuse lawsuits remain unresolved. Because there are no clear

44. See id. § 15657; Delaney v. Baker, 20 Cal. 4th 23, 31, 971 P.2d 986,990, 82 Cal. Rptr. 2d 610, 614 (1999).
45. See CAL. CIV. CODE § 3294 (West 1997).
46. Compare CAL. WELF. & INST. CODE § 15657 (allowing the impositionof punitive damages upon proving abuse by clear and convincing evidence)
with CAL. CIV. CODE § 3294 (allowing punitive damages for clear and
convincing evidence of oppression, fraud, or malice).
47. Indeed, “[i]t is the plaintiff’s attorney’s responsibility to identify
injuries and incidents that are the result of chronic institutional neglect.” Susan
N. Childers, Plaintiff’s Perspective: Pre-Suit Considerations in Nursing Home
Litigation, ARK. LAW., Summer 2001, at 13.
48. Stephen Garcia, Presentation at Honor Thy Mother and Father: A
Symposium on the Legal Aspects of Elder Abuse at Loyola Law School (Apr.
29, 2002) (transcript on file with Loyola of Los Angeles Law Review); see also
Moskowitz, supra note 1, at 626 (“In 1999–2000, fifty-five percent of the
nursing facilities in the United States were owned or operated by nationalchains” and “[s]ixty-seven percent of all facilities were for-profit . . . .”).
49. See Garcia, supra note 48.
50. See Rick Canvel, Presentation at Honor Thy Mother and Father: A
Symposium on the Legal Aspects of Elder Abuse at Loyola Law School (Apr.
29, 2002) (transcript on file with Loyola of Los Angeles Law Review).

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answers to these questions, this Article does not attempt to predict
how the courts will rule on such issues in future lawsuits. Rather, it
is the authors’ hope that attorneys on both sides of future elder abuse
lawsuits will use this Article to better prepare themselves by having
advance knowledge about some of the issues that are likely to arise
throughout the course of the lawsuit.51

B. Issues Arising in the Pleading of Elder Abuse Cases
This Section will discuss three issues that arise in the pleading
of elder abuse cases. The first is whether elder abuse is a separate
cause of action or merely an enhanced remedy for negligence. The
second question is whether elder abuse is simply a claim for
professional negligence. The third question focuses on the issue of
chronic understaffing, discussing whether it is grounds for an action
under elder abuse or professional negligence. Finally, this Section
concludes with a discussion of the importance of these issues.

1.
Statute of limitations: is elder abuse a separate cause of action or
simply an enhanced remedy?
If elder abuse is considered a separate cause of action, the statute
of limitations for the claim stretches from one year to three years.52
The argument supporting elder abuse as a separate cause of action
relies on Delaney v. Baker,53 a recent California Supreme Court case.
In Delaney, the surviving daughter of an eighty-eight-year-old
woman who died after being placed in the facility for a broken ankle
sued the nursing home.54 The woman had been “left lying in her

51. In fact, an attorney who practices in the area of elder abuse has
suggested that it will take the “members of the private bar” to make a
difference in the “epidemic of elder abuse in the State of California.” Kevin P.
Kane, Selecting a Nursing Home: Elder Abuse Detection and Prevention,
ORANGE COUNTY LAW., Aug. 2002, at 15, 23.
52. See CAL. CIV. PROC. CODE § 340(3) (West 1982) (stating that the statute
of limitations for wrongful death is one year); id. § 338 (stating that the statuteof limitations for statutorily created causes of action is three years).
53. 20 Cal. 4th 23, 32, 971 P.2d 986, 991, 82 Cal. Rptr. 2d 610, 615 (1999)
(accepting amici curiae’s position that “causes of actions within the scope of
section 15657 [Elder Abuse Act] are not ‘cause[s] of action . . . based on . . .
professional negligence’ within the meaning of section 15657.2 [professionalnegligence].”) (alterations in original).
54. See id. at 27, 971 P.2d at 988, 82 Cal. Rptr. 2d at 612.

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own urine and feces for extended periods of time.”55 The court
explicitly recognized that “rapid turnover of nursing staff, staffing
shortages, and the inadequate training of employees” resulted in the
neglect.56 The court held that this conduct gave rise to a claim for
elder abuse, aside from any claim for professional negligence.57

On the other hand, if claims for elder abuse are basic negligence
claims, the statute of limitations remains the usual one-year limit for
torts.58 In Community Care and Rehabilitation Center v. Superior
Court,59 the California Court of Appeal, post-Delaney, seems to have
held that the remedies available under the Elder Abuse Act are “an
additional remedy not available in other tort actions,”60 rather than a
separate cause of action. In Community Care, a surviving spouse
brought suit against a nursing home after his wife died in the facility
as a result of a hip replacement surgery.61 The court held that the
spouse could possibly recover punitive damages against the nursing
home under the Elder Abuse Act, “even in the context of
professional medical malfeasance,” but it did not use language that
indicated whether pursuing an elder abuse claim would be a separate
cause of action.62

Neither the Delaney nor the Community Care decisions directly
address the issue of the applicable statute of limitations for elder
abuse claims. Therefore, this issue remains unresolved.63 If, as the
authors contend, elder abuse and professional negligence are two
separate causes of action, then each would have its own respective
statute of limitations.

55. Id.
56. Id.
57. See id. at 32–33, 971 P.2d at 991–92, 82 Cal. Rptr. at 615–16.
58. See CAL. CIV. PROC. CODE § 340(3) (West 1982 & Supp. 2002);
Canvel, supra note 50.
59. 79 Cal. App. 4th 787, 94 Cal. Rptr. 2d 343 (Cal. Ct. App. 2000).
60. Id. at 792, 94 Cal. Rptr. 2d at 346 (emphasis added) (suggesting that
elder abuse is a tort rather than a statutorily-created cause of action).
61. See id.
62. Id. at 797, 94 Cal. Rptr. 2d at 350.
63. However, refer to the discussion below concerning whether a claim for
elder abuse is the same as a claim for professional negligence.

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2.
Pleading elder abuse or professional negligence: standard of care
and burden of proof
The second issue—whether to pursue a lawsuit as a professional
negligence case64 or an elder abuse case—can be difficult because
“some health care institutions, such as nursing homes, perform
custodial functions and provide professional medical care.”65
Indeed, this decision can have a dramatic impact on the course of the
litigation.

Perhaps the most important difference that arises when the case
is pled as a professional negligence case rather than elder abuse is the
standard of care that must be shown to constitute negligence. In a
professional negligence case, the standard of care required of the
defendant is to exercise “‘the knowledge, skill and care ordinarily
possessed and employed by members of the profession in good
standing.’”66 Further, this standard can only be established by expert
testimony.67 In an elder abuse case, the plaintiff must show
“reckless, oppressive, fraudulent, or malicious conduct”68 in the
provision or lack of provision of services, regardless of how others in
the community operate. The applicable standard of care is that of a
reasonable person in similar circumstances.69

64. See CAL. CIV. CODE § 3333.2 (West 1997). Section 3333.2 defines
professional negligence as:
[A] negligent act or omission to act by a health care provider in therendering of professional services, which act or omission is the
proximate cause of a personal injury or wrongful death, provided thatsuch services are within the scope of services for which the provider is
licensed and which are not within any restriction imposed by thelicensing agency or licensed hospital.
Id.

65. Delaney, 20 Cal. 4th at 34, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617
(emphasis added).
66. Id. at 31, 971 P.2d at 991, 82 Cal. Rptr. 2d at 615 (quoting Flowers v.
Torrance Mem’l Hosp. Med. Ctr., 8 Cal. 4th 992, 997–98, 884 P.2d 142, 145–
46, 35 Cal. Rptr. 2d 685, 688–89 (1994)).
67. See Howard v. Owens Corning, 72 Cal. App. 4th 621, 632, 85 Cal.
Rptr. 2d 386, 394 (Cal. Ct. App. 1999) (stating that the standard of care inprofessional negligence cases must be established by expert testimony).
68. Delaney, 20 Cal. 4th at 32, 971 P.2d at 991, 82 Cal. Rptr. 2d at 615.
69. See id. at 32 n.5, 971 P.2d at 991 n.5, 82 Cal. Rptr. 2d at 615 n.5.
Reckless means that a person is aware of and consciously disregards a
substantial and unjustifiable risk that his or her act will cause injury.
The risk shall be of such nature and degree that disregard thereof

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Additionally, the burden of proof is higher under the Elder
Abuse Act than in a professional negligence case. To recover under
the Elder Abuse Act, the plaintiffs must prove their case with “clear
and convincing evidence.”70 Because the professional negligence
statute does not specify a particular burden of proof, it is the more
lenient standard of “preponderance of the evidence,” as is the typical
standard in most civil lawsuits.71

Finally, if elder abuse is pled as a form of professional
negligence, the case may be subjected to the limitations provided by
the Medical Injury Compensation Reform Act (MICRA) statutes.72
MICRA was passed in response to the rapidly rising costs of medical
malpractice insurance in the 1970s out of a concern for some
hospitals’ and doctors’ chances for continued viability.73 Taken
together, these statutes operate to protect medical care providers by
limiting the scope and length of viability for an injured resident’s
claim.

The defense in Delaney argued that any act taken under the
scope of licensure is professional negligence. The defense stressed
that the acts or omissions that lead to claims of elder abuse fall
within the scope of the defendants’ licensure because they occurred

constitutes a gross deviation from the standard of conduct that a

reasonable person would observe in the situation.
Id. (quoting from the definition of “reckless” as defined for the jury in thecase).

70. CAL. WELF. & INST. CODE § 15657 (West 2001).
71. See Stoner v. Williams, 46 Cal. App. 4th 986, 1001, 54 Cal. Rptr. 2d243, 251 (Cal. Ct. App. 1996) (“In civil cases, liability generally must beproved by a preponderance of the evidence.”).
72. MICRA “refers to several statutes that restrict or place conditions upon
causes of action and remedies directed at ‘health care providers’ for
‘professional negligence.’” Delaney, 20 Cal. 4th at 28–29 n.2, 971 P.2d at 989
n.2, 82 Cal. Rptr. 2d at 613 n.2 (quoting CAL. CIV. PROC. CODE § 364). The
statutes include CAL. CIV. PROC. CODE § 364 (West 1982) (requiring a ninety-
day notice prior to bringing a lawsuit); CAL. CIV. PROC. CODE § 667.7 (West1987) (permitting periodic payment of any judgment against the provider);
CAL. CIV. PROC. CODE § 1295 (West 1982) (requiring a certain type of noticefor providers’ mandatory arbitration provisions); CAL. BUS. & PROF. CODE §
6146 (West 1990) (providing caps on attorney contingency fees); CAL. CIV.
CODE § 3333.1 (West 1997) (making admissible evidence of workers’
compensation or disability payments); and id. § 3333.2(b) (providing a
$250,000 cap on noneconomic damages).
73. See Delaney, 20 Cal. 4th at 33–34, 971 P.2d at 992, 82 Cal. Rptr. 2d at
616.

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in the skilled nursing facility.74 However, the Delaney court
recognized that adopting such an interpretation of the elder abuse
statute would create an “anomaly”75 in that custodians who are not
also health care providers would be subjected to the heightened
remedies of the Elder Abuse Act, while those who are licensed as
health care workers would only be subjected to claims based on
professional negligence.76

Additionally, Delaney clearly articulates that there is a
distinction between custodial care and professional medical care.
Thus, under Delaney, it appears that health care workers who neglect
residents to the level that satisfies the Elder Abuse Act can be sued
outside the purview of MICRA.77 The court appears to distinguish
professional negligence on behalf of health care providers, which
should be evaluated and litigated under the professional negligence
statutes, from those violations that occur within the custodial context,
which should be evaluated under the enhanced Elder Abuse Act
provisions.78 It also explicitly recognized that “the legislative history
suggests that nursing homes and other health care providers were
among the primary targets of the Elder Abuse Act.”79

Thus, each pleading decision brings its own advantages and
disadvantages. A cause of action under the Elder Abuse Act allows
for additional damages and attorneys’ fees, yet requires the plaintiff
to meet a higher standard of care and a higher burden of proof.
Conversely, a cause of action for professional negligence has a lower
standard of care and a lower burden of proof, but provides for fewer
remedies. To best protect the interests of the elderly injured person,
as the court in Delaney recognized, there may be times when the
same act can give rise to a claim for both causes of action.80 The
example the court in Delaney used involved a patient who suffered

74. See id. at 35, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617.
75. See id.
76. See id. at 36–37, 971 P.2d at 994–95, 82 Cal. Rptr. 2d at 618–19.
77. See id. at 34, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617.
78. See id. at 35, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617 (“[I]f the neglect
is ‘reckless[],’ or done with ‘oppression, fraud or malice,’ then the action falls
within the scope of section 15657 [the Elder Abuse Act] and as such cannot beconsidered simply ‘based on . . . professional negligence’ within the meaning
of section 15657.2 [the professional negligence statute].”).
79. Id. at 41, 971 P.2d at 997, 82 Cal. Rptr. 2d at 621.
80. See id. at 34–35, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617.

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from malnutrition. The court stated that failing to provide “a plan of
furnishing sufficient nutrition to someone too infirm to attend to that
need herself” could be considered professional negligence and could
also constitute neglect, thereby possibly satisfying the standard for
elder abuse.81

3.
Does chronic understaffing constitute elder abuse or professional
negligence?
Many incidents of elder abuse are often the result of
understaffing at skilled nursing facilities.82 Therefore, determining
how the courts will treat chronic staffing problems is one of the most
important questions in this area of the law.

On the one hand, recurring staffing problems appear to
constitute elder abuse, not professional negligence.83 Understaffing
often leads to a failure to provide adequate care and to abuse, and it
is the corporate entity, whose corporate scheme is based on
maximizing profit, that causes the injury, not the low-paid workers
on the floor.84 Alternatively, defense counsel might prefer that
staffing problems be seen as professional negligence because there
are procedural advantages.85 However, the California Supreme
Court stated in Delaney that insufficient staff is not professional
negligence.86

81. See id. at 34, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617.
82. See Kane, supra note 51, at 17 (stating that elder abuse occurs innursing homes because they are “under-regulated and under-staffed, often
sacrificing care in order to maximize profit.”); Ramey, supra note 2, at 623
(“One of the most frequently given excuses for deficiencies and abuse is thelack of adequate staffing.”); Robert Pear, U.S. Recommending Strict New Rules
at Nursing Homes, N.Y. TIMES, July 23, 2000, at 1 (“Nursing homes with alow ratio of employees to patients are ‘significantly more likely to have
quality-of-care problems’ . . . .”).
83. See Garcia, supra note 48, at 14.
84. See Childers, supra note 47, at 13–14 (“[I]t is the corporate decision
makers who set the budget and force nursing homes to operate with inadequatestaff and supplies.”).
85. As discussed above, per MICRA, the damages in a professional
negligence case are limited to $250,000. See CAL. CIV. CODE § 3333.2(b)
(West 1997). Further, collateral sources can be used. See id. § 3333.1.
86. See Delaney, 20 Cal. 4th at 41–42, 971 P.2d at 998, 82 Cal. Rptr. 2d at
622.

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C. Issues of Proof in Elder Abuse Litigation
This Section will briefly discuss three particular issues that often
arise in elder abuse litigation:87 the clear and convincing standard of
proof, corporate ratification and liability, and the use of regulations
to set forth the standard of care.

1. Clear and convincing evidence standard
Satisfying the “clear and convincing” burden is extraordinarily
difficult.88 Indeed, it often comes down to what the judge decides
when considering the evidentiary motions. For example, if plaintiffs
are allowed to bring in former employees to talk about the egregious
conduct at the facility and the facility’s knowledge and disregard of
the problems, as well as to bring in corporate executives to show
they did not care about the problems at the facility, they are more
likely to prevail.

Defense counsel could attempt to counter the proof offered by
plaintiffs to prove “clear and convincing” evidence of neglect on
behalf of the facility by focusing on the local facility level, showing
the real people who work at these facilities, as well as the conditions
in which they work.89 Ultimately, the defense tries to show the
facility as caring on as pragmatic a level as possible.90

2. Corporate ratification
Plaintiffs must prove corporate ratification of the reckless
disregard for the patient’s care to bring suit against the corporation
for punitive damages.91 Plaintiffs do this by proving that the
corporation has a continuing history of complaints and injuries

87. This Article does not attempt an exhaustive discussion of these issues.
Instead, our purpose is simply to highlight these significant topics.
88. Garcia, supra note 48, at 14; see also Ramey, supra note 2, at 605
(arguing that the Elder Abuse Act should be re-examined because the “burdenof proof is raised so high as not to deter wrongful conduct but rather tocomplicate the bringing of meritorious elder abuse actions.”).
89. See Canvel, supra note 50, at 15.
90. See id.
91. Because plaintiffs argue that it is the corporation that is liable for the
death and injuries of the residents of its facilities, not the individual employees,
the acts of the corporation must be done with “reckless, oppressive, fraudulent,
or malicious conduct.” Delaney, 20 Cal. 4th at 31, 971 P.2d at 991, 82 Cal.
Rptr. 2d at 615.

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against it, often as the result of understaffing.92 Corporations may be
viewed as reckless when their nursing homes admit more residents
than they are equipped to accommodate. This is especially true when
they make these admission decisions knowing their budgets do not
allow them to staff at appropriate levels; yet, they recklessly
disregard these facts and continue to accept new patients as long as
there is an empty bed in the facility.93 Therefore, the conduct the
plaintiff wants the jury to focus on is the acts of the corporation.94
Thus, it is crucial for the plaintiffs to be able to introduce as much
evidence as possible about what the corporation knew about the
facility and its ability to care for its residents, especially any
evidence that proves the corporation knew of chronic staffing
problems.95 The plaintiffs frame the issue as determining whether
the harmful course of conduct occurred because of all the earlier
violations and incidents, often caused by chronic understaffing, that
were not rectified by the corporation.96

Many elder abuse lawsuits are not about the people working on
the floors; rather, they are about corporations that purposely take the
highest number of the sickest patients and then staff their facilities
with the lowest number of employees possible.97

92. See supra note 82.
93. See Garcia, supra note 48.
94. See Childers, supra note 47, at 13 (“In most cases filed against nursing
homes, the defendants are not the actual caregivers hired by the facility, butrather the corporations who have failed to provide necessary and availableresources in order to prevent injuries to the residents of the nursing homes they
own.”).
95. See supra text accompanying note 84.
96. See supra note 82. During the Symposium, plaintiffs’ counsel provideda straightforward approach one can use when trying to prove corporate intent,
suggesting a few specific questions with which to begin the examination of the
witness:
1. “You are a for-profit organization are you not?”
2. “You are publicly traded are you not?”
3. “So, you have a fiduciary responsibility to make as much money as
possible for your stakeholders, do you not?”
From there, the questions should continue to focus on the corporation as a
profit maker. Garcia, supra note 48.

97. See Garcia, supra note 48.

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3. Use of regulations
An interesting question that arises in elder abuse lawsuits is
whether the regulations passed pursuant to the Elder Abuse Act can
be used to set forth the standard of care required of the skilled
nursing facility.98 The California Court of Appeal, in Estate of

98. See CAL. CODE REGS. tit. 22, § 72315 (2002). These regulations state
that:
(a) No patient shall be admitted or accepted for care by a skillednursing facility except on the order of a physician.
(b) Each patient shall be treated as individual with dignity and respectand shall not be subjected to verbal or physical abuse of any kind.
(c) Each patient, upon admission, shall be given orientation to theskilled nursing facility and the facility’s services and staff.
(d) Each patient shall be provided care which shows evidence of goodpersonal hygiene, including care of the skin, shampooing and
grooming of hair, oral hygiene, shaving or beard trimming,
cleaning and cutting of fingernails and toenails. The patient shall
be free of offensive odors.
(e) Each patient shall be encouraged and/or assisted to achieve and
maintain the highest level of self-care and independence. Every
effort shall be made to keep patients active, and out of bed forreasonable periods of time, except when contraindicated byphysician’s orders.
(f) Each patient
shall be given care to prevent formation and
progression of decubiti, contractures and deformities. Such care
shall include:
(1)
Changing position of bedfast and chairfast patients with
preventive skin care in accordance with the needs of the
patient.
(2)
Encouraging, assisting and training in self-care and activities
of daily living.
(3)
Maintaining proper body alignment and joint movement toprevent contractures and deformities.
(4)
Using pressure-reducing devices where indicated.
(5)
Providing care to maintain clean, dry skin free from feces and
urine.
(6)
Changing of linens and other items in contact with the patient,
as necessary, to maintain a clean, dry skin free from feces and
urine.
(7) Carrying out of physician’s orders for treatment of decubitis
ulcers. The facility shall notify the physician, when adecubitis ulcer first occurs, as well as when treatment is not
effective, and shall document such notification as required in
Section 72311(b).

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Gregory v. Beverly Enterprises, Inc.,99 stated that regulations cannot
be used to create a standard of care,100 but they can be used in
formulating jury instructions to “describe the care required.”101 In

(g) Each patient
requiring help in eating shall be provided with
assistance when served, and shall be provided with training or
adaptive equipment in accordance with identified needs, based
upon patient assessment, to encourage independence in eating.
(h) Each patient shall be provided with good nutrition and withnecessary fluids for hydration.
(i) Measures
shall be implemented to prevent and reduce
incontinence for each patient and shall include:
(1)
Written assessment by a licensed nurse to determine the
patient’s ability to participate in a bowel and/or bladder
management program. This is to be initiated within two
weeks after admission of an incontinent patient.
(2)
An individualized plan, in addition to the patient care plan, foreach patient in a bowel and/or bladder management program.
(3) A weekly written evaluation
in the progress notes by a
licensed nurse of the patient’s performance in the bowel
and/or bladder management program.
(j) Fluid intake and
output shall be recorded for each patient as
follows:
(1) If ordered by the physician.
(2)
For each patient with an indwelling catheter:
(A)
Intake and output records shall be evaluated at least
weekly and each evaluation shall be included in the
licensed nurses’ progress notes.
(B)
After 30 days the patient shall be reevaluated by the
licensed nurse to determine further need for the
recording of intake and output.
(k) The weight and length of each patient shall be taken and recordedin the patient’s health record upon admission, and the weight shall
be taken and recorded once a month thereafter.
(l) Each patient shall be provided visual privacy during treatments
and personal care.
(m) Patient call signals shall be answered promptly.
99. 80 Cal. App. 4th 514, 95 Cal. Rptr. 2d 336 (Cal. Ct. App. 2000).
100. See id. at 522, 95 Cal. Rptr. 2d at 341 (stating that “‘an administrativeagency cannot independently impose a duty of care if that authority has notbeen delegated to the agency by the Legislature.’”).
101. Id. The court stated:
[T]he question before us is . . . whether the duly authorized regulations
can be used to describe the care required under an existing statutory
right of action for elder abuse. . . . We find no authority to suggest a

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fact, according to the court, it seems one can use most any source
available in drafting jury instructions.102

Counsel for plaintiffs will argue that the violation of a regulation
should be evidence of recklessness, or should at least establish
notice.103 Arguably, the regulations cannot be used to establish a
cause of action or to establish a finding of negligence per se.104

Indeed, even the judge expressed concern about the court’s
language in Estate of Gregory,105 stating that he could not see the
difference between “describing” the standard of care, which is
allowed,106 and “establishing” the standard of care, which is not.107

In attempting to determine how to use the regulations in elder
abuse cases, looking at the original purpose of the regulations may be
illustrative. As Judge West questioned, “Is the purpose of the
regulations to establish a standard of care or to improve the level of
care given?”108

D. The Use of Experts in Elder Abuse Litigation
California Evidence Code section 801 “codifies the existing
[general] rule that expert opinion is limited to those subjects that are
beyond the competence of persons of common experience, training,

party may not base instructions on relevant state or federal regulationsin the proper case.

Id. at 522–23, 95 Cal. Rptr. 2d at 341–42 (emphasis added).

102. See id. at 523, 95 Cal. Rptr. 2d at 342 (“Sources of law for jury
instructions include statutes, court opinions, treatises, hornbooks, legalencyclopedias, digests, and form books.”).
103. See Garcia, supra note 48.
104. See Estate of Gregory, 80 Cal. App. 4th at 523, 95 Cal. Rptr. 2d at 342(citing Housley v. Godinez, 4 Cal. App. 4th 737, 747, 6 Cal. Rptr. 2d 111, 117
(Cal. Ct. App. 1992) (finding that the regulation requiring drivers to wear a
seatbelt could be considered by the jury in determining whether the driver had
exercised due care, but not to establish presumptive negligence).
105. See The Honorable Carl West, Presentation at Honor Thy Mother and
Father: A Symposium on the Legal Aspects of Elder Abuse at Loyola LawSchool (Apr. 29, 2002) (transcript on file with Loyola of Los Angeles Law
Review).
106. See Estate of Gregory, 80 Cal. App. 4th at 522, 95 Cal. Rptr. 2d at 341–
42; see also supra text accompanying note 101.
107. See Estate of Gregory, 80 Cal. App. 4th at 522, 95 Cal. Rptr. 2d at 341;
see also supra text accompanying note 100.
108. West, supra note 105.

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and education.”109 For example, experts are required in the
professional negligence context to prove the standard of care
required for the health care provider involved in the lawsuit.110
Therefore, because experts are only used to explain difficult or
confusing concepts to the trier of fact, they may not be appropriate in
an elder abuse lawsuit. However, as one recent RAND study found,
in California Superior Court trials in the late 1980s, experts testified
in eighty-six percent of all cases.111

One argument for using expert testimony in elder abuse cases is
that an expert may be needed to explain the meaning of
“recklessness”.112 “‘Recklessness’ refers to a subjective state of
culpability greater than simple negligence, which has been described
as a ‘deliberate disregard’ of the ‘high degree of probability’ that an
injury will occur.”113 However, Judge West explained that it may
not be necessary to use an expert to explain the standard of care in a
simple negligence case or in an elder abuse case not involving claims
of professional negligence of a health care/medical provider.114 As
he expressed, there may be statutes that lay out standards which
would be understandable to the lay juror.115

Other possible uses for an expert may include making the
connection between the injury and the acts or omissions that
allegedly led to the injury,116 which is often a lack of adequate
numbers of staff.117 An expert may be needed to testify as to
whether the staffing at the facility meets the required level based on
the number of residents in the facility.118 An expert witness also may

109. CAL. EVID. CODE § 801 (West 2002) (Law Revision Commission
Comment). This discussion about the use of experts could be applicable toother statutes as well. The corresponding Federal Rule of Evidence regarding
experts is Rule 701. See FED. R. EVID. 701.
110. See Howard v. Owens Corning, 72 Cal. App. 4th 621, 632, 85 Cal.
Rptr. 2d 386, 394 (stating that the standard of care in professional negligencecases must be established by expert testimony).
111. See Samuel R. Gross, Expert Evidence, 1991 WIS. L. REV. 1113, 1118–
19.
112. CAL. WELF. & INST. CODE § 15657 (West 2001).
113. Delaney v. Baker, 20 Cal. 4th 23, 31, 971 P.2d 986, 991, 82 Cal. Rptr.
2d 610, 615 (1999) (citations omitted).
114. See West, supra note 105.
115. See id.
116. See Childers, supra note 47.
117. See supra note 82.
118. See Garcia, supra note 48.

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be necessary to explain the medical issues, the appropriate standard
of care, the effects of the understaffing, and the history of the
facility.119

Depending on the actual facts of the case, the use of expert
witness testimony can be critical. Thus, the trend of using experts as
extensively as possible is likely to continue.

E. Evidentiary Issues & Elder Abuse Litigation
There are several unresolved evidentiary issues that often arise
in elder abuse litigation, including whether evidence of chronic
understaffing should be admissible, whether California Evidence
Code section 1157 applies in elder abuse cases, whether plans of
correction are admissible, and whether evidence of prior incidents is
admissible.120 This Section briefly discusses each of these issues.

1. Should evidence of chronic understaffing be admissible?
Because evidence of understaffing is so damaging, plaintiffs
would like all such evidence about the facility’s prior problems with
staffing to be admitted, as well as information about the
corporation’s knowledge about its problems with staffing at their
other facilities.121 As Mr. Garcia so succinctly expressed, “If the
facilities are not adequately staffed to care for their residents, why do
they continue to admit them?”122 To prove the corporate ratification
required for corporate guilt,123 the plaintiffs must be able to show
what the corporation knew and disregarded before the particular
incident at the center of the current litigation occurred.124

Conversely, defense counsel would prefer that less evidence
about understaffing be admitted. To the defense, the most important
question in relation to understaffing is “did the understaffing
contribute to the neglect or abuse that is alleged in this particular
case?”125 Further, the defense argues that only the particular

119. See Canvel, supra note 50.
120. However, this Article does not attempt to exhaustively cover all theevidentiary issues that may arise in an elder abuse lawsuit.
121. See Garcia, supra note 48.
122. Id.
123. See supra Part II.C.2.
124. See Garcia, supra note 48.
125. Canvel, supra note 50.

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facility’s problems with staffing should be admitted, and that such
evidence must be understood in context with the challenges of the
economy and the job market.

2.
Does California Evidence Code section 1157 apply in elder abuse
cases?
California Evidence Code section 1157 establishes an absolute
privilege for documentation related to peer review and quality of care
discussions for certain types of medical facilities.126 Additionally,
“no person in attendance at a meeting of any of those committees
shall be required to testify as to what transpired at that meeting.”127
It is mandatory that every skilled nursing facility have a quality
assurance committee, which must review the quality of care given at
that particular facility.128 However, because skilled nursing facilities
are not explicitly listed in the statute as being protected by this
provision, questions remain as to whether the documents and people
in attendance at skilled nursing facility committee meetings will be
protected. Indeed, if protected under the statute, these committees
can discuss anything they want rather freely with no fear of those
discussions being discoverable. Consequently, the courts must
decide whether these facilities will be protected under California
Evidence Code section 1157.

The interpretation of this provision is so crucial because,
otherwise, as so clearly stated by counsel for the plaintiffs, this
evidence is the “smoking gun” that can often win the plaintiff’s
case.129 As plaintiff’s counsel also stated, these incident review
discussions are “where they hide how they kill, abuse, and maim”
people.130

126. See CAL. EVID. CODE § 1157 (West 2002). This privilege covers
committees of “medical, medical-dental, podiatric, registered dietician,
psychological, marriage and family therapist, licensed clinical social worker,
or veterinary staffs in hospitals.” Id. § 1157(a). Note that it does not
specifically include skilled nursing facilities.
127. Id. § 1157(b).
128. See 42 C.F.R. § 483.75(o) (2001); see also Elizabeth K. Schneider,
Long-Term Care Regulatory Reform: HCFA, the IOM and Opportunity Lost, 4
QUINNIPIAC HEALTH L.J. 107, 137 (2000) (discussing the requirements for
quality assurance committees, as well as some of their procedures).
129. Garcia, supra note 48.
130. Id.

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On the one hand, the statute is extraordinarily particular as to
whom it does and does not protect.131 On the other hand, it includes
several categories of services that are typically inherent in the
operations of skilled nursing facilities, including dieticians and
therapists.132 Thus, it is unclear as to whether skilled nursing
facilities will be covered by section 1157. Again, each case may
come out differently in front of different judges, at least until the
California Court of Appeal or the California Supreme Court speaks
on the issue.133

As Judge West pointed out, even if the statute does not protect
the skilled nursing facilities, thereby opening their peer review and
quality assurance committee discussions up to discovery, the
information still may not be admissible under California Evidence
Code section 1151.134

3. Is evidence of prior incidents admissible?
One of the first questions that must be answered in deciding
whether to admit evidence of prior incidents is whether California
Evidence Code section 403135 must be met to get evidence of prior
incidents admitted. Under section 403, the judge must determine
whether there are sufficient foundational facts to support the
admission of evidence regarding the prior incidents before admitting
such evidence. The defense may urge the court to limit the amount

131. See CAL. EVID. CODE § 1157(a) (West 2001).
132. See id.
133. At the time of publication of this Article, a very broad Lexis search of
California case law for the terms “elder abuse” and “evidence w/5 1157”
returned zero cases.
134. See West, supra note 105. Under California Evidence Code Section
1151, subsequent remedial measures taken after the event at issue occurred thatmay have kept the event from happening may not be used to prove negligenceor culpable conduct with respect to the particular plaintiff involved in thelitigation. CAL. EVID. CODE § 1151. The corresponding Federal Rule of
Evidence regarding subsequent remedial measures is Rule 407. See FED. R.
EVID. 407.
135. See CAL. EVID. CODE § 403. Further, section 402 of the Evidence Code
allows a judge to make findings of foundational and preliminary facts out of
the presence of the jury. See id. § 402. Defense counsel’s concern is that the
jury will hear testimony regarding prior incidents of injuries that may not haveactually occurred.

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of such evidence that is admitted to a reasonable number of incidents
over a reasonable period of time.136

Plaintiffs, on the other hand, must be able to admit such
evidence to prove malice,137 to prove the corporate ratification
required under California Civil Code section 3294,138 and to show a
conscious disregard for known peril. For plaintiffs, there may be no
other way to prove these issues other than by using prior incidents to
establish that the corporation knew of the peril and the consequences
beforehand.139

Judges may be inclined to limit the admission of such evidence
to similar incidents.140 For example, if the litigation involves an
individual who has fallen out of a wheelchair, and that person was
supposed to be restrained but was not, then only other incidents
where other unrestrained individuals had fallen out of a wheelchair
should be admitted, not every incident of anyone ever falling out of a
wheelchair.141 This would also preclude admission of evidence of
other types of accidents that do not involve wheelchairs.

Ultimately, this is one of the most important issues to the case,
and the judge must make the final decision, as dictated by California
Evidence Code section 402.142

III. CONCLUSION
As this Symposium indicates, elder abuse is a problem in drastic
need of legal and social redress. The articles summarized in Part I
suggest a broader approach to the overall problem of elder abuse,
including education, social change, and legislation. Conversely, Part
II of this Article specifically discussed litigation as an approach to
protecting the elderly in our society, particularly in nursing homes.
Taken together, this Symposium attempts to focus our discussions on

136. See Canvel, supra note 50.
137. See Delaney, 20 Cal. 4th at 35, 971 P.2d at 993, 82 Cal. Rptr. 2d at 617(stating that showing malicious neglect constitutes an action within the scope
of the Elder Abuse Act).
138. See supra Part II.C.2 for a complete discussion of corporate ratification.
139. See Garcia, supra note 48.
140. See West, supra note 105.
141. See id.
142. See CAL. EVID. CODE § 402; see also supra text accompanying note
135.

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the legal aspects of elder abuse and to move our society towards
honoring our mothers and fathers.