Answers to the Most Frequently Asked Questions in
California Elder Abuse and Nursing Home Liability Cases
What rights do residents of nursing homes have?
A resident in a nursing home has the right to be free from verbal,
sexual, physical and mental abuse, and any physical or chemical
restraint that is imposed for purposes of discipline or convenience,
rather than to treat a medical condition. A nursing home that
participates in the Medicare program gives rights under statute. If
a nursing home is not regulated by federal statute, its residents will
still have rights under state laws.
What qualifies as "neglect" in the nursing home setting?
Neglect in a nursing home of an older person is defined as the
failure to provide him or her with services essential to health and
safety, such as food, clothing, supervision, and medical care.
Depending on the case these failures may either be neglect or
What is Elder Abuse?
“Elders” are afforded special protection under California law as
embodied by the "Elder Abuse and Dependent Adult Civil
Protection Act (EADACPA)". Abuse under an EADACPA claim is a
civil action that may include "physical abuse, neglect, fiduciary
abuse, abandonment, isolation or other treatment with resulting
physical harm or pain or mental suffering, the deprivation by a care
custodian of goods or services which are necessary to avoid
physical harm or mental suffering."
What is physical abuse under the Elder Abuse and Dependent
Adult Civil Protection Act?
Physical abuse is the easiest type of abuse under EADACPA to
identify and includes battery, assault with a deadly weapon, force
likely to produce great bodily injury; unreasonable physical
constraint or prolonged or continual deprivation of food or water;
any type of sexual assault and battery; use of physical or chemical
restraint or psychiatric medication for punishment.
Neglect is also abuse under the Elder Abuse and Dependent
Adult Civil Protection Act ?
Neglect is the most prevalent form of abuse under EADACPA and
includes a failure to act reasonably in the care of an elder or
dependent adult. Neglect may include failure to assist in personal
hygiene and the failure to provide food, clothing and shelter or the
failure to prevent malnutrition or dehydration.
Who qualifies as an "elder" under the law?
An “elder” is any resident who is 65 years of age or older and
special protection is afforded to this class of people; "dependent
adults" are defined as any person between the ages of 16 and 64
who has physical or mental limitations which inhibits his or her
ability to function normally and carry out activities of daily living,
and any person between the ages of 18 and 64 who is admitted to
a 24-hour healthcare facility. This includes general acute-care
hospitals, psychiatric hospitals, chemical dependency recovery
hospitals and skilled nursing and intermediate care facilities. Under
the law, an otherwise young and healthy adult is entitled to
protection under the Elder Abuse laws.
Where can elder abuse occur?
Elder abuse can occur in any setting, but most cases occur in
nursing homes or skilled nursing facilities which are understaffed
and consist of staff that exist are poorly trained.
Why are neglect and abuse common in a nursing home?
Several reasons can often contribute to the abuse or neglect of
nursing home residents, including ,poorly trained and unqualified
staff, inadequate numbers of staff and, reluctance of residents to
report abuse out of embarrassment or fear. Unfortunately, many
living in nursing homes are unable to properly communicate
instances of nursing home neglect and abuse because of their
physical or mental state.
What are some signs that nursing home abuse or neglect
is occurring to a resident?
• Dehydration or malnutrition
• Bed sores (decubitus ulcers)
• Unexplainable weight loss
• Unexplained bruises, cuts, burns, or fractures
• Unexplained venereal disease or genital infections; vaginal
or anal bleeding
• Unsanitary conditions
• Soiled linens or clothing
• Sudden changes in behavior
• Loss of resident's possessions
• Sudden financial changes
Where should suspected nursing home abuse be
If you suspect that your family member may be the victim of nursing
home abuse notify the nursing home administrator immediately.
The administration is required to investigate and report it to the
state agency. You can also contact the adult protective service.
Please see the page on this site "What You Can Do" for more detail
and contact information.
After reporting the abuse to the administrator contact Attorney
Michael Phillips at (530) 2650186 for a free legal consultation to
learn your rights and to protect them. Mr. Phillips is committed to
helping bring justice to the elderly and their families.
How can an attorney help in an elder abuse case?
California elder abuse cases are very complex and involve
complicated legal, factual and damage issues. Investigation is
crucial in litigating elder abuse cases and that any attorney
complete a thorough investigation in elder abuse cases,
particularly cases against California nursing homes. The
investigation should include obtaining evidence of the actual abuse
by reviewing medical records, with expert review and through the
discovery process. In addition, the investigation may reveal other
patients at the facility both during the time that plaintiff was in a
nursing home and before that also suffered abuse. Further, a
thorough investigation usually reveals statutory violations by
nursing homes that have been violated and usually has been cited
for violations to the plaintiff and other patients and whether the
nursing home took corrective action.
Who has legal standing to bring a lawsuit for elder abuse?
In addition to the Elder or Dependent Individual who is living, many
of the “elder’s” family members may do so as well, such as: the
elder's or dependent individual's estate or successors in interest if
the elder or dependent individual has died; the elder's or
dependent individual's family members if they witness the abuse;
and the conservator or guardian of an incompetent elder or
What remedies are available in elder abuse cases?
Assuming that the elder is still living, he or she can recover past
and future medical expenses which may include increased care
expenses, past and future wage loss, and damages for past and
future pain and suffering. The elder can be awarded punitive
damages if the misconduct is severe enough.
In cases where the elder has died, the plaintiff survivors are
entitled to recover all of the damages discussed above, plus
damages resulting from the loss of society care and comfort which
would have been provided to them by the elder. Further, plaintiffs
may be entitled to attorneys' fees.
If you suspect that your loved one has been the victim of less than
adequate care at their nursing home contact the Phillips Law
Offices today at (530) 265-0186 for a free legal consultation.