Claims Against Skilled Nursing and Assisted Living Facilities

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With over 16 years of experience in bringing claims against skilled nursing and assisted living facilities, the Los Angeles elder abuse lawyers at the Law Offices of Ben Yeroushalmi provide the best services and results to clients. We are dedicated to holding long-term facilities accountable for the neglect that they have caused and have achieved maximum compensation for victims who have suffered harm in their facilities.

Elder abuse litigation against skilled nursing and assisted living facilities involves a number of situations that are very different from the average medical malpractice or negligence action. Harms, and even death, in these facilities often involve intentional or reckless conduct by various individuals, including the owners, operators, and employees. Frequently, those who are harmed are unable to testify against their perpetrators because they suffer from problems with mental capacity or have untimely passed away from their injuries.

It is usually in an elder abuse attorney's best interest to proceed on the following causes of action where applicable and may even wish to file a Motion for Preference, pursuant to California Code of Civil Procedure § 36, if the elderly victim is still living at the time of filing suit. The following causes of action are typically included in every complaint against a skilled nursing or assisted living facility, where applicable:

Negligence actions against skilled nursing facilities fall under traditional medical malpractice and are subject to the limitations enumerated in California's MICRA statute, as codified in California Civil Code § 3333.2. Skilled nursing facilities are considered "health care providers," thus, among other limitations, a plaintiff's claims for non-economic damages are limited to $250,000. However, unlike skilled nursing facilities, assisted living facilities are not considered "health care providers," and thus negligence actions against this type of facility are not subject to the traditional medical malpractice limitations enumerated in California's MICRA statute. (See Kotler v. Alma Lodge (1998) 63 CA4th 1381.)

In ordinary negligence claims, liability is premised on a breach of an applicable standard of care that causes injury. However, if the plaintiff's claim is based on violations of the extensive regulations governing skilled nursing and assisted living facilities, then the plaintiff may proceed on a negligence per se theory of liability instead. In such cases, and although it would be helpful, it is not necessarily needed to have an expert testify as to the relevant standard of care. Further, if the breach of the standard of care or the violations of the regulations were intentional rather than negligent, a willful misconduct cause of action may also apply. An experienced elder abuse attorney is typically familiar with the host of federal and state regulations governing skilled nursing and assisted living care to see if any of these claims apply to a given case.

Negligence claims may also fall under a nursing home's want of ordinary care, as opposed to want of professional care. This is important because experienced lawyers have successfully argued that California's MICRA does not apply to ordinary negligence claims, even against health care providers such as nursing homes. (See Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75; see also Johnson v. Open Door Community Health Centers (2017) 15 Cal. App. 5th 153.)

The concept of willful misconduct has a well-established, well-defined meaning in California law. "Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results." (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689-690; see also Berkley v. Dowds (2007) 152 Cal. App. 4th 518, 528; see also Calvillo-Silva v. Home Grocery (1998) 19 Cal. 4th 714, 728-30, partially disapproved on other grounds, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 854 n.19.)

Willful misconduct is considered to be an aggravated form of negligence that may be treated as an intentional tort. (Mahoney v. Corralejo (1974) 36 CA3d 966, 973.) In California, three elements are needed to elevate a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril. (Nazar v. Rodeffer (1986) 184 CA3d 546; see also Berkley v. Dowds (2007) 152 Cal. App. 4th 518; see also Restatement (Second) of Torts § 870.)

Experienced elder abuse attorneys regularly argue that because injury is predicated on intentional or reckless behavior, as opposed to negligent behavior, the limitations of California's MICRA statute does not apply against a defendant health care provider, such as a skilled nursing facility. This issue is typically raised on a defendant's demurrer but may even persist until the trial phase of the litigation.

The Elder Abuse and Dependent Adult Civil Protection Act (the "Elder Abuse Act" or "EADACPA"), codified in Welfare & Institutions Code §§ 15600-15675, provides legal definitions for elements of elder abuse and neglect. "Abuse of an elder or a dependent adult" means any of the following: (a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; or (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (Welfare & Institutions Code § 15610.07.)

Although the Elder Abuse Act contains other elements, elder abuse and neglect claims are commonly substantiated by proving physical abuse, neglect, or a deprivation of goods or services necessary to avoid harm and suffering. Physical abuse includes assault, battery, assault with a deadly weapon or force likely to produce great bodily injury, sexual assault, and rape as defined by their respective Penal Code definitions. In the context of elder abuse, physical abuse also encompasses physical constraint, prolonged or continual deprivation of food or water, use of physical or chemical restraint or psychotropic medication for punishment or for any purpose not authorized by a physician who is providing medical care to the elder. (Welfare & Institutions Code § 15610.63.)

Neglect means the failure of any person having the care or custody of an elder or a dependent adult to exercise the degree of care, or the elder himself or herself to exercise that degree of selfcare, that a reasonable person in a like position would exercise. This includes, but is not limited to, failure to assist in personal hygiene, or in the provision of food, clothing or shelter; failure to provide medical care for physical or mental health needs; failure to protect from health and safety hazards; and failure to prevent malnutrition or dehydration. (Welfare & Institutions Code § 15610.57).

Deprivation of goods or services necessary to avoid physical harm or mental suffering includes deprivation of medical care for physical and mental health needs, assistance in personal hygiene, adequate clothing, adequately heated and ventilated shelter, protection from health and safety hazards, and protection from malnutrition under those circumstances where the results include, but are not limited to, malnutrition and deprivation of necessities or physical punishment; and deprivation of transportation and assistance necessary to secure any of these needs (Welfare & Institutions Code §§ 15610.07, 15610.35).

Elder abuse and neglect applies to actions against both skilled nursing facilities and assisted living facilities, who both undertake the custodial care of an elder. This cause of action is a separate claim from other torts and not merely a remedial measure. (Perlin v. Fountain View Management, Inc. (2008) 163 CA4th 657.) For an in-depth discussion on the remedies available in this claim, including enhanced remedies, please refer to our Resources section. Generally, a successful elder abuse and neglect claim requires a plaintiff to prove abuse or neglect through reckless conduct by clear and convincing evidence, as opposed to merely negligent conduct by a preponderance of the evidence. (See Welfare & Institutions Code § 15657.) In the experiences of the elder abuse attorneys at the Law Offices of Ben Yeroushalmi in Los Angeles, harms are unfortunately most often caused by a pattern of reckless neglect by a facility and its operators as opposed to merely negligent behavior.

California's Health and Safety Code § 1430 protects patients' rights against misconduct by skilled nursing facilities. This claim does not apply to actions against assisted living facilities. In addition to the recovery of attorney fees and costs, the statute grants current or former residents of nursing homes standing to sue for up to $500.00 and injunctive relief against any violation of the resident's rights enumerated in federal and state laws or regulations. Claims under § 1430 also cannot be forced into arbitration and should help defeat petitions to compel arbitration brought by potential defendants. For more information about these remedies and methods to defeat forced arbitration, refer to our Resources section.

California case law has recently held that a high number and a perpetual nature of violations of a specific patient's rights provide a sufficient basis to infer that a nursing home was acting with a conscious disregard, or "recklessly," of these rights and patient safety during the applicable period. (See Jarman v. HCR Manorcare, Inc., No. G051086, Cal. Ct. App. (March 14, 2017).) Continual and compound violations of a patient's statutory rights may also constitute "despicable" conduct such that a plaintiff can be entitled to punitive damages against defendant nursing homes. (See Jarman, supra.) Jarman also held that a plaintiff's remedies under a 1430 action are not limited to a single measure of monetary damages under the section, but rather, compensation of $500.00 for each violation asserted under the section. (Jarman, supra.)

A violation of patients' rights claim may also help bolster a plaintiff's elder abuse claim against a nursing home. A continuous and regular practice of violating federal and state regulations pertaining to adequate facility staffing, in conjunction with allegations that the understaffing was the cause of an elderly patient's injury, has also been held to be sufficient to state a viable cause of action for elder abuse. (See Fenimore v. Regents of the University of California (2016) Cal.App. Lexis 231.)

Victims of elder abuse and neglect are often subjected to appalling situations, such as being left for long periods in beds covered in urine and feces, or being starved, dehydrated, and overmedicated. As a result, these elders are left feeling helpless, angered, depressed, in despair, and overall emotionally distressed.

Intentional infliction of emotional distress is the victim's personal cause of action and requires the following elements (according to 5 Witkin, Summary of California Law, Torts §§ 449-461 (10th ed 2005):

1. Outrageous conduct beyond the bounds of decency, such that no reasonable person could be expected to endure it;
2. Severe emotional distress;
3. Intentional or reckless conduct;
4. Causation; and
5. Damages

An elderly victim of physical abuse may also bring a battery cause of action against a nursing home or assisted living facility. For this claim, a plaintiff must prove an intentional harmful or offensive contact with the plaintiff without consent. (See CACI 1300.)

The most common example of this in nursing homes is the administration of certain types of medication to elderly patients. In California, skilled nursing facilities are required to obtain the informed consent of the patient or the patient's representative before administering psychoactive medications. (See Title 22 Cal Code Regs § 72528(c).) If a facility administers these medications without consent, a victim has a strong claim for battery. Although less common, assault and battery by nursing home and assisted living facility staff against elderly patients and residents unfortunately also occurs and gives rise to a viable battery claim. This can include punching, pushing, kicking, slapping, pinching, threatening, emotionally abusing, and inducing fear in patients.

For additional information, get in touch with an experienced attorney. The nursing home and assisted living neglect lawyers of the Law Offices of Ben Yeroushalmi in Los Angeles are dedicated to elder abuse and neglect cases and can be contacted online or at (310) 623-1926.