Elder Abuse

• Author: Kevin R. Culhane
• Pages: 140-203

20-140

Chapter 20

Elder Abuse

§2000 Introduction

§2010 Identification of Defendant

§2020 Physical Abuse Claims

§2030 Physical Abuse Cases Defendant to Plaintiff

§2040 Elder Abuse Claims Based Upon Neglect

§2050 Financial Abuse

§2060 Financial Abuse Defendant to Plaintiff

§2070 Professional Negligence v. Custodial Care

§2080 Damages in Elder Abuse Cases

§2090 Investigatory Interrogatories

§2095 Deposition Checklists

§2000 Introduction

§2001 Elements of Plaintiff’s Elder Abuse Cause of Action – Physical Abuse

§2002 Elements of Plaintiff’s Cause of Action – Neglect

§2003 Elements of Plaintiff’s Cause of Action – Financial Abuse

§2004 Definitions

§2010 Identification of Defendant

§2011 Education, Training, Certification and Licensure of Defendant

§2011.1 Education

§2011.2 Certification and Licensure

§2012 Defendant’s Relationship to Plaintiff

§2012.1 Documentation Regarding Relationship

§2020 Physical Abuse Claims

§2021 Assault/Battery

§2022 Sexual Assault

§2023 Use of Physical Restraint for Punishment

§2024 Overuse of Physical Restraint

§2025 Excessive Use of Psychotropic Medication

§2030 Physical Abuse Cases – Defendant to Plaintiff

§2031 Assault/Battery

§2032 Sexual Assault

§2033 Use of Physical Restraint for Punishment

§2034 Overuse of Physical Restraint

§2035 Excessive Use of Psychotropic Medication

20-141 elder abuse

§2040 Elder Abuse Claims Based Upon Neglect

§2041 Failure to Assist in Personal Hygiene

§2042 Failure to Assist in the Provision of Food, Clothing or Shelter

§2043 Failure to Provide Medical Care

§2044 Failure to Protect from Safety Hazards

§2045 Violation of Administrative Regulation

§2046 Failure to Train

§2047 Failure to Correct Conditions

§2050 Financial Abuse

§2051 Misappropriation of an Elder’s Money or Property

§2051.1 Nature of Relationship Between Elder and Defendant

§2051.2 Taking of Property

§2051.3 Fraudulent Acquisition

§2051.4 Affirmative Misrepresentation

§2051.5 Concealment

§2052 Financial Abuse Based on Failure to Return Property

§2052.1 Defendant Acquisition of Property

§2052.2 Legal or Equitable Ownership of the Property

§2052.3 Property Belonging to the Elder

§2052.4 Property Held Under Express Trust

§2052.5 Property Held Under Resulting Trust

§2052.6 Property Held Under Constructive Trust

§2052.7 Affirmative Misrepresentation

§2052.8 Concealment

§2052.9 Failure to Return Property

§2052.10 Acts Committed in Bad Faith

§2060 Financial Abuse – Defendant to Plaintiff

§2061 Misappropriation

§2061.1 Nature of Defendant’s Relationship to Plaintiff

§2061.2 Taking of Property

§2061.3 Fraudulent Acquisition

§2062 Defendant to Plaintiff – Financial Abuse Based on Failure to Return Property

§2062.1 Defendant Acquisition of Property

§2062.2 Legal or Equitable Ownership of the Property

§2062.3 Property Held Under Express Trust

§2062.4 Property Held Under Resulting Trust

§2062.5 Property Held Under Constructive Trust

§2062.6 Failure to Return Property

§2062.7 Acts Committed in Bad Faith

§2070 Professional Negligence v. Custodial Care

§2071 Professional Negligence v. Custodial Negligence – Plaintiff to Defendant

§2072 Professional Negligence v. Custodial Negligence – Defendant to Plaintiff

§2080 Damages in Elder Abuse Cases

§2081 Special Damages – Plaintiff to Defendant

§2082 Special Damages – Defendant to Plaintiff

§2083 General Damages – Plaintiff to Defendant

§2084 General Damages – Defendant to Plaintiff

§2085 Enhanced Damages – The Requisite Mental State

§2085.1 Recklessness

§2085.2 Oppression

§2085.3 Fraud

§2085.4 Malice

§2085.5 The Requisite Mental State Defendant to Plaintiff

§2000 Model InterrogatorIes 20-142

§2086 Enhanced Damages – Defendant’s Ratification of Agent’s Conduct

§2086.1 Plaintiff to Defendant

§2086.2 Defendant to Plaintiff

§2090 Investigatory Interrogatories

§2091 Witnesses

§2091.1 Lay Witnesses

§2091.2 Expert Witnesses Identification

§2092 Opposing Party’s Surveillance

§2093 Insurance

§2094 Due Diligence in Preparation of Response

§2095 Deposition Checklists

§2096 Deposition of Defendant

§2096.1 Defendant – General Background

§2096.2 Defendant’s Business Structure

§2096.3 Placement in Facility (If Applicable)

§2096.4 Claims Based on Alleged Physical Abuse

§2096.5 Elder Abuse Claims Based Upon Alleged Neglect

§2096.6 Claims Based upon Alleged Financial Abuse

§2096.7 Damages in Elder Abuse Cases

§2096.8 Affirmative Defenses and Denials

§2096.9 Statements by Parties, Witnesses

§2096.10 Surveillance Conducted by Opposing Party

§2096.11 Insurance

§2097 Deposition of Plaintiff

§2097.1 Plaintiff – General Background

§2097.2 Placement in Facility (If Applicable)

§2097.3 Claims Based on Alleged Physical Abuse

§2097.4 Elder Abuse Claims Based Upon Alleged Neglect

§2097.5 Claims Based upon Alleged Financial Abuse

§2097.6 Damages in Elder Abuse Cases

§2097.7 Affirmative Defenses and Denials

§2097.8 Statements by Parties, Witnesses

§2097.9 Surveillance Conducted by Opposing Party

§2000 Introduction

There are few topics in contemporary tort litigation that have received as much recent attention as elder abuse

liability. Several factors may contribute to the growth of elder abuse litigation, including the age of the post-war

baby boom generation, advances in medical science, and an increased societal awareness of standard of care issues

pertaining to the care of the aging. Litigation of tort cases within this field, generically referred to as elder abuse

litigation, is the subject of this chapter.

It must be borne in mind that the term “elder abuse” has no fixed meaning. It may refer to injuries sustained due to

negligent treatment in a nursing home, or may describe “fiduciary abuse” in the sense of actions undertaken to deprive

elderly persons of their property. Obviously, the interrogatory discovery that is undertaken in either the prosecution

or defense of an “elder abuse” case will differ depending on the basis of liability raised by the facts in each case.

In recognition of the foregoing, regulatory authorities as well as State Legislatures have adopted definitional

categories for different forms of elder abuse. A notable example is California’s Elder Abuse Act, which is set forth

in California Welfare & Institutions Code section 15657, et seq. The Act divides actionable “elder abuse” into three

categories, including (1) physical abuse (Welfare & Institutions Code § 15610.63); (2) neglect (Welfare & Institutions

Code § 15610.57); and (3) financial abuse (Welfare & Institutions Code § 15610.30). Because the California Elder

Abuse Act provides a workable conceptual model for analyzing elder abuse cases, the foregoing categories provide

the organizational structure for this chapter.