By George R. Kindley, San Diego, CA
Caring for the most vulnerable members of our society often falls to some of the most understaffed and underfunded facilities in our nation. As a state, California attempted to protect our elderly and dependent adults by enacting 1991’s California’s Elder and Dependent Adult Civil Protection Act (EADACPA). Additionally, the recent 2014 residential reform bills have provided additional legal protections for elderly and dependent adults in Residential Care Facilities for the Elderly (“RCFEs”).
The ten bills, signed into law by Governor Jerry Brown, were designed to address the ongoing issues we are experiencing in RCFEs in California. Unfortunately, despite these efforts, abuses continue to occur and investigating and pursuing neglect and abuse claims can be extremely difficult.
Research has shown that many elder abuse and neglect cases are the result of business decisions made by parent corporations that place profits ahead of the care of the elderly and infirm in their facilities. Often, the successful prosecution of these abuses comes down to deliberate, strategic choices on the part of the attorneys representing the elderly and their families. In order to successfully investigate and prosecute elder neglect and abuse in RCFEs, attorneys should follow a series of best practices.
Report the Abuse
Reporting suspected abuse and neglect is the first step in successfully prosecuting an elder abuse case. Timely reporting by family members to state agencies ensures that, where possible, appropriate criminal penalties are pursued and evidence of the abuse and neglect is preserved, collected and documented. This is especially important in situations involving physical neglect and abuse, because as time passes and as wounds heal, documenting the abuse with pictures and video becomes more difficult.
Unfortunately, despite laws requiring accurate and ongoing record keeping, cases involving the alteration or destruction of records in elder abuse situations are widespread. Getting accurate records of what happened within the facility is extremely important and often, the sooner you act, the easier it is to get accurate, unaltered records.
Care Records – Whenever possible, encourage the client or their family members to get complete copies of records from the RCFE including the entire administrative file, all care records/service notes/medication administration records/ADL notes, incident reports, etc.
Names and contact information for care providers and other residents and their family members – Employee turnover can be extremely high in RCFEs and rapid turnover makes it difficult to contact the witnesses who provided care or witnessed the abuse and neglect of the elder or dependent adult. Getting names, addresses, phone numbers and email addresses for anyone who provided care or worked at the facility at the time of the elder’s stay can make obtaining witness statements and conducting depositions much easier down the road.
File Suit ASAP
With living clients, timeliness is extremely important due to the sensitive nature of the client’s physical condition. Check the licensure of the facility as this will dictate the statute of limitations. Filing as soon as possible is key. With the ongoing delays in the civil court system as a result of recent budget cuts, clients will often find waits of up to several years between the time of filing a lawsuit and the time the suit goes to trial. Filing the lawsuit as soon as possible and well before the statute will ensure that the client is able to participate in their case to the fullest extent possible. Also, file a motion for a preferential trial whenever possible.
Assisting with criminal investigations and pursuing civil claims against the individuals and organizations who fail in their duty to care for and protect the most vulnerable members of society is our duty as members of the bar. By approaching cases in a systematic manner, we can improve our representation and increase the likelihood of a successful result for our clients. All there is left to do is step up and help the clients that need representation the most. Only comprehensive investigation will uncover the truth and achieve justice for your clients and their families.
If you have not handled an elder abuse case before, reach out to a lawyer that routinely handles these cases. These cases are not like typical personal injury or medical malpractice cases. They are driven by statute and appellate law that is constantly changing.