EADACPA & THE CALIFORNIA HEALTH CARE PROFESSIONAL:
who’s abusing whom?

Listen. You can almost hear the sound of the floodgates opening. A ruling by California’s Supreme Court last year paved the way for elder and dependent adult abuse actions against health care providers. Since then, the number of elder abuse filings has risen sharply.

THE EVOLUTION OF EADACPA
In 1982, the Legislature determined that because elders and dependent adults were more vulnerable to abuse and neglect and less capable of seeking help, California had a responsibility to protect them. The result was the enactment of Chapter 11 of the Welfare & Institutions Code, a series of statutes designed to encourage the reporting of such abuse and neglect.

Ten years later, in 1992, the Legislature found that few civil cases were being brought in connection with abused and neglected elders and dependent adults due to the lack of incentives to prosecute these cases. Indeed, the prospects for a profitable recovery were limited. Elders and dependent adults often had pre-existing conditions and reduced life expectancies which diminished the value of their pain and suffering.

When the elder or dependent adult died, recovery for his or her pain and suffering was statutorily barred. And since elders and dependent adults were often retired or unemployable, claims for loss of earnings or earning capacity were rarely included.

California’s Legislature responded by retitling Chapter 11 the “Elder Abuse and Dependent Adult Civil Protection Act” (EADACPA) and creating powerful financial incentives for attorneys who successfully represented elders and dependent adults. EADACPA made an award of attorneys’ fees and costs to the prevailing plaintiff mandatory. Welf. & Inst. Code § 15657(a). Because the cap on contingency fees found in Business & Professions Code Section 6146 arguably did not apply, plaintiffs’ lawyers could realize a larger portion of their client’s recovery so long as the fee charged was not unconscionable. Additionally, EADACPA permitted the post-mortem recovery of a decedent’s pre-death pain and suffering. Welf. & Inst. Code § 15657(b). And while not specifically an EADACPA remedy, punitive damages (under Civil Code Section 3294) were made a part of most elder and dependent adult abuse cases since the proof required to show entitlement to EADACPA’s remedies was often the same proof needed for punitive damages. In certain circumstances, the punitive damages could even be trebled. Civ. Code § 3345.

By contrast, in an action for professional negligence against a health care provider, attorneys’ fees and costs are not recoverable absent a contract or statute (and rarely does such a contract or statute exist). The fee recovered by plaintiffs’ attorneys from their clients is restricted by a sliding scale. A decedent’s pain andsuffering damages are never recoverable. Punitive damages are not recoverable unless some intentional tort theory of liability (e.g., fraud or battery) is also proved and the requirements of Civil Code Section 3294 are satisfied.

PROVING ELDER AND DEPENDENT ADULT ABUSE
Entitlement to the enhanced remedies of EADACPA requires a showing, by clear and convincing evidence, that the defendant physically abused, financially abused, or neglected an elder or dependent adult with recklessness, oppression, fraud or malice. Welf. & Inst. Code § 15657. An “elder” is any California resident 65 years of age or older. Welf. & Inst. Code § 15610.27. A “dependent adult” is any California resident between the ages of 18 and 64 with a physical or mental limitation that restricts his or her ability to carry out normal activities or to protect his or her rights. Welf. & Inst. Code § 15610.23(a). Amazingly, a dependent adult includes “any person between the ages of 18 and 64 years who is admitted as an in-patient to a 24-hour care facility.” Welf. & Inst. Code § 15610.23(b). A “24-hour care facility” includes a general acute care hospital. Health & Safety Code § 1250.

“Physical abuse” includes criminal conduct such as assault, battery, rape and incest. Welf. & Inst. Code § 15610.63(a),(b),(c) and (e). However, physical abuse also includes unreasonable physical restraint, prolonged or continued deprivation of food or water, and the use of physical or chemical restraint or psychotropicmedication for punishment, for a period beyond that for which the medication was ordered, or for any purpose not authorized by a doctor. Welf. & Inst. Code § 15610.63(c) and (f). “Financial abuse” includes the wrongful taking or misappropriating of the money or property of an elder or dependent adult with the intent to defraud. Welf. & Inst. Code § 15610.30. “Neglect” is simply the negligent failure to exercise that degree of care that a reasonable person in a like position would exercise. Welf. & Inst. Code § 15610.57.

“Recklessness” is a subjective state of culpability greater than negligence; a deliberate disregard of the high probability that an injury will occur. Delaney v. Baker (1999) 20 Cal.4th 23, 31. “Oppression” is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Civ. Code § 3294(c)(2). “Fraud” is an intentional misrepresentation or concealment of a material fact with the intent to cause injury. Civ. Code § 3294(c)(3). “Malice” is conduct intended to cause injury to the plaintiff or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. Civ. Code § 3294(c)(1).

“Clear and convincing evidence” is evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the facts for which it is offered as proof. BAJI 2.62. This burden of proof is somewhere between a “preponderance of the evidence” and “beyond a reasonable doubt.” Only a jury knows exactly where. As mentioned above, the clear and convincing showing of oppression, fraud or malice in an action for elder or dependent adult abuse is the same showing necessary for an award of punitive damages. Therefore, proving one may very well prove the other. No additional effort may be needed to recover punitive damages.

THE REPORTING REQUIREMENTS
EADACPA governs the reporting of elder and dependant adult abuse and neglect as well. Health practitioners are “mandated reporters” who must report known or suspected physical abuse, abandonment, isolation, financial abuse, or neglect. Welf. & Inst. Code § 15630. Reports must be made by telephone immediately and in writing within two days. Welf. & Inst. Code § 15630. To whom a report is made (e.g., law enforcement, Department of Health Services, Bureau of Medical Fraud, etc.) depends on the circumstances of the abuse.

Health practitioners have no duty to investigate known or suspected abuse. In addition, health practitioners who report known or suspected abuse are immune from civil and criminal liability for any report authorized or mandated under EADACPA. Welf. & Inst. Code § 15634(a). An absolute privilege exists in favor of those required to make reports. Easton v. Sutter Coast Hospital (2000) 95 Cal.Rptr.2d 316, 320. Because the privilege is absolute rather than qualified, the truth or falsity of the report is of no moment. Id. On the other hand, the failure to report known or suspected abuse or neglect, while not civilly actionable, is a misdemeanor punishable by imprisonment, a fine, or both.

WHY NOW?
EADACPA is not new. EADACPA’s enhanced remedies have been available for more than eight years. Why then has the popularity of elder abuse litigation only recently increased?

Three years ago, in Mueller v. St. Joseph Medical Center (1997) 58 Cal.App.4th 1531 (a superseded opinion and, thus, no longer citable), this author represented several medical doctors in a professional negligence and elder abuse action. The trial court sustained defendants’ demurrer without leave to amend on the elder abuse count, finding that health care providers were governed exclusively by the provisions of MICRA -- rather than the provisions of EADACPA -- where the act or omission was directly related to the rendition of professional services. The Second District Court of Appeal agreed.

However, the First District Court of Appeal reached a different conclusion in Delaney v. Baker (previously published at 59 Cal.App.4th 1403). In an attempt to resolve these two conflicting appellate opinions, California’s Supreme Court granted review in both Mueller and Delaney. In May 1999, the Supreme Court affirmed Delaney and found that an action for professional negligence is distinct from one for reckless neglect. Delaney v. Baker, supra, 20 Cal.4th 23, 30- 31. Therefore, a health care provider who engages in reckless neglect is subject to EADACPA’s heightened remedies rather than MICRA’s limited remedies. The Supreme Court shined a spotlight on elder abuse and the plaintiff’s bar took notice.

A CAP ON PAIN AND SUFFERING?
Ironically, while the Supreme Court ruled in Delaney that an action for professional negligence is not an action for reckless neglect (the former being governed by MICRA, the latter by EADACPA), the Legislature decided that the damages recoverable under EADACPA shall not exceed those allowed pursuant to Civil Code Section 3333.2(b) -- a MICRA provision. Welf. & Inst. § 15657(b). Section 3333.2(b) of the Civil Code caps noneconomic damages at $250,000.00 in personal injury actions against health care providers based on professional negligence. Whether this cap on pain and suffering in EADACPA cases applies without qualification or only where the conduct in question is “based on professional negligence” is the subject of debate and an issue not yet resolved. See, e.g., Barris v. County of Los Angeles (1999) 20 Cal.4th 101; Delaney v. Baker, supra, 20 Cal.4th 23.

The Problem

While accomplishing one of its intended goals (i.e., to entice more lawyers to take elder abuse cases), the Legislature has seemingly brought about an unintended result. EADACPA’s strong financial incentives have proved too much for some consumer advocate attorneys to resist and may explain, at least in part, the recent increase in elder abuse litigation. What once was a garden variety medical malpractice action is now frequently pleaded as elder abuse when the patient is over the age of 65 years. Elder abuse allegations are being, well, abused. Moreover, EADACPA’s overbroad language makes virtually every patient between the ages of 18 and 64 years who is hospitalized more than 24 hours a “dependent adult”. This creates the real potential for allegations of dependent adult abuse to be abused as well.

Another partial explanation for the increase in EADACPA filings may be the Medical Injury Compensation Reform Act (MICRA). Since 1975, a health care provider’s exposure for a plaintiff’s noneconomic damages has been limited to $250,000.00 in actions based on professional negligence. Civ. Code § 3333.2. For almost as long, the plaintiff’s bar has been attempting to convince the Legislature to raise the MICRA cap. For now, plaintiffs’ lawyers continue to search for the means to make actions against health care providers more lucrative. With its heightened remedies, EADACPA affords such means.

Another Problem

For many health care providers, allegations of elder and dependent adult abuse and neglect constitute uninsurable claims. By and large, professional liability insurers are denying coverage to their insureds for damages resulting from claims of such abuse or neglect. The unfortunate result is a shifting of the financial burden to the individual health care provider.

Without insurance for such claims, the health care provider’s own personal assets may be exposed. Sadly, most at risk are those dedicated health care professionals willing to accept minimal fee rates, often restricted by programs such as Medi-Cal or Medicare, to manage the many needs of the elderly and dependent adults at nursing homes and other institutions.

The current law on elder and dependent adult abuse is fraught with problems. The mere threat of enhanced remedies and uninsured claims can create a forceful impetus to settle cases with questionable merit. The health care provider may feel compelled to settle an action for some compromised amount rather than risk the exposure of his or her own assets following an adverse jury verdict. A number of multi-million dollar jury verdicts in California elder abuse cases may give health care providers even greater cause for concern.

Dependent Adult Abuse

Worth repeating, EADACPA’s definition of “dependent adult” is so broad that essentially anyone who stays in a general acute care hospital more than 24 hours qualifies so long as he or she is between 18 and 64 years of age. Although a dependent adult must still prove, at a minimum, that the health care provider recklessly neglected him or her, the potential population of plaintiffs is likely much larger than the Legislature intended. By statute, a 25 year old pregnant patient admitted for the delivery of her baby could be a dependent adult. A 37 year old obese patient admitted for elective gastric bypass surgery could also be a dependent adult. So could an 18 year old patient admitted for the removal of his appendix. Likewise, someone between 18 and 64 years with a physical or mental limitation that restricts his or her ability to carry out normal activities is also a dependent adult. Does this mean a 42 year old patient with a limp satisfies the definition? What about a 19 year old patient with a bad headache? The possibilities seem endless.

Interestingly, dependent adult abuse filings do not appear to be rising at the same rapid rate as elder abuse filings. At least not yet. One reason for this may be the absence of a high-profile published opinion involving dependent adult abuse. Both Delaney v. Baker and Mueller v. St. Joseph involved elders, not dependent adults. Three recently published decisions in actions brought under EADACPA also involve elders rather than dependent adults. See Conservatorship of Gregory v. Beverly Enterprises (2000) 95 Cal.Rptr.2d 336 (certified for partial publication), Easton v. Sutter Coast Hospital, supra, 95 Cal.Rptr.2d 316, and Community Care and Rehabilitation Center v. Superior Court (2000) 79 Cal.App.4th 787.

No Easy Answer

Claims of elder abuse commonly arise from omissions rather than commissions. Indeed, certain omissions seem to be pleaded in most of the elder abuse complaints seen by this author. These include a failure to employ adequate staffing levels, a failure to develop a plan of care, a failure to accurately maintain medical records, a failure to obtain informed consent, a failure to properly administer medications, a failure to monitor intake and output of fluids, a failure to care for the patient’s hygiene, and a failure to reduce the incidence of incontinence and bedsores.

The key for the health care professional, in addition to providing proper medical care and treatment, may be documentation. When the health care provider’s involvement in the patient’s care is documented, it becomes more difficult to distinguish as something other than ordinary professional negligence. However, the absence of such documented involvement suggests a lack of care or, worse, neglect.