Older individuals, often deemed vulnerable, are subject to abuse, especially in nursing homes. Prosecutors aggressively pursue any mistreatment inflicted upon the elderly due to their susceptibility to various forms of abuse, like physical harm, emotional distress, financial exploitation, or neglect.
The objective is to hold wrongdoers accountable, deter potential perpetrators, and protect older adults. Reporting mechanisms and investigative services are also established to support and safeguard vulnerable elderly individuals.
An allegation of abuse, especially when the victims are seniors, is grave. The potential penalties imposed are equally consequential.
What is the Legal Position on Nursing Home Abuse?
Seniors are individuals aged 65 years and older. The California Welfare and Institutions Code, particularly within Chapter 11 of the Elder Abuse and Dependent Adult Civil Protection Act, is designed to protect this age group against abuse and exploitation.
Per the law, seniors are dependent adults. Dependent adults are individuals aged 18 to 64 residing in California. They have physical or mental limitations that hinder their ability to perform regular activities or safeguard their rights. This definition includes those with physical or developmental disabilities and those whose abilities have diminished due to age.
Moreover, a dependent adult also covers individuals aged 18 to 64 admitted as inpatients to 24-hour health facilities, as defined in specific sections of the Health and Safety Code.
Nursing home abuse occurs when a victim aged 65 or older experiences one or more of the following forms of mistreatment in a nursing home or assisted living facility:
Physical Abuse
Physical abuse involves the deliberate use of force to cause bodily harm or pain to another person. In the context of elder abuse or nursing home abuse, it refers to intentional acts that harm or cause suffering to an elderly or dependent adult. This includes:
- Deliberately causing unjustifiable pain or suffering to an elderly resident.
- Unlawfully restraining them or false imprisonment.
- Improperly administering medications or engaging in sexual abuse.
Neglect
In nursing homes, neglect occurs when caregivers or responsible individuals do not meet the fundamental needs of elderly residents. These needs include food, water, hygiene, shelter, medical care, and protection from harm. Neglect can result in:
- Physical and emotional harm.
- Malnutrition.
- Injuries, and
- A decline in the overall health and quality of life for the victim of the neglect.
Emotional Abuse
Emotional abuse pertains to actions or behaviors that inflict emotional distress, pain, or suffering on an elderly or dependent adult. This mistreatment could involve verbal threats, isolation, insults, humiliation, intimidation, or any conduct that undermines the individual's emotional well-being and self-esteem.
Emotional abuse can have severe and enduring impacts on the victim, affecting their mental health, self-esteem, and overall quality of life.
Financial Abuse
Financial abuse occurs when an elderly resident's money or property is mismanaged. This occurs in violation of laws related to theft, embezzlement, or other financial misconduct. It is deemed to have occurred when a person or entity does any of the following:
- Takes, hides, acquires, misappropriates, or keeps personal or real property of an elder or dependent adult for wrongful use or with the intent to defraud, or both.
- Aids in taking, hiding, acquiring, misappropriating, or keeping personal or real property of an elder or dependent adult for wrongful use or with the intent to defraud, or both.
- Takes, hides, acquires, misappropriates, or keeps, or aids in taking, hiding, acquiring, misappropriating, or keeping personal or real property of an elder or dependent adult through undue influence, as defined in Section 15610.70
Investigations of Nursing Home Abuse
Nursing homes in California are subject to oversight and investigations conducted by several agencies and entities to ensure compliance with state regulations and the well-being of residents. These key organizations include:
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Local Ombudsman
Long-Term Care Ombudsman Programs advocate for residents' rights and well-being, addressing complaints related to care quality and living conditions within nursing homes.
The California Department of Aging operates the Ombudsman program. When the Ombudsman receives a complaint about nursing home elder abuse, an investigation is initiated. During this investigation, the local Ombudsman will communicate with several parties, including:
- The resident who is the alleged victim — The Ombudsman will engage with the elderly resident who is the alleged victim to gather information and address their concerns.
- The nursing home's staff — Interviews with the nursing home's staff members could be conducted to obtain their perspectives and insights into the situation.
- The nursing home's administration — Discussions with the nursing home's administration can provide further context and information related to the complaint.
Additionally, the Ombudsman typically conducts an on-site investigation by visiting the nursing home. This allows them to assess the conditions, speak directly with residents and staff, and gather evidence to determine the validity of the complaint.
When the Ombudsman identifies a legitimate complaint concerning nursing home elder abuse, they will forward the case to the California Department of Public Health.
Note: Mandated reporters, those individuals with a legal obligation to report known or suspected child or elder abuse, are responsible for notifying the appropriate authorities. This obligation extends to staff and administrators in nursing homes, who are recognized as mandated reporters. Their reporting duties include two vital steps:
- Reporting to the local ombudsman's office — Mandated reporters often find it necessary to report elder abuse cases to the Ombudsman's office.
- Reporting to a local law enforcement agency — In addition, mandated reporters are usually obligated to report known or suspected elder abuse cases to their local law enforcement agency. This step assumes utmost importance when elder abuse scenarios could involve criminal activities or pose immediate threats to the affected elderly individuals.
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California Department of Public Health (CDPH)
Responsible for licensing and regulating healthcare facilities, CDPH conducts routine inspections and investigations to ensure facilities adhere to state laws and regulations.
Upon receiving cases from the Ombudsman, the California Department of Public Health commences its investigation and could take the following actions:
- Pursue civil penalties — CDPH could seek civil penalties against the nursing home or the implicated nursing home employee as part of its efforts to address regulatory non-compliance and ensure resident safety.
- Refer the case for criminal investigation — In more grave cases or those involving potential violations, CDPH will refer the case to the local district attorney's office or the California Attorney General's Bureau of Medi-Cal Fraud and Elder Abuse for a criminal investigation. This step is aimed at addressing instances of nursing home abuse that may necessitate legal action and prosecution.
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California Attorney General's Office
The AG’s office is tasked with investigating cases of abuse, neglect, and fraud in healthcare facilities. They could then take legal action against those involved in wrongdoing, depending on their findings. The AG’s office, in its preparation for the abuse case, will involve other departments, namely:
- California Department of Aging — Overseeing aging-related programs and services, including Adult Protective Services (APS), this department investigates allegations of abuse and neglect among dependent adults and seniors.
- Medicare and Medicaid Programs — Centers for Medicare & Medicaid Services (CMS) at the federal level conduct regular inspections and quality assessments of nursing homes participating in Medicare and Medicaid. They provide information on care quality through the Nursing Home Compare website.
- Local law enforcement agencies — Local law enforcement also plays a role in investigating criminal cases of abuse or neglect in nursing homes, including physical and sexual abuse or financial exploitation.
Penalties You Will Likely Face if Found Guilty of Elder Abuse
Penalties for nursing home abuse vary based on the unique circumstances of each case. The severity of the abuse, the resulting harm to the elderly resident, and the presence of criminal elements all factor into determining the appropriate penalties.
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If the Case Involved a Risk of Death or Great Bodily Injury
When nursing home abuse involving circumstances likely to cause great bodily harm or death occurs, it is considered a "wobbler" offense. This means the prosecutor can file charges for this crime as either a misdemeanor or a felony.
The decision on how to file nursing home abuse charges is based on several factors, including:
- The facts of the case.
- Your criminal history.
If nursing home abuse in these conditions is charged as a misdemeanor, the potential penalties include:
- Summary or misdemeanor probation instead of a jail sentence.
- Jail sentence of up to one year in jail.
- A maximum fine of $6,000.
For felony nursing home abuse in these circumstances, the potential penalties are:
- Formal or felony probation instead of a prison sentence.
- 2, 3, or 4 years in prison.
- A maximum fine of $10,000.
If the victim of felony nursing home abuse suffers great bodily injury, you will also face an additional term in prison:
- Three years if the victim is under 70 years old.
- Five years if the victim is 70 or older.
If the victim dies as a result of the abuse, you will face an additional prison term of:
- Five years if the victim was under 70.
- Seven years if they were 70 or older.
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If There Was No Risk of Death or Great Bodily Injury
Cases of elder abuse involving physical, emotional, or neglect, when they are not likely to result in great bodily injury or death, are categorized as misdemeanors.
The penalties associated with these misdemeanor offenses are as follows:
For a first offense:
- A potential sentence of up to six (6) months in jail.
- A fine of up to $1,000 or both.
For second and subsequent offenses:
- A potential sentence of up to one year in county jail.
- A maximum fine of $2,000 or both.
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Financial Abuse of a Senior
Financial elder abuse committed by caretakers in a nursing home is categorized as a misdemeanor. These crimes occur when the value of the money or property taken is no more than $950. The potential penalties for this misdemeanor are:
- Up to one year in jail.
- A maximum fine of $1,000 or both.
However, when the value of the money or property taken in nursing home elder fraud exceeds $950, it becomes a "wobbler" offense. In these cases, the felony penalties for this more serious offense include:
- Two, three, or four years in jail.
- A fine of up to $10,000 or both.
Defenses Applicable in Nursing Home Abuse Cases
Facing nursing home abuse charges is serious. Having a proficient criminal defense attorney is vital to building a robust defense and attaining the most favorable result. Attorneys can employ various defenses, including:
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False Accusations
Misconceptions about the emotional well-being of seniors in nursing homes are not uncommon. It is often assumed that unhappiness or dissatisfaction in an elderly individual signifies abuse. However, this assumption can be misleading.
Seniors, like individuals of any age, can experience unhappiness for various reasons unrelated to abuse. These assumptions can potentially lead to false accusations, which can have grave consequences for both the accused and the elderly individual in question.
The vulnerabilities associated with aging, like changes in bone density and muscle mass, make seniors more susceptible to physical issues like bruising, falls, and fractures. Additionally, cognitive conditions like dementia can affect their ability to distinguish reality from fiction. This can lead to situations where their emotional state is misunderstood, underscoring the need for careful assessments.
Accusations of elder abuse in nursing homes can be intricate. Colleagues and staff could also make accusations for reasons like diverting attention from their misconduct or addressing workplace conflicts. This complexity emphasizes the importance of impartial and comprehensive investigations to validate such claims.
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Mistaken Identity
Undoubtedly, nursing home elder abuse is a harsh reality, and determining the culprits behind these acts can be a complex challenge.
An added layer of complexity in these cases arises from the widespread issue of memory loss among seniors, particularly those in nursing homes. It is not uncommon for individuals grappling with conditions like dementia to misidentify a caregiver or someone from their past as the alleged perpetrator.
This confusion amplifies the intricacy of investigations.
If the investigations were lacking, you have grounds to challenge the entire case, especially when there is no evidence to corroborate the allegation. Furthermore, nursing home abuse cases can take a distressing turn when financial losses or the disappearance of personal belongings surface while a caregiver is on duty.
The complexities associated with these scenarios could cast doubt on the accuracy of the accusations. Your attorney will conduct an independent, comprehensive, unbiased investigation to ascertain the truth. Any contradictions in support of the reported allegations will be presented as evidence to challenge the case.
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Insufficient Evidence
This defense is critical in challenging the prosecution's case. Your attorney will assert that the available evidence is insufficient to establish your guilt beyond a reasonable doubt.
This defense involves a meticulous analysis of the evidence, including witness credibility, the reliability of physical evidence, and the quality of the investigation. Its primary goal is to cast doubt on the accusations and secure an acquittal when there is insufficient proof to support the allegations.
The burden of proof rests squarely on the prosecution to prove their case. When this burden cannot be met, and there is a lack of substantial evidence to substantiate the accusations, you are entitled to acquittal.
Furthermore, in cases involving nursing home owners, the defense attorney could argue that the owner should not be held guilty of elder abuse charges in the absence of concrete evidence.
This evidence should demonstrate their knowledge or involvement in the abuse. Criminal liability typically depends on proving that you were aware of or were directly complicit in unlawful actions. Without this evidence, the owner should not face guilt.
Civil Lawsuits For Nursing Home Abuse
Civil lawsuits for nursing home abuse offer a legal remedy for victims or their families to pursue compensation when elder abuse or neglect has occurred in a nursing home or assisted living facility. These lawsuits can be directed at various responsible parties, including:
- Caregivers at nursing homes — These are individuals working directly with elderly residents. They include nurses, certified nursing assistants, and other staff members. If they have engaged in abusive or negligent conduct, they can be held accountable for their actions.
- Administrators and supervisors — Persons responsible for overseeing nursing home staff members, including administrators and supervisors, can also be legally liable if they have been negligent in their duties or permitted abuse to occur under their supervision.
- Owners or operators — In some cases, owners or operators of the nursing home could be implicated in the legal proceedings. This is particularly pertinent if there is evidence of systemic issues, inadequate oversight, or a pattern of abuse within the nursing home facility.
In cases of nursing home abuse, a victim who is mentally competent to make legal decisions can typically file a nursing home abuse lawsuit independently. However, if the victim is unable to do so due to physical or mental limitations, the victim's family or a designated representative can step in and take legal action on their behalf.
Two standard methods of representing an abused nursing home resident when they are unable to do so themselves include:
- Power of Attorney (POA) — If the nursing home resident has previously granted a durable power of attorney to a trusted individual, that person can act on their behalf in legal matters, including filing a lawsuit. A durable power of attorney remains in effect even if the nursing home resident becomes incapacitated.
- Court-appointed guardianship — In cases where there is no existing power of attorney or if the abuse has rendered the resident incapacitated, a family member or another concerned party could petition the court to become the legal guardian of the abused individual. Once appointed as a guardian, they have the legal authority to make decisions on the resident's behalf, including pursuing a nursing home abuse lawsuit.
Resolving a nursing home abuse lawsuit can be a time-consuming process, often taking several years if it proceeds to trial. Sometimes, an attorney could seek an out-of-court settlement with the wrongdoer(s) and their insurance company to expedite resolution. If a satisfactory settlement cannot be reached, the lawsuit will proceed to trial, where a jury will hear the evidence and decide.
In addition to seeking damages for the harm suffered, legal action in nursing home abuse cases could also aim to obtain an injunction. The injunction is a court order prohibiting the nursing home from engaging in dangerous or abusive practices. This injunction protects current and future residents of the facility from harm.
Contact a Criminal Defense Attorney Near Me
If you have been accused of nursing home abuse or are facing prosecution for the offense in Van Nuys, Leah Legal is ready to assist. Call us at 818-484-1100. We will guide and represent you throughout the process.