Wrongful Death Elder Abuse Damages

I recently resolved a wrongful death elder abuse case. My clients were the children of a patient at a skilled nursing facility. The patient had a major drop in her health yet the facility failed to take appropriate steps. Unfortunately, the patient passed away. Figuring out damages in a case like this can be tricky because there are multiple theories on which the skilled nursing facility could be found at fault.

Wrongful Death Damages

“A plaintiff in a wrongful death action is entitled to recover damages for his own pecuniary loss, which may include (1) the loss of the decedent’s financial support, services, training and advice, and (2) the pecuniary value of the decedent’s society and companionship…” Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1264, 45 Cal. Rptr. 3d 222, 226–27 (2006). Code Civ. Proc., § 377.61. The heirs of the decedent can claim these damages in regular cases and for elder abuse wrongful death cases.

Elder Abuse Damages in Wrongful Death Cases

In Elder Abuse cases, Welfare and Institutions Code section 15657 provides for heightened remedies, including recovery for the decedent’s predeath pain, suffering, and disfigurement, to a successor in interest to a decedent’s cause of action “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse … in addition to all other remedies provided by law.” (See Welf. & Inst.Code., § 15657, subds. (a) & (b).) Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1265, 45 Cal. Rptr. 3d 222, 227–28 (2006). The damages under such circumstances also include attorney’s fees and costs.

Elder Abuse versus Professional Negligence

Health care provider who engages in reckless neglect of an elder adult is subject to the heightened remedies available under Elder Abuse and Dependent Adults Civil Protection Act; cause of action for such reckless neglect (wrongful death elder abuse) is distinct from one for professional negligence, and thus the restrictions on remedies against health care providers for professional negligence are inapplicable. Delaney v. Baker, 20 Cal. 4th 23, 971 P.2d 986 (1999).

Confidential Settlements

Notwithstanding any other provision of law, it is the policy of the State of California that confidential settlement agreements are disfavored in any civil action the factual foundation for which establishes a cause of action for a violation of the Elder Abuse and Dependent Adult Civil Protection Act. Cal. Civ. Proc. Code § 2017.310.