Written By Chris Dolan and Aimee Kirby
My husband has been at a nursing facility that is generally subpar, in my opinion, because we have Medicare and Medi-Cal. He had a fall at home and broke his hip. Sadly, our house has many steps, and the social worker said it would be better for him to be transferred to a nursing facility than to return home with me. Reluctantly, being 77, I agreed to the transfer, although both of us wanted him to come home. He has been at this facility for over six weeks, and his health has declined. He has bed sores, which they tell me are sometimes unavoidable, and when I see him, the nurses don’t seem to be cleaning or taking good care of him. His hair is often not washed, and he is in soiled diapers. He is miserable there. I have reached out to multiple attorneys, and it seems no one is interested in taking my husband’s case as they haven’t killed him yet. Why are attorneys scared to take on these corporations and fight for our rights?
– Natalie from San Francisco, CA
Dear Natalie,
I am sorry to hear what is happening to your husband and how difficult this has been for you. The answer to your question involves the interplay of California’s Medical Malpractice and Elder Abuse Laws. Like many states, California has a law that limits the amount of non-economic damages a Plaintiff can recover in a medical malpractice action and the amount of fees their attorney can collect. This law is called the Medical Injury Compensation Reform Act (MICRA), enacted in 1975.
The plaintiff’s attorneys refer to MICRA cases as being capped or limited in fees and damages. Although recent adjustments to MICRA account for inflation have been made, it still imposes significant restrictions on what can be collected and what attorneys can charge in fees. Because Medical Malpractice cases are very time-consuming and costly to litigate, many attorneys cannot help victims of medical malpractice unless they have large loss-of-earnings claims for future medical needs.
There is a distinction between Medical Malpractice and what we call Elder Abuse. Elder Abuse in California is essentially one step beyond medical malpractice. It is when a person in a fiduciary position, like a doctor or nurse, participates in any physical, emotional, or financial abuse, neglect, abandonment, abduction, isolation, or other treatment that results in harm, pain, or mental suffering. There are four standards of capability for harm of physical abuse or neglect to rise to the category of Elder Abuse. Those categories are
- malice,
- recklessness,
- oppression, or
- fraud
These categories are a step above saying that a fiduciary failed to act in a way per their job and are defined under Civil Code 3294. Recklessness is the deliberate disregard of the high probability that an injury will occur or the conscious choice of a course of action with knowledge of the danger to others involved.
- Malice is an intended course of conduct carried on, causing injury or despicable conduct that is “vile” or “contemptible.”
- Oppression is despicable conduct that subjects the victim to cruel and unjust hardship.
- Fraud is when someone attempts to trick or deceive another, intending to induce them to rely on the statements to deprive someone of their property or rights or cause injury.
Elder abuse cases in California lack the limitations on attorney’s fees and pain and suffering that medical malpractice claims have, and they have also enhanced damages for the plaintiffs. While the caps aren’t a problem if your case falls under Elder Abuse, the attorney must also consider the litigation costs and the settlement range because they take these matters on a contingency basis. Because many healthcare providers have written into their insurance the capability to consent or refuse settlement of claims brought against them, attorneys cannot resolve many cases until trial. You must have a particularly egregious case for an attorney to invest the time and resources into the matter.
While I can’t speculate why one attorney would select your case and why one wouldn’t, I hope this information offers some insight into the matter.
Email questions and topics for future articles to help@dolanlawfirm.com. Each situation is different, and this column does not constitute legal advice. We recommend consulting with an experienced trial attorney to understand your rights thoroughly.
