Elder abuse is something more than medical negligence

Personal injury law includes work in the elder abuse area and it’s important to understand that, in California, the remedies for elder abuse are much stronger than we are allowed for medical malpractice.

In general, California law is restrictive when it comes to medical malpractice. Under the MICRA statutes, general damages (meaning pain and suffering) are limited to no more than $250,000 no matter how horrible the injury.

Attorney fee caps also limit the amount you can pay a lawyer under a contingent fee contract, which means that unless you are able to pay by the hour, your choices for representation are limited, if you are able to find a lawyer willing to take your case at all.

The California legislature provided some relief from these restrictions in the case of elder abuse, but with some caveats.

Our Supreme Court explained in Delaney v. Baker (1999) 20 Cal.4th 23, that where a doctor, hospital or nursing home are reckless in their care of an elder (defined as someone 65 years of age or older or a dependant adult), then the MICRA limits do not apply.  Discussing the meaning of Welfare & Institutions Code section 15600 et seq., the court said:

“In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature. (Civ. Code, § 3294, subd. (c); see also College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 [34 Cal.Rptr.2d 898, 882 P.2d 894].) (4 ) “Recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the “high degree of probability” that an injury will occur (BAJI No. 12.77 [defining “recklessness” in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than “inadvertence, incompetence, unskillfulness, or a failure to take precautions” but rather rises to the level of a “conscious choice of a course of action … with knowledge of *32 the serious danger to others involved in it.” (Rest.2d Torts, § 500, com. (g), p. 590.)”

I mention this because MICRA limits have definitely closed the courthouse door to many claims in California.  But where there are facts suggesting elder abuse, it’s worthwhile to consult a knowledgeable attorney to find out if there is a remedy under the law.


Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.