Available damages

In a recent interview, J. Niley Dorit, a California attorney and member of the Advocate Law Group whose practice consists of elder and dependent neglect, elder and dependent abuse, medical malpractice and general personal injury cases, explained what damages are available to victims of elder and dependent care abuse:

Damages generally consist of actual out-of-pocket expenses, increased medical care, increased home care (if daily care is needed), out of pocket expenses, hospitalizations and things of that nature. Traditional personal injury damages are available, plus some enhanced remedies. Unlike personal injury or medical malpractice cases, one of the most significant damages available is that the victim's attorney is entitled to ask for and receive attorneys' fees.

So, in cases where the degree of injury might not be sufficient for an attorney to take the case on, once there is a rightful claim, there can be a recovery also for attorneys' fees. In addition, wrongful death cases in California don't allow for suffering prior to a death, whereas elder neglect cases allow for recovery of pre-death suffering.

Pain & Suffering

Pain and suffering, or mental anguish, may also be compensable, according to Dorit, as they would fall under the rubric of the injury itself. He provided the following examples:

We had a case recently where a gentleman suffering from severe dementia fell and broke his leg, but there was a long delay before medical care was ever called for him. During that period of time, although he wasn't able to communicate what was wrong, it was clear that he was suffering and the facility didn't do anything.

So, during that lapse of time while he had a broken bone and was basically trying to function with a broken bone, the facility ended up being responsible for the discomfort that he had during all of those days and the anguish that he had to go through because he simply didn't have the wherewithal to know that he needed a doctor. The facility knew that he needed a doctor; they simply didn't act on it.

Damage caps

We asked Dorit whether California places caps on damages in elder and dependent abuse cases. He told us, "There really are no caps in elder and dependent abuse cases, except for pre-death pain and suffering which is capped at $250,000. However, in other kinds of personal injury cases, there are no pre-death pain and suffering damages allowed at all."

If you or a loved one has been the victim of elder or dependent care abuse or neglect, contact an attorney whose practice focuses in this area of law. For a free, no-obligation consultation with a qualified attorney, please click here.