CACI No. 3103. Neglect - Essential Factual Elements (Welf. & Inst. Code, § 15610.57)

Judicial Council of California Civil Jury Instructions (2020 edition)

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3103.Neglect - Essential Factual Elements (Welf. & Inst. Code,
§ 15610.57)
[Name of plaintiff] claims that [he/she/nonbinary pronoun/[name of
decedent]] was neglected by [[name of individual defendant]/ [and] [name of
employer defendant]] in violation of the Elder Abuse and Dependent Adult
Civil Protection Act. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [[name of individual defendant]/[name of employer defendant]’s
employee] had a substantial caretaking or custodial relationship
with [name of plaintiff/decedent], involving ongoing responsibility
for [his/her/nonbinary pronoun] basic needs, which an able-bodied
and fully competent adult would ordinarily be capable of
managing without assistance;
2. That [name of plaintiff/decedent] was [65 years of age or older/a
dependent adult] while [he/she/nonbinary pronoun] was in [[name
of individual defendant]’s/[name of employer defendant]’s
employee’s] care or custody;
3. That [[name of individual defendant]/[name of employer defendant]’s
employee] failed to use the degree of care that a reasonable
person in the same situation would have used in providing for
[name of plaintiff/decedent]’s basic needs, including [insert one or
more of the following:]
3. [assisting in personal hygiene or in the provision of food, clothing,
or shelter;]
3. [providing medical care for physical and mental health needs;]
3. [protecting [name of plaintiff/decedent] from health and safety
hazards;]
3. [preventing malnutrition or dehydration;]
3. [insert other grounds for neglect;]
4. That [name of plaintiff/decedent] was harmed; and
5. That [[name of individual defendant]’s/[name of employer
defendant]’s employee’s] conduct was a substantial factor in
causing [name of plaintiff/decedent]’s harm.
New September 2003; Revised December 2005, June 2006, October 2008, January
2017
374
Copyright Judicial Council of California
Directions for Use
This instruction may be given in cases brought under the Elder Abuse and
Dependent Adult Civil Protection Act (the Act) by the victim of elder neglect, or by
the survivors of the victim. If the victim is the plaintiff and is seeking damages for
pain and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage), in the Damages series.
If the plaintiff seeks the enhanced remedies of attorney fees and costs, and in the
case of a wrongful death, the decedent’s pain and suffering, give CACI No. 3104,
Neglect - Enhanced Remedies Sought, in addition to this instruction. (See Welf. &
Inst. Code, § 15657.)
If the individual responsible for the neglect is a defendant in the case, use “[name of
individual defendant]” throughout. If only the individual’s employer is a defendant,
use “[name of employer defendant]’s employee” throughout.
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give either CACI No. 3102A, Employer Liability for Enhanced Remedies - Both
Individual and Employer Defendants, or CACI No. 3102B, Employer Liability for
Enhanced Remedies - Employer Defendant Only. To recover damages against the
employer under a theory of vicarious liability, see instructions in the Vicarious
Responsibility series (CACI No. 3700 et seq.).
The Act does not extend to cases involving professional negligence against health-
care providers as defined by the California Medical Injury Compensation Reform
Act of 1975 (MICRA) unless the professional had a substantial caretaking or
custodial relationship with the elder or dependent adult patient, involving ongoing
responsibility for one or more basic needs (Winn v. Pioneer Medical Group, Inc.
(2016) 63 Cal.4th 148, 152 [202 Cal.Rptr.3d 447, 370 P.3d 1011]; see Welf. & Inst.
Code, § 15657.2; Civ. Code, § 3333.2(c)(2).)
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• “Elder Abuse” Defined. Welfare and Institutions Code section 15610.07.
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “Neglect” Defined. Welfare and Institutions Code section 15610.57.
• Claims for Professional Negligence Excluded. Welfare and Institutions Code
section 15657.2.
• “It is true that statutory elder abuse includes ‘neglect as defined in Section
15610.57,’ which in turn includes negligent failure of an elder custodian ‘to
provide medical care for [the elder’s] physical and mental health needs.’ . . .
‘[N]eglect’ within the meaning of Welfare and Institutions Code section
15610.57 covers an area of misconduct distinct from ‘professional negligence.’
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As used in the Act, neglect refers not to the substandard performance of medical
services but, rather, to the ‘failure of those responsible for attending to the basic
needs and comforts of elderly or dependent adults, regardless of their
professional standing, to carry out their custodial obligations.’ Thus, the statutory
definition of ‘neglect’ speaks not of the undertaking of medical services, but of
the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court
(2004) 32 Cal.4th 771, 783 [11 Cal.Rptr.3d 222, 86 P.3d 290], original italics,
internal citations omitted.)
• “The Elder Abuse Act does not ‘apply whenever a doctor treats any elderly
patient. Reading the act in such a manner would radically transform medical
malpractice liability relative to the existing scheme.’ ” (Alexander v. Scripps
Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 223 [232 Cal.Rptr.3d
733], original italics.)
• “We granted review to consider whether a claim of neglect under the Elder
Abuse Act requires a caretaking or custodial relationship - where a person has
assumed significant responsibility for attending to one or more of those basic
needs of the elder or dependent adult that an able-bodied and fully competent
adult would ordinarily be capable of managing without assistance. Taking
account of the statutory text, structure, and legislative history of the Elder Abuse
Act, we conclude that it does.” (Winn, supra, 63 Cal.4th at p. 155.)
• “[T]he Act does not apply unless the defendant health care provider had a
substantial caretaking or custodial relationship, involving ongoing responsibility
for one or more basic needs, with the elder patient. It is the nature of the elder
or dependent adult’s relationship with the defendant - not the defendant’s
professional standing - that makes the defendant potentially liable for neglect.”
(Winn, supra, 63 Cal.4th at p. 152.)
• “The Act seems premised on the idea that certain situations place elders and
dependent adults at heightened risk of harm, and heightened remedies relative to
conventional tort remedies are appropriate as a consequence. Blurring the
distinction between neglect under the Act and conduct actionable under ordinary
tort remedies - even in the absence of a care or custody relationship - risks
undermining the Act’s central premise. Accordingly, plaintiffs alleging
professional negligence may seek certain tort remedies, though not the
heightened remedies available under the Elder Abuse Act.” (Winn, supra, 63
Cal.4th at p. 159, internal citation omitted.)
• “ ‘[I]t is the defendant’s relationship with an elder or a dependent adult - not the
defendant’s professional standing or expertise - that makes the defendant
potentially liable for neglect.’ For these reasons, Winn better supports the
conclusion that the majority of [defendant]’s interactions with decedent were
custodial. [Defendant] has cited no authority allowing or even encouraging a
court to assess care and custody status on a task-by-task basis, and the Winn
court’s focus on the extent of dependence by a patient on a health care provider
rather than on the nature of the particular activities that comprised the patient-
provider relationship counsels against adopting such an approach.” (Stewart v.
CACI No. 3103 ELDER ABUSE & DEPENDENT ADULTS
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Superior Court (2017) 16 Cal.App.5th 87, 103-104 [224 Cal.Rptr.3d 219].)
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “Neglect includes the failure to assist in personal hygiene, or in the provision of
food, clothing, or shelter; the failure to provide medical care for physical and
mental health needs; the failure to protect from health and safety hazards; and
the failure to prevent malnutrition or dehydration.” (Avila v. Southern California
Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 843 [230 Cal.Rptr.3d 42].)
• “[T]he statutory definition of neglect set forth in the first sentence of Welfare
and Institutions Code section 15610.57 is substantially the same as the ordinary
definition of neglect.” (Conservatorship of Gregory v. Beverly Enterprises, Inc.
(2000) 80 Cal.App.4th 514, 521 [95 Cal.Rptr.2d 336].)
• “[N]eglect as a form of abuse under the Elder Abuse Act refers ‘to the failure of
those responsible for attending to the basic needs and comforts of elderly or
dependent adults, regardless of their professional standing, to carry out their
custodial obligations.’ ” (Carter v. Prime Healthcare Paradise Valley LLC (2011)
198 Cal.App.4th 396, 404 [129 Cal.Rptr.3d 895].)
• “It seems to us, then, that respecting the patient’s right to consent or object to
surgery is a necessary component of ‘provid[ing] medical care for physical and
mental health needs.’ Conversely, depriving a patient of the right to consent to
surgery could constitute a failure to provide a necessary component of what we
think of as ‘medical care.’ ” (Stewart,supra, 16 Cal.App.5th at p. 107, internal
citation omitted.)
• “[A] violation of staffing regulations here may provide a basis for finding
neglect. Such a violation might constitute a negligent failure to exercise the care
that a similarly situated reasonable person would exercise, or it might constitute
a failure to protect from health and safety hazards . . . . The former is the
definition of neglect under the Act, and the latter is just one nonexclusive
example of neglect under the Act.” (Fenimore v. Regents of University of
California (2016) 245 Cal.App.4th 1339, 13481349 [200 Cal.Rptr.3d 345].)
• “Disagreements between physicians and the patient or surrogate about the type
of care being provided does not give rise to an elder abuse cause of action.”
(Alexander, supra, 23 Cal.App.5th at p. 223.)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865, 1869-1871
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 2.70-2.71
3 Levy et al., California Torts, Ch. 31 Liability of Physicians and Other Medical
Practitioners, § 31.50[4][d] (Matthew Bender)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[3] (Matthew Bender)
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