California governor vetoes elder abuse bill regarding evidence

Law would have made it easier to prove nursing home abuse when documents have been altered or destroyed.

By their nature, lawsuits alleging elder abuse in nursing homes are hard to prove. The victims may not be able to communicate, may have diminished mental capacity to understand what happened or may be afraid to report for fear of retaliation. In the worst cases, severe abuse can result in death.

Nursing home record falsification

An additional problem with proving abuse and neglect in these suits is that perpetrators may intentionally destroy, alter or falsify patient paperwork, medical records or other related evidence, making it even harder for elder abuse victims and their families to get the justice they deserve in court. Because of this pattern of behavior, the California legislature passed a bill (A.B. 859) that would have made it easier for plaintiffs to prove nursing home neglect in cases of evidence spoliation.

Current law

Current California statute provides that if a plaintiff in a civil lawsuit proves by "clear and convincing" evidence that a person has committed neglect or physical abuse of an elderly person or otherwise vulnerable adult, and during the abuse acted with "recklessness, oppression, fraud, or malice," the remedies may include legal fees, costs, reasonable conservator fees if the conservator participated in the suit and other damages.

Noneconomic damages for subjective loss like pain, disfigurement, inconvenience and physical impairment are capped at $250,000. Punitive damages to punish and make an example of the wrongdoer are available, but only in certain circumstances against the nursing facility in its role as employer of an abuser.

Proposed changes

A.B. 859 proposed changing the burden of proof on the plaintiff from clear and convincing to a "preponderance of the evidence" if the plaintiff can show the defendant has committed spoliation of evidence or if the judge or arbitrator discovers the same. In other words, if the alleged abuser falsifies, conceals or destroys evidence relevant to the lawsuit, the amount and quality of evidence required of the plaintiff in court would be lessened to reflect the challenge created by the defendant's wrongful acts.

The veto

On October 2, 2017, Gov. Jerry Brown, D-Calif., issued a controversial veto of this bill.

The editorial board of Sacramento Bee, which had published a major investigative piece on the problem in 2011, had urged the governor to sign the bill. The board wrote that the bill, introduced by Assemblywoman Susan Eggman, D-Stockton, would have helped to "expose and thus discourage what was [until the investigation] a largely untold story of falsification of patient records in nursing homes."

In his veto statement, the governor said that current sanctions available to judges for evidence spoliation should suffice.

In response, the Consumer Attorneys Of California issued a statement that current sanctions have not been sufficient to punish nursing homes for spoliation and that the governor was "under pressure to veto by a broad coalition of nursing home and health industry lobbyists."

It remains to be seen if this provision will be introduced again. In the meantime, elder law lawyers will continue to advocate for victims of nursing home abuse and neglect by pursuing personal injury and wrongful death suits on behalf of clients and their families. Anyone facing such horror should immediately consult with such a lawyer.

Time may be of the essence in these cases because of the possibility of record tampering. An early investigation may therefore yield more success.

The lawyers at The Ellis Firm, APLC, with offices in San Diego, Temecula and El Centro, represent seniors who have been victims of elder abuse such as physical, financial, emotional and sexual abuse as well as their families in personal injury and wrongful death lawsuits.