What Amount of Proof is Needed to Win an Elder Abuse Claim?

What Amount of Proof is Needed to Win an Elder Abuse Claim?

Old woman in nursing home room with letter in hands

Elder neglect is insidious for many reasons, not the least of which is that it often goes unnoticed, unreported, and unlitigated, even though the elders who are victimized by neglect suffer nonetheless. Statistics indicate that, while 1 in 10 seniors experience elder abuse, fewer than 1 in 6 of those cases is ever reported. If you have noticed or suspected that a family member is experiencing elder neglect at the hands of a nursing home or assisted living facility, you have already taken the first step in combatting elder abuse. But many family members in your position may nonetheless feel pessimistic about their chances for bringing a successful lawsuit over elder neglect because they are concerned that they do not have the proof necessary to win. But, by working with an experienced elder neglect attorney, your attorney can take the lead on investigating and compiling the proof necessary to build your claim and win the recovery your family member deserves.

Defining Elder Neglect in California

California state law on elder abuse defines elder neglect as being, “The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” Common examples of elder neglect – although there may be many other acts that a California court would rule to be elder neglect – include:

  • Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter
  • Failure to provide medical care for physical and mental health needs
  • Failure to protect from health and safety hazards
  • Failure to prevent malnutrition or dehydration

How Elder Neglect Cases Are Won

Nursing homes and assisted living facilities clearly want to avoid being held liable for elder neglect and so it is quite common for employees, administrators, and attorneys for these organizations to push back on claims of elder neglect by attempting to offer evidence of compliance with state requirements. And because defendants in elder neglect cases actually occupy and control the property on which the elder neglect occurred as well as supervise and employ the employees who may be able to offer corroborating evidence, the deck can seem stacked against you in building a compelling case that can offer convincing proof to a jury.

This challenge, however, is exactly the type of issues that experienced, successful elder neglect attorneys deal with and overcome on a regular basis. An experienced elder neglect attorney will be able to assess whatever evidence you do have at the outset of bringing a case – which could be as simple as the personal account of a family member, and potentially other pieces of evidence such as photographs of living conditions – and determine how best to proceed in gathering more evidence.

Once an allegation of elder neglect meets the minimum standard of surviving a motion to dismiss in a California court, your attorney will have the opportunity and means by which to collect further evidence directly from the defendant’s control to help build your case. This is called the discovery phase of a trial, and can include:

  • Document requests made to the defendant, its administrators, and its employees
  • Requests for admissions made by the defendants
  • Depositions under oath of defendant owners, administrators, employees, and any other parties with potentially relevant information

None of these discovery tools are your obligation to fully understand or master, but the important takeaway here is that an experienced elder neglect attorney will indeed have plenty of methods to gather further evidence in support of an elder neglect claim, and speaking with an attorney can provide you the best gauge of your ultimate likelihood of success in an elder neglect claim.

Contact the CA Elder Abuse Attorneys at Johnson Moore Today

At Johnson Moore, we have dedicated our practice to defending the elderly from abuse, including elder neglect. We know full well that elder abuse victims and their families often face stonewalling, denial, and even intimidation when they try to take action against elder abuse. We will listen to your concerns and assess what steps we can take on your behalf. Contact Johnson Moore today to schedule a free consultation on your potential California elder neglect/abuse claim.

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