Elder Abuse Must be Clear and Convincing in Order to Recover Attorney's Fees
by: Jonathan Corr and Juliette Tognetti
Plaintiff's ability to recover attorney's fees in elder abuse cases just got a little tougher. Under Welfare and Institutions Code Section 15657, Plaintiff is awarded reasonable attorney's fees and costs where Plaintiff can prove, by clear and convincing evidence, that Defendant was reckless, oppressive, fraudulent or malicious in the commission of abuse or neglect. Because elder abuse cases are complex and require an extensive amount of pre-trial work up, an award of attorney's fees under this statute can be substantial.
In Perlin v. Fountain View Management, Inc., a 90 year old woman, Perlin, was assigned to a continuous passive motion (CPM) machine to improve her range of motion after a knee replacement surgery. As a result of improper use of the machine Perlin developed pressure wounds on her calf and was transferred to another hospital for treatment. Shortly after her transfer Perlin died of pneumonia. At trial, the jury received special verdict instructions in which each element of the claim could be proven by either clear and convincing evidence or the lesser standard of preponderance of the evidence. The jury returned a Plaintiff's verdict, finding clear and convincing evidence of recklessness, but found that the element of causation was proven by the lesser standard of preponderance of the evidence. Thus, Plaintiff could not recover attorney's fees under Code Section 15657 because the element of causation was not proven by clear and convincing evidence. Denial of attorney's fees was upheld on appeal.
While many recent appellate decisions in elder abuse cases have been Plaintiff friendly, Perlin confirms that the enhanced remedies available under Welfare and Institutions Code Section 15657 should be reserved for those cases that demonstrate clear injury, not every case involving an elder or dependant adult.