Common Insurance Defenses for Nursing Home Abuse in California

Mistreatment of an elderly nursing home resident is not only intolerable but in California, it carries heavy civil and criminal penalties. While the law surrounding nursing home abuse and neglect is fairly straightforward, the actual reality of it can be much more complex and challenging to argue. Because nursing home abuse very often happens in a one-on-one situation between caregiver and resident, it’s often hard to find witnesses that can corroborate the abuse or even catch abuse in the act.

All of this can make filing a claim for nursing home abuse difficult. However, it’s not impossible. The fact of the matter is that any form of nursing home abuse or neglect in California is illegal, and has legal and regulatory options for victims to recover compensation for their damages. What this means in real terms is that your elderly loved one will have to face the nursing home’s insurance company in the claims process.

Expert Guidance From Experienced California Nursing Home Abuse Lawyers

At Maison Law, we provide every client with expert legal guidance and support. When victims of nursing home abuse in California need a team of lawyers to work hard for their interests, we’ll be there. Through our experience, we know how insurance companies approach these claims and how to best counter their various tactics. To get started with a free consultation, contact us today.

What Is Nursing Home Abuse in California?

Aside from being a commonly dangerous issue in California nursing homes, abuse and neglect is against the law. Officially codified in Section 15610 of the California Welfare and Institutions Code, the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) is the main law that protects elderly residents and dependent adults from nursing home abuse in California.

The law not only outlines the various protections that nursing home residents have from abuse and neglect in a nursing home, but defines who is protected. Under the law, the following individuals are protected from abuse and neglect:

• Elderly individuals who are 65 years of age or older
• Dependent adults who are between 18 and 64 years of age and have certain physical or mental disabilities that limit their ability to carry out normal activities or protect their rights.

On top of protecting these individuals, the Act also defines the various forms of treatment that could constitute nursing home abuse or neglect. These include:

• Physical abuse – Physical abuse involves the use of force against a resident, such as hitting, pushing, or restraining them. This type of abuse can result in bruises, broken bones, or other physical injuries.
• Neglect – Neglect occurs when a caregiver fails to provide adequate care for a resident, such as failing to provide food, water, clothing, shelter, or medical care. Neglect can also include failing to assist with activities of daily living, such as bathing or grooming, which can lead to physical decline and decreased quality of life.
• Emotional abuse – Emotional abuse involves causing psychological harm to a resident, such as through humiliation, isolation, or threats. Emotional abuse can cause fear, anxiety, and depression.
• Sexual abuse – Sexual abuse is any form of non-consensual sexual contact, including touching, fondling, or sexual assault.
• Financial abuse – Financial abuse involves the misuse or exploitation of a resident’s financial resources, such as stealing money or using a resident’s credit cards or bank accounts without their permission.
• Restraint – Unlawful restraint involves the use of physical or chemical restraints to restrict a resident’s movements or freedoms. Restraints should only be used as a last resort, and only when necessary for the resident’s safety and well-being.

Even with these definitions and laws in place, it can still be difficult to actually witness abuse or neglect happening in a nursing home. This is complicated by the fact that many elderly residents and other dependent adults have trouble remembering what happened to them or may be in a diminished physical condition where they can’t communicate regarding the treatment they’re receiving.

At the same time, there are always indicators of abuse. However, it’s usually up to those that surround the resident–family members, loved ones, and other residents–to be vigilant and speak up once they suspect abuse.

Once you’re able to pin down the abuse, the next step is actually filing a claim. In California, this means filing a lawsuit for damages.

What Are Some of the Common Defenses For Nursing Home Abuse by Insurance Companies?

At its core, a nursing home abuse or neglect claim falls under the same category as any other injury claim. Thus, this means when you file a claim for damages against the nursing home, the actual entity responsible for paying any compensation to you will be the nursing home’s insurance company.

What this effectively means is that you won’t be dealing with the nursing home directly, but rather, you will have to satisfy the requirements of and negotiate with the insurance company that covers the nursing home. In that respect, it makes the claims process a bit easier. However, insurance companies are notoriously difficult to deal with, as their ultimate goal is to pay out as little money as possible to the victim. In a nursing home abuse claim, here are some of the more common defenses an insurance company will use:

• Lack of evidence – Usually, insurance companies try to argue that there is not enough evidence to prove that the abuse took place. This can sometimes be successful since it is often difficult to gather concrete proof of abuse. However, by providing medical records and other documentation, it’s fairly easy to counter.
• Lack of causation – In the context of nursing home abuse, the lack of causation refers to the difficulty in establishing a clear and direct link between a specific action or event and resulting harm or injury to a resident. This can be due to a number of factors, such as conflicting eyewitness accounts, a lack of physical evidence, or the inability of the victim to communicate effectively due to their physical or cognitive limitations.
• No liability – Insurance companies may argue that the nursing home is not liable for the abuse, either because the abuse was committed by an independent contractor rather than an employee, or because the abuse was not foreseeable or was not caused by the nursing home’s negligence.
• Statute of limitations – While there is a two-year statute of limitations in California to file a claim for nursing home abuse, insurance companies may argue that the claim was not brought forward within the time limit set and should therefore be dismissed. In order for a claim to be proper in California, it must be filed within two years of the injury that was caused by abuse or neglect. As long as your claim is filed on time, the nursing home’s insurance company cannot claim a statute of limitations as a defense.

It’s important to note that these defenses can be complex and vary based on the specific facts of each case. Still, working with our team of experienced lawyers can help you navigate the legal process and build a strong case for compensation. In a nursing home abuse claim, you can potentially recover the following:

• Medical expenses
• Pain and suffering
• Loss of enjoyment of life
• Loss of consortium
• Lost wages and earning capacity
• Property damage
• Punitive damages, in certain cases

As with any claim, the extent of what you can recover depends on the circumstances and facts of your particular case. However, by working with our team of experienced nursing home abuse lawyers, we can help make sure that your claim remains as strong as possible in the face of the insurance company’s tactics.

Contact Maison Law For a Free Consultation

At Maison Law, our experienced California nursing home abuse lawyers can help your elderly loved one through what can be a complex and challenging process of filing a claim for damages. Insurance companies have one goal: pay you as little money as possible. With our team on your side, we can make sure to counter any of the nursing home’s tactics to make sure you get the benefits and support you deserve.  Contact us today to schedule a free consultation to learn more.