CACI 3103 Neglect—Essential Factual Elements (Welf. & Inst. Code, § 15610.57)
California Civil Jury Instructions CACI
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:]
[assisting in personal hygiene or in the provision of food, clothing, or shelter;]
[providing medical care for physical and mental health needs;]
[protecting [name of plaintiff/decedent] from health and safety hazards;]
[preventing malnutrition or dehydration;]
[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
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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.’ 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. 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, 1348−1349 [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.)