Long Term
CARE
&
& Senior
Senior Housing
Housing Practice
Practice
WASHINGTON'S VULNERABLE ADULT STATUTE
Fall/Winter 2004-2005
By
Charles C. Huber
ters 26.44, 70.124, and 74.34 RCW contain different definitions for abandonment, abuse, exploitation, and neglect. The legislature finds that combining the sections of these chapters that pertain
to the protection of vulnerable adults would better serve this state’s population of vulnerable
adults. The purpose of chapter 74.34 RCW is to
provide the department and law enforcement
agencies with the authority to investigate complaints of abandonment, abuse, financial exploitation, or neglect of vulnerable adults and to provide protective services and legal remedies to protect these vulnerable adults.
There has been a recent increase in the number of
significant jury verdicts against long term care facilities and other similarly situated health care providers. For example,
in Conrad Ex Rel. Conrad v. Alderwood Manor, 119 Wn. App. 275, 78 P.
3d 177 (2003), a jury awarded over $4.75 million to the family of a 91
year old who died due to the nursing home’s alleged negligence.
There are many reasons for the increase in jury awards in long term
care cases. The population is aging. Jurors of the current generation
are more likely to be elderly or have elderly parents. There is also
probably an increasing “lottery” mentality among some jurors. However, there is no question that the Vulnerable Adult Statute is also
playing a significant role in raising both jury awards and defense costs
in long term care cases. Indeed, because of information available on
the internet, those contemplating suit against a Long Term Care provider have relatively easy access to quality indicators and recent survey results.
Thus, contrary to the claims of many plaintiffs’ attorneys, the Abuse
Statute was not intended to provide a mechanism for collecting
attorney’s fees in medical malpractice cases.
B. Definitions
As discussed below, this statute is a powerful tool in the hands of
enterprising plaintiffs’ attorneys. The statute authorizes both attorneys’ fees and litigation costs, including expert’s fees, to the successful
plaintiff. Because of this, and because of the increasingly large awards,
some of the more prominent plaintiffs’ attorneys are now beginning
to focus their practice on both long term care providers and others
who provide health care to the elderly.
A.
The Abuse Statute provides definitions set out in RCW 74.34.020.
First, one must ascertain who is considered a “vulnerable adult” for
the purposes of the Abuse Statute. A “vulnerable adult” includes a
person:
(a) Sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself; or
(b) Found incapacitated under chapter 11.88 RCW;
or
(c) Who has a developmental disability as defined
under RCW 71.127 RCW; or
(d) Admitted to any facility; or
(e) Receiving services from home health, hospice,
or home care agencies licensed or required to be
licensed under chapter 70.127 RCW; or
(f) Receiving services from an individual provider.
Statutory Purpose
Washington’s Abuse of Vulnerable Adult Statute (“Abuse Statute”),
RCW 74.34 et seq., was first passed in 1984 as a response to several
reports on elder abuse made in 1981 by the United States House of
Representatives. Jill C. Skabronski, Elder Abuse: Washington’s Response
to a Growing Epidemic, 31 Gonz. L. Rev. 627, 633 (1996). However, in
1999, the Abuse Statute was amended and the legislature made specific findings and announced its intent to protect vulnerable adults
from abuse, neglect, financial exploitation and abandonment. Laws
of 1999, ch. 176, § 1. The legislative history describes the purpose of
this statute as follows:
RCW 74.34.020(13).
The legislature finds that the provisions for the
protection of vulnerable adults found in Chap1
(2) It is the intent of the legislature, however, that
where there is a dispute about the care or treatment of a vulnerable adult, the parties should use
the least formal means available to try to resolve
the dispute. Where feasible, parties are encouraged but not mandated to employ direct discussion with the health care provider, use the longterm care ombudsman or other intermediaries,
and, when necessary recourse through licensing
or other regulatory authorities.
From the civil litigation standpoint, perhaps the next most important
terms are those that will support a private cause of action. As discussed below, RCW 74.34.200 provides for a cause of action for damages by vulnerable adults or on their behalf in cases of:
(1) “abandonment,”
(2) “abuse,”
(3) “financial exploitation,” or
(4) “neglect.”
“Abandonment” is “action or inaction” which leaves a vulnerable adult
without the means or ability to obtain necessary food, clothing, shelter, or health care.
(3) In an action brought under this section, a prevailing plaintiff shall be awarded his or her actual
damages, together with the costs of suit, including a reasonable attorney’s fee. The term “costs”
includes, but is not limited to, the reasonable fees
for a guardian, guardian ad litem and experts, if
any, that may be necessary to the litigation of a
claim brought under this section.
“Abuse” is willful action or inaction that inflicts injury. It can include
sexual, mental and physical abuse of a vulnerable adult.
“Financial exploitation” is the illegal or improper use of a vulnerable
adult’s income or resources. It can include theft or embezzling the
money or property of a vulnerable adult.
Conrad demonstrates that circumstantial evidence that the nursing
home proximately caused the resident’s death is sufficient to prove
common law negligence and neglect under the Abuse Statute and can
support a significant award of damages and costs. In Conrad, the
resident suffered a femur fracture that severely compounded, requiring amputation of her lower leg. Later, the resident fell out of her
wheelchair and fractured her neck after the nursing home aide forgot
to replace the armrest. The cervical collar required to treat the injury
caused skin ulcerations. The resident died of pneumonia seven months
later.
Finally, “neglect” is defined by this statute as either:
(a) a pattern of conduct or inaction by a person
or entity with a duty of care to provide the good
and services that maintain physical or mental
health of a vulnerable adult, or that avoids or prevents physical or mental harm or pain to a vulnerable adult; or
The nursing home argued that it was not responsible for the femur
fracture that directly and indirectly caused other injuries, including
death. A jury rejected the nursing home’s alternate cause scenarios
for the resident’s broken leg and accepted the plaintiff ’s scenario, although no one witnessed the resident break her leg. The resident’s
expert medical witness testified that, based on the stage of the resident’s
osteoporosis, her fracture probably occurred by someone catching
her leg in the bed rails or dropping her on the floor during a transfer.
The resident’s nursing home standard of care expert agreed, and even
the nursing home’s expert witness conceded that the leg fracture could
have occurred by negligence. The resident’s family members disputed
that the resident’s leg was broken from the family’s use of a deficient
wheelchair because the wheelchair problem was fixed before the date
of the resident’s injury. The jury found in favor of the plaintiff.
(b) an act or omission that demonstrates a serious
disregard of consequences of such a magnitude
as to constitute a clear and present danger to the
vulnerable adult’s health, welfare or safety.
Neglect can include failure to provide food, water, medical
treatment, or hygienic needs or physical injury as a result of
failure to provide the aforementioned necessities.
C.
Civil Action
RCW 74.34.200 provides a vulnerable adult with an “additional remedy” to those already existing under Washington statutory and case
law. This statute specifically provides in pertinent part:
The Abuse Statute allows for a jury to award damages, attorney’s fees,
and costs to the prevailing plaintiff only. Accordingly, the jury in
Conrad awarded the plaintiff $4.755 million in damages, $239,000 in
attorneys’ fees, and $39,781 in costs. The court did not disturb the
jury’s award of damages although the defendant adamantly sought to
prove that the damages were excessive and punitive. The court reasoned that the verdict was perhaps surprising, but was within the range
of the evidence and not punitive.
74.34.200 Abandonment, abuse, financial exploitation, or neglect of a vulnerable adult –
Cause of action for damages – Legislative
intent. (1) in addition to other remedies available
under the law, a vulnerable adult who has been
subject to abandonment, abuse, financial exploitation or neglect . . . shall have a cause of action
for damages on account of his or her injuries, pain
and suffering, and loss of property sustained
thereby . . .
2
D.
Survival Of The Civil Action
was not a statutory beneficiary under the general provisions of Washington State’s Wrongful Death Statute, because he was not a dependent of the decedent. Thus, Shumacher was precluded from recovering under the Abuse Statute, because he was not a statutory beneficiary as interpreted by the court.
Should the plaintiff die, the survival of this cause of action is limited
to the decedent’s spouse, children, or the decedent’s dependent parents or siblings. The Abuse Statute defines that the surviving spouse,
children or other heirs as defined by RCW 4.20 (Wrongful Death Statute) may have the right to initiate or maintain the action. The pertinent parts of the statutes provide:
CONCLUSION
74.34.210 Order for protection or action for
damages—Standing—Jurisdiction. A petition
of an order for protection or an action for damages under this chapter may be brought by the plaintiff, or where necessary, by his or her family members and/or guardian or legal fiduciary, or as otherwise provided under this chapter. The death of
the plaintiff shall not deprive the court of jurisdiction over a petition or claim brought under this
chapter. Upon petition, after the death of the vulnerable person, the right to initiate or maintain the
action shall be transferred to the executor or administrator of the deceased, for the benefit of the
surviving spouse, child or children, or other heirs
set forth in chapter 4.20 RCW. (emphasis added).
Overall, a trend is emerging in the rising number of significant jury
verdicts against long-term care facilities and other health care providers. The Abuse Statute, an aging population, and recent court precedence seem to support this trend. However, limits have been set as to
who may bring a cause of action when the plaintiff has died.
The statutory purpose of the Abuse Statute is to protect “vulnerable
adults” from abandonment, abuse, financial exploitation, and neglect.
Since the 1999 Amendments to the Abuse Statute, it is playing an
increasing role in the rising jury awards in long-term care cases. Additionally, plaintiffs seem to be accruing a growing amount of sympathetic jurors, because the population is aging and jurors are increasingly older of have elderly parents.
Also, Conrad has set a precedent that discourages courts from disturbing seemingly excessive and punitive verdicts. What should be considered windfall or punitive awards are now transforming into justified damages.
4.20.020. Wrongful death—Beneficiaries of
action. Every such action shall be for the benefit
of the wife, husband, child or children, including
stepchildren, of the person whose death shall have
been caused. If there be no wife or husband or
such child or children, such action may be maintained for the benefit of the parents, sisters or
brothers, who may be dependent upon the deceased
person for support, and who are resident within
the United States at the time of his death. (emphasis added).
Finally, the “additional remedy” provided by the Abuse Statute may
survive the death of the plaintiff only if the personal representative
of the plaintiff ’s estate is a spouse, child, or dependent heir of the
decedent. The Shumacher court interpreted the Abuse Statute to define the term “other heirs” consistently with the Wrongful Death Statute. The Wrongful Death Statute provides that when a decedent has
no surviving spouse or children, then “other heirs” such as parents or
siblings may bring a cause of action for the decedent so long as the
heir was dependent on the decedent.
The Wrongful Death Statute defines “other heirs” as parents or siblings so long as they are dependents of the decedent. For example, in
Shumacher v. Williams, 107 Wn. App. 793, 28 P.3d 792 (2001), Shumacher,
following the death of his disabled sister as a result of hot water
burns, sued the adult boarding home where his sister was a resident,
alleging claims upon the Abuse Statute. The court held that Shumacher
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YOUR
PACIFIC NORTHWEST
LAW FIRM R
Charles C. Huber is a partner in the Seattle office of Lane Powell
Spears Lubersky LLP. Charles' trial practice includes the defense of
health care providers and major personal injury litigation. He can be
reached at 206.223.7265 or at huberc@lanepowell.com.
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