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On May 23, 2022, Governor Gavin Newsom signed AB35, legislation to modernize the system for awarding damages in medical malpractice cases in California.

The new legislation makes significant changes to the Medical Injury Compensation Reform Act (MICRA).

MICRA’s cap on non-economic damages for wrongful death has been raised from $250,000.00 to $500,000.00, but if the death was caused by elder abuse, there is no cap.

The Elder Abuse Dependent Adult Civil Protection Act (EADACPA) defines an elder as: Someone who is 65 years old or older, or a dependent adult, who is someone between 18 and 64 years that have certain mental or physical disabilities that keep him or her from being able to do normal activities to protect himself or herself. Elder or dependent adult abuse is “physical abuse, neglect, financial abuse, insolation, abduction, or other behavior that causes physical harm or mental suffering, or deprivation by a caregiver of things or services that the elder or dependent adult needs to avoid physical harm or mental suffering.” Welfare & Institutions Code § 15610.07

The legislature specifically recognized a wrongful death cause of action based upon elder abuse by enacting Welfare & Institutions Code § 15657.

If the heirs can prove an elder died as a result of elder abuse, Welfare & Institutions Code § 115647, subd (b), “the limitations imposed by § 377.34 of the Code of Civil Procedure will not apply.” (Emphasis added.)

When a healthcare provider is responsible for the death, this is a huge loophole for getting around the MICRA cap on non-economic damages, and even wrongful death statutes which deny recovery for pre-death pain and suffering, and limits to the amounts recoverable for non-economic damages.

The tort of elder abuse is separate and distinct from medical malpractice. Using legal remedies under EADAPRA may avoid caps on damages against medical care providers. Lattimore v. Dickey (2015) 239 Cal.App. 4th 959, 968.

The provisions of MICRA do not apply to elder abuse actions. Delaney v. Baker (1999) 20 Cal 4th 23, 34.

The Supreme Court of California distinguishes the concepts of elder abuse misconduct as distinct from medical malpractice. Smith v. Ben Bennet (2005) 133 Cal. App.45h 1507, 1512. (MICRA tolling provisions inapplicably to elder abuse actions.)

Benun v. Superior Court (2004) 123 Cal.App. 4th 113, 116 (MICRA statute of limitations does not apply.)

Elder abuse civil legislation also includes provisions for protection of elders and dependent adults through special Elder Abuse Protective Orders.

EADACPA actions have many advantages over ordinary medical malpractice cases – even against health care providers under certain circumstances. Wrongful death losses may be one of those instances where the injured victims have a much better legal remedy by using the elder abuse laws in circumstances when the injured party of decedent is defined as an elder or dependent adult.


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