California Elder Law Attorney Blog

The difficulty in distinguishing between "neglect" and "professional negligence" lies in the fact that some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care. When, for example, a nursing home allows a patient to suffer malnutrition,most defendants appear to argue that this was "professional negligence," the inability of nursing staff to prescribe or execute a plan of furnishing sufficient nutrition to someone too infirm to attend to that need herself. But such omission is also unquestionably "neglect.

Section 15657 of the California Welfare and Institutions Code provides the way out of this ambiguity: if the neglect is "reckless," or done with "oppression, fraud or malice," then the action falls within the scope of section 15657 and as such cannot be considered simply "based on ... professional negligence" within the meaning of section 15657.2. of the California Welare and Instutions Code. The use of such language in section 15657, and the explicit exclusion of "professional negligence" in section 15657.2, make clear the California Elder Abuse Act's goal was to provide heightened remedies for, as stated in the legislative history, "acts of egregious abuse" against elder and dependent adults (Sen.3d reading analysis, Sen. Bill No. 679 (1991-1992 Reg. Sess.) as amended Sept. 10, 1991, p. 2), while allowing acts of negligence in the rendition of medical services to elder and dependent adults to be governed by laws specifically applicable to such negligence. That only these egregious acts were intended to be sanctioned under section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened "clear and convincing evidence" standard.