For California Lawyers Only

The purpose of this page is to present information of special interest to lawyers who are handling, or thinking about handling civil actions for damages or other relief against skilled nursing or residential care facilities in California. Periodically, Mr. Balisok will add information concerning special problems faced by lawyers who litigate cases of abuse and neglect against these facilities for the elderly, including actions under the Elder Abuse Act.

Mr. Balisok receives several calls a week from lawyers throughout the state seeking answers to questions about litigation under the Elder Abuse Act. While Mr. Balisok tries to field as many of these telephone calls as he can, we have provided a Question Form at the bottom of this page so that lawyers who have questions can identify themselves and pose questions. Of course, Mr. Balisok would prefer to answer questions for lawyers who have taken cases for patients or their families, he will also answer questions from defense lawyers, if he can.

The Statute of Limitations Problem: As with many aspects of litigation under the Elder Abuse Act, there are special problems which may arise regarding the Statute of Limitation. There are two typical errors made by lawyers. First, the lawyer representing the family of a deceased, may erroneously calculate the statute of limitations to run one year from the date of death. Unfortunately, however, the statute may run sooner than that.

The typical case of abuse leading to death involves a period of misconduct "smeared out" over a period of time prior to the patient’s death. Certainly the wrongful death action is timely if filed within one year following death. But the "survival action," that is the action which the deceased relative could have filed for his or her personal injury had he or she lived, must be filed within one year from the date of the injury resulting from misconduct. The injury may be emotional (stemming from abandonment, starvation, etc.) or physical, such as the development of severe decubitus ulcers, or severe weight loss. If counsel waits until the one-year date following death, it is possible that the statute of limitations for the action on the pre-death pain and suffering, etc., will bar the action. The solution is to create a chronology of the misconduct and the injuries resulting from the misconduct, as best you can, in order to determine whether and when the statute of limitations will begin to operate to bar the action for pre-death pain and suffering.

There is more to the analysis, by operation of the general tolling provisions of California Code of Civil Procedure §352. That section tolls the statute of limitations for "insanity." However, mental incompetence satisfies the requirement for "insanity" under §352. Many of your cases will involve serious neglect and abuse of mentally incompetent patients, and the operation of §352 is the general rule, rather than the exception. The problem is that §352 does not apply to California Code of Civil Procedure §340.5 -- the statute of limitation applicable to cases of medical professional negligence. But the statute of limitation which appears to apply to theories other than negligence is §340, not 340.5. See Brown v. Bleiberg (1982) 32 Cal. 3d 426. Since §340 is subject to §352's general tolling provisions, if the injured party is or was mentally incompetent at all times following the misconduct and injury, the action is not barred during the life of that person.

Finally, if you proceed in a case where the defense of the statute of limitations can be legitimately (even if the defense is without merit), you must consider the effect that California Code of Civil Procedure §597.5 will have on your case. That section entitled a specified list of health care providers to insist upon bifurcation at trial of statute of limitation defense. Experience tells us to avoid allowing the defendants to seize control of the trial by trying their defense first. It is disruptive to the flow of Plaintiff’s case. The bifurcated defense can be eliminated by dismissing all defendants who are benefited by §597.5. Fortunately, it does not appear that nursing homes are among the list of defendants benefited by §597.5. The best argument to defeat the motion to bifurcate the statute of limitations defense is that since the factual question presented is whether the injured plaintiff (or decedent) was mentally incompetent, it will be necessary to review his or her medical condition, including the record of care and treatment at the nursing facility which is operated by the defendant. This record of care and treatment is likely lengthy, and that same record is at the heart of Plaintiff’s case in chief. In other words, bifurcation means duplicative presentation of facts and will waste, not conservation of judicial resources.

Please check this page periodically, as timely and informative information concerning actions under the Elder Abuse Act is added.

Information Form

If you would like us to get in touch with you regarding an elder law problem, or if you need more information, please fill out the form below completely.