ELDER ABUSE CLAIMS

Holland v. Silverscreen Healthcare, 101 Cal. App. 5th 1125

Plaintiffs sued defendant Asistencia, a medical care facility, alleging four causes of action--three arising out of Asistencia’s negligence in caring for their adult son Skyler and one for wrongful death. Specific to the wrongful death cause of action, the complaint alleged that as a proximate result of Asistencia’s neglect, the parents “sustained the loss of the society, comfort, attention, and love of” Skyler. The trial court granted Asistencia’s motion to compel arbitration of the three negligence causes of action because the arbitration agreement complied with Code of Civ. Proc. Section 1295, but it concluded that the parents' wrongful death cause of action was not subject to arbitration because it was based upon neglect within the meaning of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) rather than medical malpractice. Accordingly, section 1295 and the holding in Ruiz v. Podolsky, 50 Cal.4th 838 (2010) did not apply. Asistencia appealed and the Court of Appeal reversed.

Plaintiffs asserted that the wrongful death claim was not arbitrable under Ruiz because it was one for dependent adult abuse, not professional negligence. Neglect can constitute abuse under the Elder Abuse Act and Skyler's parents could absolutely pursue a cause of action under the Elder Abuse Act on Skyler's behalf. But the law does not permit them to assert their own claim for neglect under the Elder Abuse Act. In other words, if the parents could not maintain a claim for abuse under the Elder Abuse Act in their own name, it made no sense for them to be able to pursue a claim for wrongful death based upon that same alleged abuse.