California Elder Abuse Act remedies in nursing home neglect cases

By Michael Shemtoub, trial attorney, Beverly Law. Updated November 2026.

What “neglect” means under the Act

The Act defines neglect as the negligent failure of anyone “having the care or custody of an elder or a dependent adult” to use the care a reasonable person in a like position would use (Welf. & Inst. Code 15610.57). The statute lists examples:

• Failure to assist in personal hygiene, or in providing food, clothing or shelter
• Failure to provide medical care for physical and mental health needs
• Failure to protect from health and safety hazards
• Failure to prevent malnutrition or dehydration

Abuse under section 15610.07 includes neglect and also “the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” An elder is any California resident 65 or older (section 15610.27). A dependent adult is someone 18 to 64 with physical or mental limitations, and the term also covers anyone in that age range admitted as an inpatient to a 24-hour health facility (section 15610.23).

In Winn v. Pioneer Medical Group (2016), the California Supreme Court held that the Act does not apply unless the defendant “had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs” with the elder. The outpatient doctors in that case did not have that relationship, so the neglect claim failed. By contrast, the family in Covenant Care alleged that a nursing facility failed to give a resident proper nutrition, hydration and medication. A nursing home that houses, feeds and medicates a resident usually fits.

The higher bar: recklessness, oppression, fraud or malice

Ordinary negligence does not unlock the Act’s remedies. Section 15657 applies only when the defendant is found liable for neglect, physical abuse or abandonment and “has been guilty of recklessness, oppression, fraud, or malice” in committing it, proven by clear and convincing evidence.

In Delaney v. Baker (1999), the Supreme Court described recklessness as a “deliberate disregard” of the “high degree of probability” that an injury will occur. It is more than “inadvertence, incompetence, unskillfulness, or a failure to take precautions.” The other three categories involve intentional, willful or conscious wrongdoing of a despicable or injurious nature, as defined in Civil Code 3294(c). In Delaney, the jury found recklessness but not oppression or malice, and that was enough to support the fee award.

A new rule took effect January 1, 2026. Under section 15657.02, a court may apply the lower preponderance-of-the-evidence standard if a judge or arbitrator finds the defendant committed spoliation: intentionally altering, hiding or destroying records to keep them from being produced, in a way that materially harms the other side. The rule covers skilled nursing facilities, residential care facilities for the elderly and adult community care facilities, with some hospital-related exceptions.

What the Act adds to a neglect case

When the standard is met, these remedies are added to what the law already allows:

Most nursing homes are owned by companies, so the employer rule matters. Under Civil Code 3294(b), an employer answers for an employee’s conduct only if it knew in advance the employee was unfit and kept them on in conscious disregard of others’ rights or safety, authorized or ratified the conduct, or was itself guilty of oppression, fraud or malice. For a corporation, that must come from an officer, director or managing agent.

Pain and suffering after the resident dies

The general rule in Code of Civil Procedure 377.34(a) limits a deceased person’s claim to losses suffered before death and excludes “damages for pain, suffering, or disfigurement.” Subdivision (b) made an exception for actions filed on or after January 1, 2022, and before January 1, 2026. Survival claims filed since then are back under the general rule.

Section 15657(b) still lifts that rule. When reckless neglect is proven by clear and convincing evidence, the resident’s pain and suffering before death can be recovered. The award cannot exceed the amount allowed under Civil Code 3333.2(b). That subdivision sets $350,000 limits for medical malpractice injury cases, and subdivision (g) raises them by $40,000 each January 1 up to $750,000. How those figures apply to an elder abuse award is a question for your lawyer.

After the resident’s death, the claim is brought by the personal representative. If there is none, an heir, successor in interest or other interested person who meets the requirements of Code of Civil Procedure 377.32 may bring it (Welf. & Inst. Code 15657.3(d)). The family’s own wrongful death claim is separate. Our survival action FAQ explains the difference.

How MICRA does and does not apply

MICRA is the set of laws that limits medical malpractice claims. Section 15657.2, as quoted in Delaney, sends claims against a health care provider “based on the health care provider’s alleged professional negligence” to the professional negligence laws. The court held that reckless neglect under 15657 is not such a claim. Neglect, it explained, is the failure of those responsible for “the basic needs and comforts” of elders, “regardless of their professional standing, to carry out their custodial obligations.”

• Punitive damages. In Covenant Care v. Superior Court (2004), the court held that the pretrial motion required by Code of Civil Procedure 425.13 before seeking punitive damages from a health care provider does not apply to elder abuse claims.
• Filing deadline. In Benun v. Superior Court (2004), a Court of Appeal declined to apply MICRA’s deadline in section 340.5 to an elder abuse claim and called the two-year period in section 335.1 “facially applicable to elder abuse actions.”
• Where MICRA still matters. The 15657(b) limit on post-death pain and suffering borrows the MICRA figure in Civil Code 3333.2(b). Claims of professional negligence alone stay under MICRA’s rules and, as Winn notes, do not get the Act’s added remedies.

The records that prove reckless neglect

In Delaney, the resident developed stage III and IV pressure ulcers. The evidence included staff turnover and shortages, poor training, recordkeeping violations, her daughter’s repeated complaints, a citation for patient neglect shortly before she arrived and a class A citation after her death.

• State inspection records. The California Department of Public Health’s Cal Health Find lists complaints, self-reported incidents, enforcement actions and deficiencies. Our Cal Health Find guide shows how to search it.
• Citations. Under Health and Safety Code 1424, the state issues a class A citation when a violation puts residents in imminent danger of death or serious harm, or makes death or serious physical harm substantially probable. A class AA citation adds a finding that the violation was a substantial factor in a resident’s death.
• Staffing records. California requires most skilled nursing facilities to provide at least 3.5 direct care hours per patient day, including 2.4 hours from certified nurse assistants (Health and Safety Code 1276.65). Federal rules require facilities to submit payroll-based staffing data (42 CFR 483.70(p)).
• Care plans. A baseline care plan is due within 48 hours of admission, and the full person-centered plan, with measurable objectives and timeframes, within 7 days after the resident’s full assessment required by federal rules (42 CFR 483.21). Nursing notes, medication records and wound notes show whether that care was given.

A resident or representative can inspect records within 24 hours, excluding weekends and holidays, and get copies on two working days’ notice (42 CFR 483.10(g)(2)). Send a written demand to preserve records early. Under section 15657.02, a judge deciding spoliation considers whether records were destroyed after one.

Deadlines to know

One case may involve several claims with different clocks. Do not wait for a state investigation to finish before getting legal advice.

What this means for your case

1. Write down the dates of admission, injuries, hospital transfers and every complaint you made, and to whom.
2. Take photos of wounds and conditions when you can do so lawfully, and keep texts and emails with staff.
3. Request the chart and care plans in writing, and ask the facility in writing to preserve all records, including staffing and payroll data.
4. Look up the facility’s complaints and citations on Cal Health Find.
5. Report suspected abuse. Our guide on how to report nursing home abuse explains where to report it.
6. Talk to a lawyer before the two-year deadline gets close.

Beverly Law handles nursing home abuse and neglect cases in California. The consultation is free. Call (310) 552-6959. You owe no fees or costs unless we win.

Common questions

Related pages

Nursing home abuse lawyers in California · California personal injury attorneys · California wrongful death lawyer · Survival action vs. wrongful death claim · How to report nursing home abuse · How to look up a California nursing home on Cal Health Find

Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Last reviewed: November 10, 2026.