Can You Sue for Elder Abuse? Who Can Sue and Who Pays
Yes, you can sue for elder abuse. Who can bring the case, which caregivers, agencies and facilities can be sued, the evidence that matters, and state remedies.
Yes, you can sue for elder abuse. The older adult can file the elder abuse lawsuit, or a guardian, conservator or agent under a power of attorney can file it for them. After a death, the estate and the family can bring claims. The suit can name the person who caused the harm and the home care agency, nursing home or other employer behind that person.
Some states add extra remedies. California and Florida, for example, let courts award attorney fees in elder abuse cases. If someone is in danger now, call 911, then report the abuse to Adult Protective Services (APS).
Who Can Sue and Be Sued for Elder Abuse
An older adult harmed by abuse or neglect can sue for damages in civil court. After a death, two kinds of claims remain.
The personal representative of the estate brings a survival claim for losses the older adult suffered before death. Family members bring a wrongful death claim. Who may file varies by state.
Three kinds of defendant can be named:
- The person who did it. This is the aide, staff member or other person who abused or neglected the older adult, or who took the older adult's money.
- The employer, for the worker's negligence. Under vicarious liability (respondeat superior), an employer is generally liable for employee negligence within the scope of the job.
- The employer, for its own negligence. A home care agency or nursing home can be directly liable for negligent hiring, such as skipping a background check. It can also be liable for negligent training, supervision or retention of a worker it knew or should have known was unfit.
Worker status can change who pays. A caregiver placed by a referral registry may be an independent contractor, and the rules on who is liable for that caregiver vary by state. The guide to home care agency negligence covers agency claims in more detail.
Licensing also matters. Each state sets its own home care licensing rules, and some states do not license non-medical home care at all. An agency that operates without a required license violates state law, and that violation can be used as evidence in a negligence case. An unlicensed operator may also lack liability insurance, which can make a judgment harder to collect.
Medical harm can follow different rules. If the harm came from a licensed provider's medical judgment, such as a nursing or medication decision, the state's malpractice rules may apply. Those rules can add expert requirements, damage caps and different deadlines. The guide to medical malpractice claims covers that route.
Types of Elder Abuse Claims
Elder abuse includes physical abuse, emotional or psychological abuse, sexual abuse, neglect, abandonment and financial exploitation. Neglect means a caregiver failed to provide food, water, hygiene, medication, supervision or medical care. Each type of claim has its own likely defendants.
| Claim Type | What It Can Look Like | Who May Be Sued | Related Guide |
|---|---|---|---|
| Nursing home neglect or abandonment | Bedsores, unexplained falls or fractures, dehydration, weight loss, poor hygiene, medication errors, untreated infections | The nursing home and the staff involved | Nursing home neglect lawsuits |
| Neglect by a home care aide | Missed supervision, a fall at home, missed meals or medication reminders | The aide and the home care agency, depending on worker status | Home care agency negligence |
| Physical, emotional or sexual abuse | Physical, psychological or sexual mistreatment by a caregiver or other person | The abuser, plus an employer through vicarious or direct liability | How to report elder abuse |
| Financial exploitation | Forged checks, unauthorized transfers, new account owners, misuse of a power of attorney, scams | The person who took the money, including an agent under a power of attorney | Elder financial abuse |
| Medical errors by licensed staff | Harmful nursing care or medication decisions by licensed providers | The provider and its employer, possibly under malpractice rules | Medical malpractice |
| Death from abuse or neglect | A death caused by any of the harms above | The same defendants, through survival and wrongful death claims | Wrongful death claims |
Nursing homes that take Medicare or Medicaid must meet federal rules in 42 C.F.R. Part 483. Those rules require the facility to prevent pressure ulcers unless clinically unavoidable. They also require the facility to keep residents free from abuse and neglect (42 C.F.R. § 483.12). In many states, breaking a safety rule meant to protect residents can be evidence of a breach of duty.
Home health means skilled care, such as nursing or therapy, usually ordered by a doctor. Home care means non-medical help such as bathing, meals and supervision. That difference can affect whether an elder neglect lawsuit is ordinary negligence or malpractice.
Evidence That Matters in an Elder Abuse Case
A negligence claim for elder abuse needs proof of four elements: a duty of care, a breach of that duty, causation and damages. The records below commonly matter:
- Photos of injuries and living conditions
- Medical and hospital records
- The agency's or facility's care plan, plus visit or shift logs
- Medication records and incident reports
- APS or police reports
- State inspection or licensing findings
- Texts and emails
- Bank records, for financial abuse
- Names of witnesses
For a Medicare- or Medicaid-certified nursing home, inspection results and deficiency citations are published on Medicare's Care Compare. Print or save the page.
Medical claims need more. Almost every malpractice case needs a qualified medical expert to testify about the standard of care and causation.
Steps from Report to Lawsuit
To sue for elder abuse, report the abuse first, then preserve evidence, gather records and talk to a lawyer before the filing deadline.
- Call 911 if someone is in immediate danger. Get the older adult safe before anything else.
- Report to APS. Every state has an APS program, usually run by county or state social services. Most states let you report without giving your name. The Eldercare Locator (1-800-677-1116) connects callers to local agencies, including APS.
- Contact the ombudsman for a facility. Every state has a Long-Term Care Ombudsman program for nursing home and assisted living residents. The directory of state ombudsmen lists each program.
- Report money taken. Tell APS, local police and the bank or credit union. For fraud, call the U.S. Department of Justice National Elder Fraud Hotline at 1-833-FRAUD-11 (1-833-372-8311). Report internet fraud to the FBI's Internet Crime Complaint Center.
- Preserve evidence. Take photos, save texts and emails, and write down the names of witnesses.
- Request records. Ask for medical records, the care plan, shift logs, medication records and incident reports.
- Check admission papers for arbitration. A nursing home that takes Medicare or Medicaid cannot require an arbitration agreement as a condition of admission. A resident can rescind a signed agreement within 30 calendar days. Agreements signed under older terms, or with an assisted living facility, may still be enforced, depending on the document and state law.
- Talk to a lawyer before the deadline. A lawyer can tell you which claims fit and when each one must be filed.
Filing deadlines vary by state and by claim. For wrongful death, the deadline from the date of death is one year in Tennessee, two years in California, Texas and New York, and three years in Massachusetts and Minnesota. These deadlines can change, so confirm the current deadline for your state with a lawyer.
Some claims have shorter or different deadlines. A claim against a government body may need a notice of claim within months. A claim involving a federal employee needs an administrative claim within two years after it accrues. The guide on the wrongful death statute of limitations explains how these clocks run.
Malpractice claims can add a pre-suit step. California requires 90 days' notice of intent to sue a health care provider. Texas requires an expert report within 120 days after each defendant's original answer is filed. For the stages of a civil case after that, read how to file a lawsuit.
State Laws with Extra Remedies
Some states give elder abuse plaintiffs remedies beyond ordinary negligence law, and California and Florida are two examples. Those remedies can change who pays the lawyer and what damages survive a death.
California's Elder Abuse and Dependent Adult Civil Protection Act (Cal. Welf. & Inst. Code § 15600 and following) defines an elder as a California resident age 65 or older. The act sets conditions for its fee and damages remedies. For physical abuse or neglect, the plaintiff must prove the abuse by clear and convincing evidence.
The plaintiff must also show the defendant acted with recklessness, oppression, fraud or malice. If the plaintiff does, the court awards reasonable attorney fees and costs under § 15657. The same section lifts the limit on pain-and-suffering damages that normally applies after a victim dies.
Financial abuse has a lower bar. For financial abuse under § 15610.30, attorney fees are awarded on a preponderance of the evidence (§ 15657.5). The guide to elder financial abuse covers those claims.
Florida lets a vulnerable adult who was abused, neglected or exploited sue for damages, with attorney fees available (Fla. Stat. § 415.1111). Florida nursing home residents also have a separate statutory claim for violations of residents' rights (Fla. Stat. § 400.023).
Other states differ. In a state without an elder-specific statute, the claim can still rest on negligence, fraud, breach of fiduciary duty or wrongful death law. Ask a lawyer which remedies apply in your state.
When the Older Adult Has Died
When an older adult dies from abuse or neglect, the estate can bring a survival action and the family can bring a wrongful death claim. The two claims cover different losses and pay different people.
A survival action is the older adult's own claim, brought by the estate's personal representative. It covers losses before death, such as medical bills, and in some states the person's pain and suffering. Survival money goes to the estate, where creditors can reach it, and it passes under the will or intestacy.
A wrongful death claim pays the family members the state's statute names. Damages commonly include lost financial support, household services, medical and funeral costs, and in many states loss of companionship. Some states limit recovery to economic losses. New York is one.
A wrongful death case is separate from any criminal case. It can go forward whether or not anyone is charged, and it usually uses the lower preponderance-of-the-evidence standard. The survival action vs wrongful death comparison sets the two claims side by side, and the wrongful death guide covers who may file in California, Texas and New York.
If a doctor's or nurse's decision caused the death, read wrongful death vs medical malpractice. No official national database tracks wrongful death settlement amounts, so any average is an estimate. The page on wrongful death settlement amounts lists what moves the value.
Taxes depend on the type of damages. Compensatory damages for physical injury or wrongful death are generally excluded from federal income tax. Punitive damages and interest are generally taxable. IRS Publication 4345 and the guide on whether settlements are taxable give the details.
Paying for a Lawyer
Lawyers who handle elder abuse, wrongful death and malpractice cases usually work on a contingency fee. The lawyer takes a percentage of the recovery, with no fee if there is no recovery. The percentage is set in a written fee agreement and can be negotiated.
Case costs are separate from the fee. Filing fees, medical records, expert witnesses and depositions all cost money. Ask whether costs come out before or after the fee is calculated, and whether you owe costs if the case is lost. The contingency fee guide covers these fees.
Some states limit fees. Florida's bar rules set standard maximum fees for personal injury and wrongful death cases. The cap is 33 1/3% of a recovery up to $1 million if the case settles before the defendant answers or the time to answer runs out. After that point, the cap is 40% up to $1 million, with lower percentages above that amount.
On a $1 million recovery, that works out to about $333,333 at the early stage and $400,000 later. Malpractice fees can be capped too. California allows 25% before a lawsuit is filed and 33% after.
Pick the right kind of lawyer. An elder law attorney usually handles wills, trusts, Medicaid eligibility, powers of attorney and guardianship. An elder abuse or nursing home abuse lawyer is a litigator who sues for damages, and some firms do both. The guide to hiring an elder abuse lawyer covers the differences.
Ask each lawyer these questions:
- How many cases like this have you handled?
- Who will work on the case?
- What is the fee percentage, and how are costs handled?
- Will you file suit if the case does not settle?
- How will you keep the family updated?
You can describe what happened and get matched with a lawyer who handles elder abuse cases, free and with no obligation to hire.
Frequently Asked Questions
Can you sue for elder abuse?
Yes. An older adult can sue for abuse, neglect or financial exploitation, or a guardian, conservator or agent under a power of attorney can sue on the older adult's behalf. After a death, the estate brings a survival claim and the family brings a wrongful death claim, under state rules. The suit can name the abuser and the agency or facility that employed or supervised the abuser.
What proof is needed for elder abuse?
A negligence claim needs proof of a duty of care, a breach, causation and damages. Common evidence includes photos, medical records, care plans, shift logs, medication records, incident reports, APS or police reports and inspection findings. Bank records matter for financial abuse. California's fee award requires proving physical abuse or neglect by clear and convincing evidence and showing recklessness, oppression, fraud or malice.
What are two signs of financial abuse?
Forged checks and unauthorized transfers from an older adult's accounts are two signs of financial exploitation. A new account owner or misuse of a power of attorney is another. Report it to APS, local police and the bank or credit union.
Can you sue your parents for financial abuse?
Yes, a person can sue a relative, including a parent, to recover money or property the relative took. Theft by a relative is one form of financial exploitation. If the money belonged to your parent, the claim belongs to that parent, a guardian or agent acting for that parent, or the estate after death. Claims can include conversion, fraud, breach of fiduciary duty and undue influence.
What is self-neglect in APS?
Ask your local APS office how it handles a report about an older adult who may not be meeting their own basic needs. Every state has an APS program, usually run by county or state social services, and the Eldercare Locator (1-800-677-1116) connects callers to local agencies, including APS. A neglect lawsuit is different: it needs a caregiver who failed to provide food, water, hygiene, medication, supervision or medical care.
What happens when you report elder abuse?
APS investigates reports of abuse, neglect and exploitation of older and dependent adults. Most states let you report without giving your name, and many states make health care workers mandated reporters. An APS or police report can later serve as evidence in a lawsuit. If someone is in immediate danger, call 911 first.
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