Statute of Limitations Tolling in Elder Abuse Claims

As with all legal claims, regardless of the merits of a case it must be filed within the statutory period. In the context of nursing homes facing elder abuse claims, understanding which statute of limitations applies to the situation is especially important in successfully defending such claims. Furthermore, understanding the tolling of the statute of limitations period is important in assessing potential risk.

Statutory elder abuse claims must be raised within a two year period per Code of Civil Procedure section 335.1, which applies to all actions for assault, battery, injury, or death of an individual caused by the wrongful act or neglect or another. Despite the fact that a nursing facility may be responsible for elder abuse committed by its employees, it has been determined by the courts that this does not constitute professional negligence. Therefore, the three year statute of limitations that applies to professional negligence actions does not apply to nursing homes.

This distinction was made in Benan v. Superior Court. In Benan, the plaintiffs sued on behalf of their mother, alleging that nursing staff failed to provide care and intentionally neglected her just before her death. Numerous elder abuse claims were alleged under Welfare and Institutions Code. At trial, the court ruled that the elder abuse actions were barred by the three year statute of limitations period applying to professional negligence claims pursuant to Code of Civil Procedure section 340.5. The court of appeal disagreed. The court of appeal noted that elder abuse claims alleging egregious conduct and seeking heightened remedies are much different from professional negligence actions, and therefore warrant different treatment. The court held that due to the nature of these claims and the need to protect nursing homes from the potential for extended liability for such serious claims, the proper statute of limitations was the two year period.

However, despite the Court’s application of the two year period in an attempt to protect nursing homes, nursing homes should be aware of the impacts that a plaintiff’s mental state and capacity can have on this rather short statute of limitations period. Pursuant to Code of Civil Procedure section 352, if a plaintiff is insane at the time a cause of action accrues, the statutory limitations period does not commence until the disability ends.

The critical issue in Benan was not the statutory period, but the tolling of the statute of limitations due to the victim’s insanity.  Under Code of Civil Procedure section 352, the period may be tolled during the plaintiff’s period of insanity. The court found that actions on behalf of elders who are insane within the meaning of the code would be promoted by the application of these two statutes used in conjunction. Because in Benan the plaintiff’s insanity continued until her death, and the complaint was filed only one year later, it was held that it was timely filed.

Nursing homes should be aware of the tolling period provided under section 352, which can potentially result in indefinite tolling for insane plaintiffs. As in Benan, the causes of action were tolled until her death. Therefore, nursing homes are at risk for liability for two years beyond the death of any patient whose causes of action are tolled due to their own insanity. While this may appear to contradict the intent of the Court in Benan, it is only a risk in cases where capacity is at issue. Furthermore, once it can be demonstrated that a plaintiff’s insanity ended and capacity was regained, the statute of limitations will recommence.

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