Report Title:

Elder Abuse; Neglect; Civil Remedies

Description:

Authorizes the attorney general to seek civil penalties for abuse or neglect of a dependent elder; provides enhanced civil remedies for prevailing parties in cases involving abuse or neglect of a dependent elder. (SD2)

THE SENATE

S.B. NO.

78

TWENTY-SECOND LEGISLATURE, 2003

S.D. 2

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO ELDER ABUSE.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The purpose of this Act is to authorize the attorney general to seek civil penalties in dependent elder abuse cases, and to provide for enhanced civil remedies for prevailing parties in private lawsuits arising from the abuse or neglect of a dependent elder.

SECTION 2. Chapter 28, Hawaii Revised Statutes, is amended by adding a new section to part VI to be appropriately designated and to read as follows:

"§28- Dependent elder abuse; suits by the State; civil penalties. (a) The attorney general may bring a civil action on behalf of the State, against any person who commits abuse of a dependent elder, to prevent, restrain, or remedy such conduct. Any person against whom a civil judgment is entered as a result of a civil action brought by the State through the attorney general on a complaint alleging the person committed abuse against a dependent elder, shall be subject to pay a civil penalty of not less than $500 nor more than $1,000 for each day that the abuse occurred, and the costs of investigation. A civil penalty imposed under this section shall be in addition to civil remedies imposed under section 663-  , and all other remedies provided by law.

(b) The attorney general may intervene in any civil action brought under section 663-  , if the attorney general certifies that, in the opinion of the attorney general, the action is of general public importance. In the action, the State shall be entitled to the same relief as if the attorney general instituted the action under the provisions of this section.

(c) For the purposes of this section:

"Abuse" shall have the same meaning as in section 346-222 and shall include the definition of "neglect" set forth in section 663- (d).

"Dependent elder" means any person sixty-two years of age or older who, because of mental or physical impairment, is dependent upon another person, a care organization, or a care facility for personal health, safety, or welfare."

SECTION 3. Chapter 663, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§663- Dependent elder abuse; enhanced civil remedies. (a) A dependent elder or the guardian of a dependent elder who suffered abuse; or a person or organization acting on behalf of the dependent elder, with the consent of that person or that person's guardian; or the personal representative of the estate of the dependent elder who has died as a result of abuse may bring an action for damages against a caregiver who committed the abuse in any circuit court of the State. A party who prevails in any such action shall be entitled to recover actual damages, including noneconomic damages; reasonable attorney's fees; and costs of the action, including, but not limited to, reasonable fees for a guardian, guardian ad litem, and experts, if any, that may be necessary to the litigation of a claim brought under this section.

(b) If a caregiver commits abuse which is directed toward, targets, injures, or results in the death of a dependent elder under the person's care, a court may award to the prevailing party, in addition to any other civil penalty, an enhanced civil penalty, not to exceed threefold actual damages. In determining the amount, if any, of the enhanced civil penalty under this section, the court shall consider the following:

(1) Whether the caregiver's conduct was in wilful disregard of the rights of the dependent elder;

(2) Whether the caregiver knew or should have known that the caregiver's conduct was directed toward or targeted a dependent elder under the caregiver's care;

(3) The extent of injury, loss, or damages suffered by the dependent elder; and

(4) Any other factors the court deems appropriate.

(c) The civil remedies under this section shall be in addition to civil penalties imposed under section 28- , and all other remedies provided by law.

(d) For the purposes of this section:

"Abuse" shall have the same meaning as in section 346-222 and includes the definition of "neglect" set forth hereafter.

"Caregiver" means any person who has the care, custody, or control of, or who stands in a position of trust with, a dependent elder, including, but not limited to, owners, operators, employees, or staff of: hospitals; hospices; adult residential care homes; developmentally disabled domicilliary homes; developmentally disabled adult foster homes; intermediate care facilities; skilled nursing facilities; special treatment facilities; assisted living facilities; adult foster family homes; adult day health care centers and adult day care programs; independent living centers; long-term care facilities; community care facilities for the elderly; respite care facilities; foster homes; and private residences.

"Dependent elder" means any person sixty-two years of age or older who, because of mental or physical impairment, is dependent upon another person, a care organization, or a care facility for personal health, safety, or welfare.

"Neglect" means the failure to exercise that degree of care toward a dependent elder which a reasonable person with the responsibility of a caregiver would exercise. Neglect includes, but is not limited to:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter;

(2) Failure to provide health care for physical and mental health needs; provided that no person shall be deemed neglected or abused solely because the person voluntarily relies on treatment by spiritual means through prayer alone, or on alternative therapeutic remedies;

(3) Failure to prevent malnutrition or dehydration; or

(4) Self-neglect, or the failure of a dependent elder to satisfy the needs specified in paragraphs (1) through (3), for oneself, as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.