Wrongful Death in a Care Facility
Wear Trial Law represents families whose loved one died from neglect or abuse in a nursing home, assisted living facility, or in-home care arrangement. How these claims are framed now determines what is recoverable: a temporary California law allowing recovery of a decedent’s pre-death suffering expired on January 1, 2026, but the Elder Abuse Act preserves that recovery where its heightened standard is met.
Two claims, and why the difference matters more than ever
A death in a facility generally produces two distinct claims.
The wrongful death claim belongs to the surviving family. It compensates them for their own losses — the loss of the decedent’s love, companionship, care, and support, along with economic losses.
The survival action belongs to the decedent’s estate. It carries the claim the decedent could have brought had they lived.
Historically, the survival action could not include the decedent’s own pain and suffering. California changed that temporarily under SB 447, then let the change expire. For survival actions filed on or after January 1, 2026, pre-death pain and suffering is generally no longer recoverable.
The Elder Abuse Act is the exception. Welfare and Institutions Code section 15657(b) provides that the section 377.34 limitation does not apply where the Act’s enhanced remedies are established — that is, where physical abuse or neglect and recklessness, oppression, fraud, or malice are proven by clear and convincing evidence. The recoverable amount remains subject to a statutory ceiling where the defendant is a health care provider.
The consequence is stark. A facility death pleaded as ordinary negligence may now yield nothing for what the person actually endured in their final weeks. The same facts proven as reckless neglect may.
What has to be proven
The Act’s enhanced remedies require clear and convincing evidence of physical abuse or neglect, plus recklessness, oppression, fraud, or malice. Where the defendant is a corporate employer, the standard for holding it responsible for punitive-type exposure generally requires proof that an officer, director, or managing agent authorized or ratified the conduct — which makes identifying who made the decision a central task.
Recklessness is proven through pattern, not a single error: repeated failures documented in the chart, staffing consistently below required levels, prior citations for the same deficiency, and complaints that produced no change.
When a facility cannot produce records
As of January 1, 2026, California law permits a court to apply a preponderance standard to the Act’s enhanced remedies where a skilled nursing facility, residential care facility for the elderly, or adult community care facility has committed spoliation of evidence. Where records that should exist are missing or altered, that is now a significant problem for the facility rather than for the family.
Arbitration agreements signed at admission
Most families sign a stack of paperwork at admission, often including an arbitration agreement. It is frequently challengeable.
California requires that a skilled nursing facility arbitration agreement be presented on a separate form and makes clear that admission cannot be conditioned on signing it. Agreements are also regularly signed by an adult child who lacked legal authority to bind the resident. And wrongful death claims belong to the heirs in their own right — heirs who never signed an arbitration agreement are generally not bound by it, even where the estate’s survival claim may be.
Do not conclude that a signature at admission ended the case.
What families should preserve
The complete medical record, requested in writing. Photographs taken during the final weeks. Your own notes about conversations with staff. Texts and emails with the facility. The admission packet, including the arbitration form. The names of staff on duty.
Call sooner than feels comfortable. Records are retained on fixed cycles, camera footage is overwritten quickly, and staff turnover in these facilities is high.
Free and confidential. Call 415-233-9688
Frequently Asked Questions
FAQ
Under the Elder Abuse Act’s standard, frequently yes — which is why case framing matters.
Generally the spouse, domestic partner, children, and certain other dependents or heirs.
Often challengeable, and heirs who never signed are generally not bound as to their own claims.
That is common in facility deaths and does not resolve whether neglect contributed.
Generally two years, but public facilities carry much shorter deadlines. Call promptly.
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