Zachary N. Zaharoff
Partner
Cotchett, Pitre & McCarthy, LLP
Specializes in Business Fraud, Class Actions, Elder Abuse, and Personal Injury
Email: zzaharoff@cpmlegal.com
Zachary spent over five years as a litigation associate in Big Law before moving to CPM.
In 2011, the editorial board of the Sacramento Bee
published findings from a review of nearly 150 cases of alleged chart
falsification in California assisted care facilities. Based on allegations made
in state citations or in lawsuits spanning more than two decades, the article
concluded that "patients and their families often are the victims of records
fraud in California nursing homes." See Lundstrom, Marjie, "Falsified
Patient Records Are Untold Story of
California Nursing Home Care" The Sacramento Bee, Oct. 8, 2011https://www.sacbee.com/news/investigations/article2573412.html.
The article chronicles a number of outrageous examples of evidence
falsification intended to conceal abuse or neglect, such as records claiming a
patient was given physical therapy by nurse assistants who were not on duty
those days, sworn testimony from administrators that they were ordered to
change intake records to make it look like a patient had a preexisting
condition, and examples of charts claiming residents completed activities of
daily living after they had already died. The Bee investigation also found that
state enforcement of charting violations was spotty, and that penalties for
demonstrable violations did little to deter bad actors.
The Elder Abuse and Dependent Adult Civil Protection Act
(EADACPA) is an important tool in combating abuse and neglect at elder care
facilities and provides enhanced remedies such as attorney fees and punitive
damages for egregious acts. However, to be eligible for these enhanced
remedies, victims must prove by clear and convincing evidence that the
facility's conduct was reckless or worse and that a managing agent of the
facility knew or should have known about the abuse or neglect. The integrity of
the documentary evidence in these cases is crucial: Elderly victims are often
deceased or have cognitive impairment, and facility staff and administrators
are often unwilling to testify due to concerns about their job security.
While courts can sanction elder abuse defendants for
destruction or manipulation of records, the most common sanction is an adverse
inference jury instruction at trial. Judges have discretion to tailor
appropriate instructions, but the instructions often provide merely that jurors
may infer that destroyed/manipulated evidence was unfavorable to the defendant.
See CACI 204. While such an instruction, coupled with evidence of
intentional destruction or manipulation, can be helpful in persuading a jury
that abuse or neglect was "highly probable," it is often not
enough--particularly where the jury will never know what destroyed records
contained.
Lawmakers and advocates in California have recognized this
problem for years. In 2017 and 2024, the Legislature passed bills attempting to
revise EADACPA to lower the evidentiary standard from clear and convincing
evidence to preponderance of evidence where a court finds spoliation. Both
bills were met with governors' vetoes, though Gov. Newsom signaled that he was
open to signing a bill if it made application of the lower evidentiary standard
discretionary rather than mandatory. In October 2025, the Legislature passed a bill (AB 251) with
that revision and Gov. Newsom signed it into law.
This revision to EADACPA is now in effect and provides
that "the court may determine the standard of evidence in any claim for
remedies sought under Section 15657 to be a preponderance of the evidence
[rather than clear and convincing] under either of the following circumstances:
(A) The plaintiff prevails on a discovery motion pursuant to subdivision
(b) of Section 2023.030 of the Code of Civil Procedure due to spoliation of
evidence by the defendant.; (B) A judge or arbitrator determines at any
point during litigation or arbitration that spoliation of evidence has been
committed by the defendant." The revised law also provides a definition of
spoliation, and provides factors for courts to consider in determining whether
spoliation has occurred, including whether evidence was destroyed "[p]rior to
the expiration of a legally required time period for holding the records," "[i]n
contravention of the party's written records retention policy[,]"
or "[a]fter receipt of a written directive to preserve relevant records[.]"
California has a rapidly increasing population of elderly
adults. A policy brief from the Public Policy Institute of California estimates
that by 2040, 22% of Californians will be 65 or older, up from 14% in 2020. The
65 and over population will increase by 59%, while the population aged 20-64
will remain largely unchanged and the population aged
0-17 will decrease by 24%. In 2025, the Office of the Attorney General
estimated that over 400,000 Californians live in licensed nursing homes,
residential care facilities for the elderly or other unlicensed assisted living
facilities. These numbers will continue increasing dramatically.
The EADACPA provides crucial protection for seniors and
dependent adults. It is more important than ever to ensure that seniors,
dependent adults and their families are given a fair shake in court when they
have suffered abuse or neglect. Given the prevalence of destruction and
manipulation of evidence in these cases, the changes to EADACPA provide a key
tool for ensuring that abuse and neglect is not swept under the rug and that
victims and their families can be afforded some measure of justice.