6 Trial Lawyer • Winter 2023 Faith Morse By Faith Morse OTLA Guardian I was in a hearing with a well-known defense attorney arguing about the claims I had made under Oregon Vulnerable Person Abuse Statute, ORS 124.100 et seq., in a case involving resident on resident sexual abuse in a memory care facility. I sued the memory care director personally under the statute for failing to stop the sexually aggressive resident in the weeks before he was found orally raping my client. Adult Protective Services (APS) investigated and found the facility documenting his sexually aggressive actions but doing nothing to stop him. It got so bad APS named the memory care director as an additional perpetrator in its final report. The defense counsel filed a motion for summary judgment on the “abuse of a vulnerable person” claims. During argument, I was bemused to hear the defense attorney claim that in 20 years of practice, not one plaintiff’s attorney had ever brought such an elder abuse claim — in part because I was in possession of orders ruling against that defense attorney on these very issues — but also because that argument appeared plausible on its face. It is accurate to say few plaintiff’s lawyers in Oregon use this statute, and it’s likely that many judges have never seen claims made under it. That needs to change. ORS 124.100 et seq. is a series of statutes intended to rein in serious cases of vulnerable person abuse by allowing harsh remedies — treble damages and attorney fees. As noted by the Court of Appeals in declining to read a heightened mens rea requirement into the treble damages provision, “the subject matter of the statute — the physical or financial abuse of vulnerable persons — suggests that the legislature properly concluded that violations were per se sufficiently egregious to justify the enhanced award.” Herring v. American Medical Response Northwest, Inc., 255 Or App 315, 325, rev den, 353 Or 867 (2013). Legislative history These laws exist because of an attorney named Lisa Bertalan whose efforts led to the enactment of ORS 124.100 et seq. Her passion for the project arose from cases of financial abuse that her law firm handled for vulnerable adults. The original version of the bill was sweeping in its scope, with no exemptions for anyone, but as so often happens in Salem, well-funded industry groups fought to have their members excluded from the scope of the bill. The industries whose lobbyists insisted on an exemption are clear from the exemptions appearing in the final version of the bill: financial institutions as defined in ORS 706.008, health care facilities as defined in ORS 442.015, long-term care faci l ities (including residential care and assisted living facilities) licensed or registered under ORS Chapter 443, and brokerdealers as defined in ORS 59.005. Indeed, as testified to by Bertalan, “I didn’t want the bill not to go through because the nursing home industry would lobby heavily against this bill, and I didn’t think, as a percentage of abuses occurring, it was worth jeopardizing the entire bill.” Tape recording, Senate Judiciary Committee, SB 943, April 12, 1995, Tape 102, Side B. For context, Oregon’s Adult Protective Services (APS) investigates abuse allegations in the general community, as well as in facilities such as licensed adult foster care, assisted living and residential care facilities, and nursing homes. Facility investigations represent 25% to 35% of APS investigations. Notably, amendments excluding the “owner, employees, and agents” of longAnUnderused AccountabilityTool
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