8 Trial Lawyer • Winter 2023 Accountability Continued from p 7 which a reasonable person should have known of the physical or financial abuse. ORS 124.105(5). So how does this work in, for example, a case involving staff at a memory care facility? You must sue the individual defendant for acts that individual did in addition to your suit against the facility for negligence and all your other claims. As discussed above, licensed care facilities themselves are not subject to these kinds of suits, but their owners, employees and agents are. Don’t forget to send notice ORS 124.100(6) requires plaintiffs to mail a copy of the complaint to Oregon’s attorney general when it is filed. This used to be jurisdictional, but the law was amended and notice is still required. It can be sent at any time prior to the entry of judgment. In addition to being required, Oregon has a statewide elder abuse prosecutor in the attorney general’s office and an elder abuse unit. While I personally have not worked with them on a case, these might be resources that can assist in the right case. Is a criminal conviction required? There is no language in the statute that requires a criminal conviction of anyone. It does reference criminal statutes for the definitions of what conduct constitutes abuse, but the language does not require a conviction prior to a claim being made. That makes sense given the category of defendants who permit abuse to happen and given the larger goals of the statute. That is backed up by legislative history. In his written testimony in support of the 2003 amendment adding treble damages to the statute, then Representative Mark Hass noted prosecutors often lacked the resources and/or admissible evidence to prove cases involving the financial exploitation of elderly and incapacitated persons. By using this civil claim with a lower burden of proof, such abusers could still be held accountable. He noted that the added treble damages would encourage settlement and avoid costly and painful litigation while increasing the likelihood of recovery for the victim. What next? We have been given a tool that by legislative design and intent is supposed to help plainti ffs and incentivize defendants to settle these claims. We should be using this tool in every case where it fits. Not only to help our clients, and because it increases the damages avai lable to them. We should also use it because the conduct that this statute targets is horrendous and unfortunately frequent. We are seeing more and more cases of vulnerable people being abused in various ways, and this statute gives us a way to drive home to defendants — particularly corporate defendants — that the conduct must stop. If owners, employees and agents of licensed care facilities are held accountable for what is permitted under the roof of licensed care facilities — typically due to understaffing and under-resourcing the facility in pursuit of profit — there will quickly be a rebellion against the facilities that are allowing this to happen. Staff will not appreciate being the fall guys. Why it matters We need every tool we can get to protect people from the abuse that happens in these facilities all too frequently. In 2014, an estimated 16% of Oregonians were 65 or older. By 2030, that number is expected to rise to 20%. In 2020, the latest year for which numbers are currently published, local APS offices received a total of 46,239 calls. From those calls, APS reported it investigated 10,728 community cases in 2020, though it did not report howmany facility cases it investigated. Doing the math, since it acknowledged that facility investigations are 25-35% of its cases, that means there should have been between 3,576 and 5,776 facility investigations that year. An investigation byThe Oregonian newspaper into elder abuse in Oregon found, as of 2017, APS had failed to include more than 8,000 substant iated a b u s e c omp l a i n t s against facilities in its online database. The number is made all the more astonishing because it means “[m]ore than 60 percent of the subs t ant i at ed complaints against care centers in Oregon [between 2005-2016] can't be found on the state's website” and “[t]he omissions skew the track records of nine out of every 10 senior care centers in the state.” https://www.oregonlive.com/ health/2017/04/senior_care_abuse_ neglect_poor_care_hidden.html. With the elderly population expected to grow substantially and APS being very closed-mouthed about what’s happening in those facilities, the plaintiff’s bar is an essential component of keeping vulnerable Oregonians safe. The Vulnerable Person Abuse Statute is an important tool we need to pick up and use. Faith Morse specializes in plaintiff ’s personal injury, nursing home abuse and traumatic brain injuries. She is a member of the OTLA Guardians of Civil Justice at the Guardians Club level. Morse is a partner at the AndersenMorse & Linthorst, PC, 1730 E McAndrews Rd., Medford, OR 97504. She can be reached at 541773-7000 or faith@andersenlaw.com.
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