Misdemeanor Elder Abuse – Penal Code 368(c)

Misdemeanor Elder Abuse – Penal Code 368(c)

Penal Code section 368(c) is the misdemeanor section of the California elder abuse statute. Generally speaking, the prosecuting agency, either the District Attorney’s Office or the California Attorney General’s Office has one year to file the case.  Penal Code section 802(a) states that a misdemeanor case must be commenced “one year from the commission of the offense.” However, if the one year statute of limitations has passed, the prosecutor can elect to file the case as a felony under Penal Code 368(b)(1).  Therefore, it might not be best to sit and wait in every instance; it may be better to hire an experience attorney to investigate and provide the missing facts to the prosecutorial agency as to warrant a rejection of the case if possible.

Misdemeanor elder or dependent adult cases can be filed against any staff member, including a caretaker, a CNA, a registered nurse, licensed vocational nurse, a family member, and even the doctor.  The statutes states that any person who knows or reasonably should know that a person is an elder or dependent adult and under the circumstances or willfully causes or permits and elder or dependent adult to suffer physical pain or mental suffering or inflict pains or endangerment to the elder or dependent adult is guilty of a misdemeanor and the conduct was other than those likely to cause great bodily injury or death.  If the adult suffers from great bodily injury or death, then the defendant will be charged with a Felony under Penal Code section 368(b)(1).  

4 instances where a person may be charges with Penal Code 368(c) as a misdemeanor:

Willfully Inflicting Pain or Mental Suffering.

Where the defendant is being accused of willfully inflicted unjustifiable physical pain or mental suffering on the elder or dependent adult.  An example would be where a person hits an elder but the injuries are not as severe as to likely cause great bodily injury or death.  

Supervisors Criminal Liability

Where the defendant allowed someone, whose conduct the defendant had a duty to supervise and control, to inflict unjustifiable physical pain or mental suffering on the description of elder or dependent adult.  An example would involve a registered nurse getting prosecuted for a caretaker’s actions in a nursing home.  As part of the KLG ongoing training to staff members in hospitals and nursing homes, we suggest always placing a staff member on administrative suspension pending an investigation of an allegation so that a subsequent allegation is not made against supervisors.

Caretaker Causing Health to be Injured.

Where the defendant while having care or custody of elder or dependent adult, willfully caused or permitted that person health to be injured.  The classic instance is where a caretaker hits a patient.  But, there are other incidents that may result in the filing of criminal charges – aggressive dependent adult male attempts to inappropriately touch caretaker; caretaker responds in self defense.  

Where the caretaker while having custody, caused or permitted elder or dependent adult to be placed in danger.

Some example are leaving the patient unattended, leaving the patient outside on a hot day, leaving the patient too long on the toilet, or failing to respond to call light.

Operation Inspector General (OIG) EXCLUSION

If a caretaker has been convicted of a crime of elder abuse, they will be placed on the OIG exclusion list and will not be able to practice in facility that participates in the Medicare program.

OIG’s List of Excluded Individuals/Entities (LEIE) provides information to the health care industry, patients and the public regarding individuals and entities currently excluded from participation in Medicare, Medicaid and all other Federal health care programs. Individuals and entities who have been reinstated are removed from the LEIE.

Title 42 CFR § 1001.101 states the Basis for liability for individuals as follows:

  1.  The OIG will exclude any individual or entity that—

(a) Has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program;

(b) Has been convicted, under Federal or State law, of a criminal offense related to the neglect or abuse of a patient,

(c) Has been convicted, under Federal or State law, of a felony that occurred after August 21, 1996, relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct— (d) Has been convicted, under Federal or State law, of a felony that occurred after August 21, 1996 relating to the unlawful manufacture, distribution, prescription or dispensing of a controlled substance, as defined under Federal or State law.

There are many alternatives to prevent a criminal conviction for misdemeanor elder abuse pursuant to Penal Code 368(c).  If you have pending criminal charges or under investigation for elder abuse, call Attorney Arthur Khachatourians for a  consultation – 818-590-8294.