June 15, 2016 – When looking at care options for elderly loved ones, families want to trust that the facility they choose will truly care for their relatives and keep them safe from harm. Unfortunately this isn't always the case, and some elderly people fall victim to elder abuse.

According to the National Center on Elder Abuse, elder abuse can include physical abuse, emotional abuse, sexual abuse, exploitation, neglect, and abandonment. Nursing homes and assisted living facilities are charged with certain guidelines and standards that they must follow in caring for their elderly residents. When those facilities breach those duties, the victims may have a cause of action against them.

Unlike many other tort causes of action, some aspects of an elder abuse and neglect claim may involve codified statutes and regulations. Therefore, when attorneys accept elder abuse and neglect cases, they must be cognizant of these laws. Unfortunately, little guidance is afforded to attorneys in the way of research guides and resources, especially those specific to Wisconsin. By surveying the various means of researching elder abuse and neglect,¹ this article provides attorneys and legal staff with a succinct resource on Wisconsin elder abuse and neglect legal research.

Statutory Definitions Involving Elder Abuse in Wisconsin

Though elder abuse and neglect is defined generally by the National Center on Elder Abuse, each state also defines elder abuse within its own laws. In Wisconsin, elder abuse definitions are found in statutory law, but are not contained in just one statute.

Nursing Home and Community-based Residential Facility. Chapter 50 of the Wisconsin Statutes provides laws on uniform licensure and contains definitions for "nursing home" and "community-based residential facility."

• "Nursing home" is defined as a place where five or more persons who are not related to the operator or administrator reside, receive care or treatment and, because of their mental or physical condition, require access to [24]-hour nursing services, including limited nursing care, intermediate level nursing care, and skilled nursing services.

• A “community based residential facility” (CBRF) is defined as a place with five or more adults who are not related to the operator or administrator and who do not require care above intermediate level nursing care reside and receive care, treatment or services that are above the level of room and board but that include no more than three hours of nursing care per week per resident.

Elder Abuse, Physical Abuse, Emotional Abuse, Sexual Abuse, Neglect

Chapter 46 of the Wisconsin Statutes promulgates laws on social services and contains elder abuse and neglect definitions.

• "Elder abuse" includes physical abuse; emotional abuse; sexual abuse; treatment without consent; and unreasonable confinement or restraint.

• "Physical abuse" is defined as "the intentional or reckless infliction of bodily harm."

• "Emotional abuse" is defined as "language or behavior that serves no legitimate purpose and is intended to be intimidating, humiliating, threatening, frightening, or otherwise harassing, and that does or reasonably could intimidate, humiliate, threaten, frighten, or otherwise harass the individual to whom the conduct or language is directed."

• "Sexual abuse" has the same definition as in other statutory provisions.

• "Neglect" is defined as the failure of a caregiver, as evidenced by an act, omission, or course of conduct, to endeavor to secure or maintain adequate care, services, or supervision for an individual, including food, clothing, shelter, or physical or mental health care, and creating significant risk or danger to the individual's physical or mental health.

General Abuse Research

Data and statistics on general elder abuse research – both nationally and in Wisconsin – are relatively easy to locate, especially with a simple Google search. However, several available resources are particularly helpful for researching in the field of elder abuse and neglect.

In 2007, the American Bar Association published an article entitled “Neglect of Older Persons: An Introduction to Legal Issues Related to Caregiver Duty and Liability” on the duties of caregivers and when those duties have been breached, in the context of both contracts and criminal liability. For contract and criminal attorneys, this free source provides a useful overview of caregiver duties, but it does not discuss caregiver duties in the civil liability context.

The National Center on Elder Abuse website features a research page that provides links to general elder abuse research, including statistics and data, public policy (federal and state laws), government reports, webinars and podcasts, related sites, and a Research Review. The Research Review provides research databases, research briefs, research translations, and future directions on elder abuse research. This free source contains a plethora of national elder abuse resources but does not provide Wisconsin-specific materials.

Finally, the Taylor & Francis Group publishes the Journal of Elder Abuse & Neglect, the official journal of the National Committee for the Prevention of Elder Abuse (NCPEA). The journal "explores the advances in research, policy and practice, and clinical and ethical issues surrounding the abuse and neglect of older people." Access to the journal is available electronically by subscription.

The Wisconsin State Law Library's website contains an elder abuse page that lists agencies and organizations involved in elder care and abuse reporting procedures, as well as a compilation of the relevant Wisconsin law on elder abuse and neglect. However, this compilation does not include laws governing CBRFs. Although the Elder Abuse page also includes links to related topics, law review articles, other library resources, and other journals and legal databases, it provides little guidance on the legal research involved in pursuing a tort cause of action.

The Wisconsin Department of Health Services has compiled a summary of elder abuse and neglect reports submitted by Wisconsin counties. This free summary is available on the internet and contains information on elder abuse, neglect, and financial exploitation, organized by counties in Wisconsin. The report provides the sources of reporting and includes graphs to distinguish types of abuse and sources of reporting. However, the most recent report available seems to be from the 2010 reporting year.

Resources for Elder Abuse Legal Research

Elder abuse and neglect legal research is more difficult to locate, primarily due to a lack of uniformity in resource locations. Compared to case law on nursing homes, case law on other types of assisted living facilities (CBRFs) is scant. Legal research in the area of elder abuse and neglect involves researching several different sources of both primary and secondary law.

Resources Outside Wisconsin. Perhaps the most useful secondary source available to begin researching an elder abuse claim is a Causes of Action article entitled “Cause of Action Against Assisted Living Facility for Injury or Death of Resident."² This article is available on Westlaw by subscription and provides a comprehensive overview of both the substantive law (including the elements for a prima facie case) and the necessary practice and procedure involved in litigating an elder abuse claim. This source is an extremely helpful starting point for attorneys in this field. However, the article is not Wisconsin-specific.

Associate professor Y. Tony Yang from George Mason University published a law review article entitled "Legal Considerations For Assisted Living Facilities" similarly on the substantive law surrounding elder abuse and considerations involved in litigating an elder abuse claim. This article is available both on Westlaw and via Google search and similarly is national in scope. It also does not contain Wisconsin-specific information.

One resource linked to the Wisconsin State Law Library’s Elder Abuse webpage provides guidance on the legal research involved in pursuing a tort cause of action, but it is not Wisconsin-specific. Listed under “library resources” is a link to a treatise entitled "The Lawyer's Guide to Elder Injury and Accident Compensation." The treatise provides a general overview of pursuing a tort cause of action on behalf of an elderly client, including the potential types of injuries involved, how to evaluate the injuries, and the responsibilities of nursing homes. The treatise is available for check out from the State Law Library and the University of Wisconsin Law Library, and is available for purchase on Amazon.

Wisconsin-specific Research. The best starting point for Wisconsin elder abuse legal research is the substantive law on point. Both statutes and regulations provide the law governing nursing homes and CBRFs and their duties to their elderly residents. Chapter 132 of the Department of Health Services (DHS) Administrative Code governs nursing homes. Chapter 83 governs CBRFs. Chapter 94 promulgates elderly residents' rights and establishes a procedure for resolution of resident grievances. Section 50.09 of the Wisconsin Statutes similarly delineates the rights of residents in both nursing homes and CBRFs.

In researching possible statutory or regulatory violations, Chapter 13 of the DHS Administrative Code governs reporting and investigating of caregiver (which may include both nursing homes and CBRFs) misconduct. Section 46.90 of the Wisconsin Statutes promulgates a procedure for reporting suspected elderly abuse. Section 13.05 of the DHS Administrative Code governs a facility's responsibility in responding to allegations of caregiver misconduct.

Section 50.10 of the Wisconsin Statutes provides that a resident may have a private cause of action "to correct conditions in [a] nursing home or acts or omissions by the nursing home" that violate that statutory subchapter and are "foreseeably related to impairing the person's health, safety, personal care, rights or welfare."

However, in the context of CBRFs, Wisconsin case law provides that residents do not have the right to pursue a private cause of action against a CBRF for the violation of a statute or regulation.³ Instead, residents in CBRFs are limited to pursuing claims against those facilities on the basis of negligence.

Farr provides the elements necessary to bring a negligence cause of action against a CBRF:

1. A duty of care on the part of the defendant;
2. a breach of that duty;
3. a causal connection between the conduct and the injury; and
4. an actual loss or damage as a result of the injury.

Additional Considerations

When elderly people placed in the care of nursing homes or community-based residential facilities fall victim to caregivers who breach their duties, families want to know that legal recourse is available. In Wisconsin, preparing to successfully litigate an elder abuse claim requires researching various primary and secondary sources that promulgate the various laws governing nursing homes and CBRFs. Carefully navigating these substantive and procedural rules will allow attorneys to better serve their elderly clients and their families.

Additional considerations beyond the scope of this article include what to do if the informal methods of providing care for an elderly person have failed, including guardianship and possible protective services. The State Bar’s Books Unbound collection contains a treatise, entitled "Guardianship and Protective Placement for the Elderly in Wisconsin," surveying these considerations.

Endnotes

¹ "Elder abuse research" can have several different meanings – it can mean abuse and neglect data and statistics, etc. and it can also mean legal research in the area of elder abuse. This article briefly explores general elder abuse research, but the primary aim of this article is to survey resources for elder abuse legal research.

² Eric M. Larsson & Jean A. Talbot, Causes of Action Against Assisted Living Facility for Injury or Death of Resident, 40 Causes of Action 2d 555 (2016).

³ Farr v. Alt. Living Svs., Inc., 2002 WI App 88, ¶ 16, 253 Wis. 2d 790, 643 N.W.2d 841.