Written and reviewed by Josh Kohanim, Esq., California Bar No. 328609 · Published · Reviewed
In this guide
This page is for families who believe neglect in a nursing home or an assisted living facility led to a death. In California, only the people named in Code of Civil Procedure section 377.60 can bring a wrongful death claim. They can file it themselves, or the personal representative of the estate can file it on their behalf. Our page on who can file explains that list, our main wrongful death page covers these claims in general, and our article on elder injuries and the Elder Abuse Act covers injuries that did not end in death.
People the law protects
California's Elder Abuse Act protects people 65 and older, and adults 18 to 64 with disabilities, from abuse and neglect by those responsible for their care. An elder is any person residing in California who is 65 or older (Welfare and Institutions Code section 15610.27). A dependent adult is a person 18 to 64 whose physical or mental limitations restrict their ability to carry out normal activities or to protect their rights, and the term also covers anyone 18 to 64 admitted as an inpatient to a 24-hour health facility (section 15610.23). The Act's term "care custodian" covers the administrators and employees of 24-hour health facilities and of residential care facilities for the elderly, among many others (section 15610.17).
Neglect under the law
Neglect means failing to provide the basic care a reasonable caregiver would: help with hygiene, food and water, protection from hazards, preventing dehydration and malnutrition, and getting medical care when it is needed. The statute, section 15610.57, defines it as the negligent failure of anyone who has the care or custody of an elder or dependent adult to use the degree of care that a reasonable person in a like position would use. In 2025 the California Supreme Court called the failure to provide basic necessities, such as help with hygiene, food, hydration or clothing, paradigmatic examples of a failure to fulfill custodial duties. It added that a failure of staff to attend to, monitor, or help a resident get appropriate medical care generally falls on the custodial side of the line.
Situations we review
These are the kinds of facts that can point to neglect or abuse by a facility. Whether they meet the legal definition is answered from the records, not from a list.
- Dehydration or malnutrition.
- Pressure injuries that develop when a resident is not turned, repositioned or kept clean.
- A fall after a resident was left without the supervision the care plan called for.
- A resident left unattended for long periods.
- A change in condition with no call to a doctor and no transfer to a hospital.
- Wandering away from the facility.
- Physical or sexual abuse, or the misuse of physical or chemical restraints or psychotropic drugs.
The custodial relationship
Neglect under the Act depends on the relationship, not on job titles. In Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, the California Supreme Court held that the Act contemplates "a robust caretaking or custodial relationship", in which someone has assumed a significant measure of responsibility for an elder's basic needs that an able-bodied and fully competent adult would ordinarily manage without help. As the Judicial Council's jury instructions quote the case, it is the nature of the relationship, not the defendant's professional standing, that makes a defendant potentially liable for neglect. The same instructions quote a later case: the Act does not apply whenever a doctor treats any elderly patient.
Elder Abuse Act remedies
When neglect is proven, usually by clear and convincing evidence, and the facility acted with recklessness, oppression, fraud or malice, the court awards attorney's fees and costs, and damages for the resident's own pain and suffering can be recovered even after death, up to a limit set by statute (section 15657). The same remedies apply to proven physical abuse and abandonment. Recklessness, in words the jury instructions quote from Delaney v. Baker (1999) 20 Cal.4th 23, is a subjective state of culpability greater than simple negligence, a deliberate disregard of the high degree of probability that an injury will occur. Before these remedies can be imposed on a facility for what its employees did, the standard Civil Code section 3294 sets for holding an employer responsible must also be met.
The 2026 evidence rule
Since January 1, 2026, a judge may apply the lower preponderance standard if a skilled nursing facility, assisted living facility or adult care facility destroyed or altered evidence (section 15657.02). That can happen when the family wins a discovery motion because the facility committed spoliation, or when a judge or arbitrator finds at any point that it did. Spoliation means the intentional improper alteration of evidence, or the intentional concealment or destruction of records, done to keep the evidence from being produced, that has materially prejudiced the other side. The findings must be in writing. The rule does not reach facilities owned or operated by general acute care, acute psychiatric or special hospitals. Records destroyed after a written request to preserve them are among what the judge considers, which is why that request goes out early.
Pain and suffering after death
Except in qualifying elder or dependent adult abuse cases, a survival action filed on or after January 1, 2026 cannot recover damages for the pain, suffering, or disfigurement the person experienced before death. Those damages remain available only in actions filed on or after January 1, 2022, and before January 1, 2026, or granted a trial preference before January 1, 2022 (Code of Civil Procedure section 377.34(b)). Senate Bill 29 (2025), which would have extended the window, was never brought to a vote on the Assembly floor and did not pass by August 31, 2026, the last day for bills to pass in the 2025 to 2026 session. Law checked November 8, 2026. In qualifying elder or dependent adult abuse cases, a separate statute can still allow recovery of the person's pain and suffering before death, subject to strict proof requirements and, for abuse or neglect claims, a statutory cap.
Our page on survival actions explains the 2026 rule in full.
Two claims after a death
The family's own wrongful death claim is separate from the resident's elder abuse claim. In Holland, the California Supreme Court described an earlier case, Quiroz v. Seventh Ave. Center (2006), as holding that the Act's enhanced remedies are not available in a wrongful death action brought by an heir on their own behalf. So the fees and the resident's own pain and suffering belong to the estate's elder abuse claim. After the resident's death, that claim passes to the personal representative or, if there is none, to an heir, a successor in interest or another interested person who files the sworn declaration the law requires (section 15657.3). The family's own losses belong to the wrongful death claim, and the parents in Holland brought both in one lawsuit.
The family's losses
California's jury instruction for the death of an adult, CACI No. 3921, sets out what a wrongful death claim can include. The economic losses are the financial support the person who died would have contributed, the gifts or benefits the family would have expected, funeral and burial expenses, and the reasonable value of the household services that person would have provided. The noneconomic losses are the loss of that person's love, companionship, comfort, care, assistance, protection, affection, society, and moral support, and, where the facts fit, the loss of the enjoyment of sexual relations and the loss of training and guidance. CACI No. 3921 tells the jury not to consider a family member's grief, sorrow, or mental anguish. The law compensates the relationship that was lost, not the pain of losing it. The jury usually returns one amount for all the heirs. The court decides how an award is divided, and it can divide a settlement when the heirs do not agree. What a family recovers depends on its own evidence, and no result is guaranteed.
Our guide to damages and how they are divided goes through each item.
Arbitration agreements
The California Supreme Court held in 2025 that families are not ordinarily bound by an arbitration agreement the resident signed, unless the dispute is about medical malpractice. In Holland v. Silverscreen Healthcare, Inc. (Aug. 14, 2025, S285429), the resident had signed an agreement that said it was binding on his family members and heirs. The Court held that his parents still did not have to arbitrate their wrongful death claim about the facility's neglect of his basic welfare and safety needs. The exception reaches only a dispute about whether medical services were improperly, negligently or incompetently rendered. Your family's own wrongful death claim usually is not bound by the resident's agreement, but the estate's claims may be. Because the line runs between medical services and basic care, the complaint has to say which one it is about.
Rules on admission agreements
Under federal rules, a nursing home cannot require an arbitration agreement as a condition of admission, and the agreement must allow 30 days to cancel. The rule, 42 CFR 483.70(m), counts those as 30 calendar days. It also requires the facility to tell the resident of the right not to sign, to explain the agreement in a language the resident understands, to provide for a neutral arbitrator and a convenient place, and not to discourage anyone from talking to federal, state or local officials. California law adds that an admission contract with an arbitration clause must say that arbitration is not a condition of treatment or admission, and must put the clause on a form separate from the rest of the contract (Health and Safety Code section 1599.81). What happens to an agreement that breaks these rules is a question for a lawyer.
The residents' rights claim
A separate claim protects the rights of residents. Under Health and Safety Code section 1430(b), a current or former resident of a skilled nursing facility or an intermediate care facility, or the resident's legal representative, personal representative or successor in interest, can sue the facility's licensee for violating any right the resident has under state or federal law or regulation. The licensee is liable for the acts of its employees. A residents' rights claim allows up to $500 per violation, plus fees and costs, for violations since March 1, 2021. An agreement giving up the right to bring this claim is void, and these remedies are in addition to any other remedy the law provides.
Inspection records
Inspection results and complaint findings for certified nursing homes appear on Medicare's Care Compare. California's Department of Public Health also publishes facility information. On Care Compare, the federal Medicare agency rates each nursing home from one to five stars. Its technical guide says the health inspection rating is based on the two most recent annual inspections, plus the most recent 36 months of complaint investigations and focused infection control surveys, and that a facility with the abuse icon has its health inspection rating capped at two stars. The agency's rating system page adds that no rating system can address all of the important considerations. A rating is a starting point, and the facility's own records are what a case is built on. Our California nursing home lookup shows a facility's CMS ratings, recent citations and fines in one place.
Staffing minimums
Skilled nursing facilities must provide at least 3.5 direct care hours per resident per day, including 2.4 CNA hours (Health and Safety Code section 1276.65). CNA means certified nurse assistant. The rule has exceptions, including facilities that are a distinct part of a general acute care hospital, and the state can grant waivers when health care workers are in short supply. Staffing records are among the records a lawyer asks a facility to keep.
Neglect or medical malpractice
Neglect of basic care is different from medical malpractice under California law. A claim against a health care provider based on professional negligence is governed by the laws written for those claims (Welfare and Institutions Code section 15657.2). As Holland explains, quoting Delaney, professional negligence means negligence in the undertaking of medical services, while custodial neglect is the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing. We handle neglect and abuse in nursing homes and assisted living. We do not handle claims about a doctor's medical judgment; if your case turns on that, we will tell you. If the loss happened during medical care, we can refer you to a lawyer who handles medical cases.
Deadlines for these claims
Most California wrongful death lawsuits must be filed within two years of the date of death (Code of Civil Procedure section 335.1). If a city, a county, the State, a school district, a transit agency or another public entity may be responsible, the family must first present a written claim to that entity within six months after the claim accrues, which is usually the date of death (Government Code section 911.2). The lawsuit against the entity then has its own deadline: six months after a written rejection notice is delivered or mailed, or two years from the date the claim accrued if no written notice is given (Government Code section 945.6). Some cases have different periods, including a death caused by a health care provider's professional negligence (Code of Civil Procedure section 340.5) and a claim against the United States (28 U.S.C. section 2401(b)). The dates in any one case should be calculated by a lawyer.
Elder abuse claims have their own deadlines. Talk to a lawyer promptly. Our pages on the wrongful death statute of limitations and on claims against a city or county, which matter when a public entity runs the facility, explain the rules.
Steps families can take
You do not have to prove anything to talk to a lawyer. While the facts are fresh, it helps to write down what you saw on visits and when, keep photographs and messages, and note the names of staff you spoke with. A lawyer can ask the facility in writing to keep the chart, the care plan, incident reports, call light logs, staffing records and any video. Our wrongful death documents checklist covers the death certificate and the Medical Examiner's report, our checklist for the first 48 hours after a death covers what cannot wait, and our page on how a wrongful death case works explains each step. Legal terms are defined in our wrongful death glossary.
No fee unless we recover. If there is no recovery, you owe no fee and no case costs.
Sources cited
- Welfare and Institutions Code section 15610.23, dependent adult: California Legislative Information
- Welfare and Institutions Code section 15610.27, elder: California Legislative Information
- Welfare and Institutions Code section 15610.57, neglect: California Legislative Information
- Welfare and Institutions Code section 15657, enhanced remedies: California Legislative Information
- Welfare and Institutions Code section 15657.02, the standard of proof after spoliation (effective January 1, 2026): California Legislative Information
- Welfare and Institutions Code section 15657.2, professional negligence: California Legislative Information
- Welfare and Institutions Code section 15657.3, who brings the claim after a death: California Legislative Information
- Health and Safety Code section 1430, the residents' rights claim: California Legislative Information
- Health and Safety Code section 1276.65, staffing in skilled nursing facilities: California Legislative Information
- 42 CFR 483.70(m), binding arbitration agreements: eCFR
- Holland v. Silverscreen Healthcare, Inc. (Cal. Aug. 14, 2025, S285429): California Supreme Court opinion
- Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148: CourtListener
- Judicial Council of California Civil Jury Instructions (2026 edition), CACI Nos. 3103, 3104 and 3921: PDF
- Centers for Medicare and Medicaid Services, Nursing Home Five-Star Quality Rating System Technical Users' Guide (September 2026): PDF
- Centers for Medicare and Medicaid Services, Five-Star Quality Rating System: cms.gov
- Medicare Care Compare, nursing homes: medicare.gov