Thursday, February 28, 2013

New Oregon case affirms treble damages in elder abuse cases.

Under Oregon's elder abuse laws, an abused elder who receives a damages award from a judge or a jury is entitled to have the amount of the award tripled. The law allowing treble damages has been around for a long time but Oregon's elder law lawyers haven't seen many appellate cases construing the statute. A recent case called Herring v. American Medical Response has added some clarity to this murky area of law.

    The facts off the case are lurid. An emergency medical technician who worked for an ambulance company molested a woman, who was conscious but unable to move or speak, while transporting her to the hospital. The technician was convicted of a crime and the woman sued the ambulance company for "permitting" the abuse of an incapacitated person by employing this particular technician. (He had a history of similar activities.)

    A jury awarded the woman $500,000 in general damages for pain, humiliation and suffering. This award was tripled under the Oregon elder abuse statute. The ambulance company appealed on a variety of grounds and the Oregon Court of Appeals took a look at the treble damages provision in Oregon's elder abuse statute.

    The ambulance company first maintained that the statute should not apply because the injured woman was neither over sixty-five nor permanently disabled. The court rejected that argument, pointing out that the definition of incapacity contained in the elder abuse statute covers not only the elder and permanently disabled, but also people who temporarily lack capacity.

    The company next argued that the damages should not be tripled because to do so violated another Oregon law that limits damages for pain and suffering to a maximum of $500,000. The court held that the jury had awarded exactly $500,000 in pain and suffering damages. The tripling of that amount was done by the judge as he was required to do by a separate statute. The extra million dollars was not damages but more in the nature of a fine.

    The company then argued that the extra million that resulted from tripling the jury award constituted punitive damages. Punitive damages are somewhat disfavored in civil courts because as a general rule punishing citizens is left up to the government, not other citizens. Consequently, there are special rules that apply to punitive damages and normally a portion of any punitive damage award goes to the state. The court rejected the idea that a treble damage award should be subject to any of the limitations applied to punitive damages, stating again that the tripling of damages is a civil penalty.

    The jury had decided not to assess punitive damages against the ambulance company. The jury found no evidence that the ambulance company deserved punishment for its negligence in hiring that technician. The legislature, however, had a different view. It passed a law that makes a any person who permits the abuse of a vulnerable person--even if not actually participating in the abuse--subject to a civil fine in the form of treble damages. Unlike punitive damages, the full amount of that tripled damage award is payable to the plaintiff.

    The case is another encouragement for lawyers like me to find a way, if possible, to transform ordinary negligence cases into elder abuse cases. As one elder law attorney wrote recently about this case: "The floodgates are now open."

Tuesday, February 5, 2013

How long does it take to get a guardianship or conservatorship in Oregon?

I often advise clients not to seek a guardianship or conservatorship until it becomes absolutely necessary. The court process is expensive and cumbersome, so I tell clients that going to court should be the last resort. The result of this advice is that when families finally decide to seek a guardianship they want it quickly. Their first question is how long will it take.

In the courthouse where I practice, guardianships and conservatorships are called protective proceedings. They are called this because they protect vulnerable elders. There are three different procedures for getting protection from the court: the standard, the speedy, and the super speedy. The faster I have to get the protection, the more difficult and expensive the legal procedure is. Most clients opt for the standard and that is what I discuss in this article

The Time Estimates for a Standard Guardianship or Conservatorship

    The first step in obtaining a guardianship or conservatorship is finding and selecting an Oregon elder law attorney.  If you work at it, this should take about four days. Once you have selected an attorney you will need to provide him or her with a lot of information about the elder and his family. It will take you three days to get this information together--usually by filling out a form provided by the lawyer. While you are getting this information, the lawyer has work to do. If you are asking to be appointed a conservator, your lawyer will check and see if the bonding companies will bond you. If you asking that a professional guardian or conservator be appointed, the lawyer will spend time convincing one of them to take your case. All of this should get done in the first week, at which time the lawyer will be ready to write the petition that will be submitted to the court.

    The lawyer might take three business days to write the petition. Then you come in to read it and make corrections. The next day the lawyer can file the case. You will have a case number and are approximately eleven days into the process.

Within a day or so of filing the case the lawyer will have a process server personally hand the disabled elder a copy of the petition and a thick sheaf of documents advising the elder of his right to object and his right to be represented by an attorney. At the same time the lawyer will mail a copy of the petition to the adult children of the elder, the State of Oregon and a few other people. Those people also have the right to object. If anyone objects, all bets are off, the case will be significantly delayed, and the case will have gone beyond what I can write about in this column.

Once the elder is personally served with the petition and the notices have been mailed, you and your lawyer wait for fifteen days for somebody to object. If it is a guardianship the fifteen days is used to obtain and review the report from the court visitor. If the court visitor agrees that the elder needs protection you are on your way. If the court visitor has a problem with what you want to do, there will be a delay while the court looks at the matter more closely. If it is a conservatorship, the attorney will secure the bond. If you are seeking both a guardianship and a conservatorship, you will have to deal with both a visitors report and a bond.  On the sixteenth day after service of the petition on the elder, the attorney may apply to the court for a judgment. We are now at day twenty-seven.

The speed at which a court processes a judgment and issues letters of guardianship or conservatorship varies by county. I will estimate a week as the normal time it takes for the court to do its part. We are now at day thirty-four. It has take slightly more than a month to go from deciding that a protective proceeding is necessary to having a court order in hand.

The schedule I describe is optimal and depends upon both the lawyer and the client attending to their duties promptly. If the elder or any other interested person files an objection the matter will be delayed as the matter is set for hearing or mediation.

Sometimes thirty-four days is too long. In that case the elder law lawyer uses an expedited process to obtain a temporary protective order. A temporary protective order lasts only thirty days but it offers protection for the elder while the lawyer takes the steps to obtain a permanent one the regular way. My next post will examine how long it takes to have a guardian or conservator appointed in an emergency.