For families who trusted a facility with someone they love — and for attorneys researching how to take an elder-neglect case past the medical-malpractice damages cap and through a defense motion for summary judgment. The whole case turns on one distinction the defense will fight to erase.
When a nursing home or care facility hurts a resident, the defense has a favorite move: call it "medical negligence" and bury it under the MICRA cap. Whether a family recovers the true value of what was taken — or a fraction of it — depends on defeating that move. Here is how the law actually draws the line.
The cap the defense is counting on
California's Medical Injury Compensation Reform Act — Civil Code § 3333.2, known as MICRA — caps noneconomic damages (the human harm: pain, suffering, the loss of dignity) in claims for "professional negligence" against health care providers. For decades that cap sat at $250,000 and was only recently raised by legislation. In a facility death or injury case, the defense's entire strategy is often to characterize the conduct as ordinary medical negligence so that cap swallows the case.
The distinction that changes everything: neglect vs. negligence
The Elder Abuse and Dependent Adult Civil Protection Act (Welfare & Institutions Code § 15600 et seq.) creates a different and more powerful claim. When a caregiver's reckless neglect — not a one-off negligent mistake — harms an elder, the Act's enhanced remedies under § 15657 apply: recovery of the elder's pre-death pain and suffering and an award of attorney's fees and costs. Critically, in Delaney v. Baker (1999) 20 Cal.4th 23, the California Supreme Court held that reckless neglect under the Elder Abuse Act is not "professional negligence," so the MICRA cap does not apply. That single holding is the difference between a capped case and a full one.
The price of admission: clear and convincing proof
Those enhanced remedies are not free. As the Court explained in Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, a plaintiff must prove recklessness, oppression, fraud, or malice in the neglect by clear and convincing evidence — a higher bar than ordinary negligence. This is the hard part. You do not prove recklessness with a single bad day; you prove it with the pattern — the staffing records, the care charts, the unaddressed pressure wounds and falls, the corporate decisions that put margins ahead of residents. Building that record is the work.
The difficulty, in one motion: defeating summary judgment
In these cases the defense almost always moves for summary judgment under Code of Civil Procedure § 437c, asking the court to throw the case out before trial on the theory that there is no triable issue of recklessness — only, at most, ordinary negligence subject to the cap. Losing that motion ends the case. Winning it is a matter of marshaling the evidence — the records, the experts, the staffing data — into a showing that a reasonable jury could find reckless neglect. That is the fight that decides everything.
What this looks like in practice
In a case our firm handled, the facility moved for summary judgment, arguing the claim was capped medical negligence and could not proceed as elder abuse. We opposed and defeated the motion, establishing that the evidence raised a triable issue of reckless neglect and that the case was not limited by the MICRA cap. The matter then resolved in a substantial recovery for the family. Results depend on the unique facts of each case. Prior results do not guarantee or predict a similar outcome in any future matter.
Frequently asked questions
What is the MICRA cap?
Civil Code § 3333.2 caps noneconomic damages in medical "professional negligence" cases (long $250,000, recently raised). The defense wants facility cases treated this way.
How does an elder-abuse claim get past it?
By proving reckless neglect under the Elder Abuse Act. Delaney v. Baker holds that reckless neglect is not "professional negligence," so § 15657 remedies apply and the cap does not.
What must be proven?
Recklessness (or oppression, fraud, or malice) by clear and convincing evidence — see Covenant Care. It is proven through the pattern of care, records, and staffing, not a single error.
Can the case survive a summary-judgment motion?
Yes — by raising a triable issue of reckless neglect under CCP § 437c. That is exactly the motion these cases live or die on.
The bottom line
The defense will tell a grieving family the law limits what their mother's suffering was worth. Sometimes it does — and sometimes the conduct was reckless enough that the law says otherwise. Knowing the difference, and proving it, is the case.
A loved one harmed in a care facility? Talk to us.
Free, confidential consultation. We handle serious elder-abuse and neglect cases — and we welcome referrals and co-counsel from other attorneys (fee splits honored under Rule 1.5.1).
Request a ConsultationResults depend on the unique facts of each case. Prior results do not guarantee or predict a similar outcome in any future matter. This article is general information about California law, not legal advice, and does not create an attorney-client relationship. Responsible for content: Tom Vertanous, Esq., The Vertanous Firm, P.C., SBN 330760 — (626) 888-2223.