Elder Abuse Civil Claims in Georgia: Holding Caregivers and Facilities Accountable

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Which Georgia statutes apply to harm done to an older person depends first on where the person lives. The Disabled Adults and Elder Persons Protection Act defines abuse, neglect, and exploitation and sets who must report them, but it defines an “elder person” as someone 65 or older “who is not a resident” of a long-term care facility. A resident falls under the Bill of Rights for Residents of Long-term Care Facilities, which gives a private cause of action against the facility.

Who Is Covered by Which Statutes

“Elder person” means “a person 65 years of age or older who is not a resident” (OCGA 30-5-3(6)), and a “disabled adult” is an adult who is “not a resident” and who is mentally or physically incapacitated, has Alzheimer’s disease, or has dementia (OCGA 30-5-3(5)). “Resident” has the meaning in OCGA 31-8-81 (OCGA 30-5-3(16)). If a disabled adult or person is 65 or older and is a resident, a report “shall be made in accordance with Article 4 of Chapter 8 of Title 31,” and a report alleging abuse or exploitation within a long-term care facility “shall be investigated in accordance with Articles 3 and 4 of Chapter 8 of Title 31” (OCGA 30-5-4(b)(1)(B)).

What the Protection Act Defines

“Abuse” means “the willful infliction of physical pain, physical injury, sexual abuse, mental anguish, unreasonable confinement, or the willful deprivation of essential services to a disabled adult or elder person” (OCGA 30-5-3(1)). “Neglect” means “the absence or omission of essential services to the degree that it harms or threatens with harm the physical or emotional health of a disabled adult or elder person” (OCGA 30-5-3(14)). “Exploitation” means “the illegal or improper use of a disabled adult or elder person or that person’s resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense, or other similar means for one’s own or another’s profit or advantage” (OCGA 30-5-3(8)). A “caretaker” is “a person who has the responsibility for the care of a disabled adult or elder person as a result of family relationship, contract, voluntary assumption of that responsibility, or by operation of law” (OCGA 30-5-3(2)). “Essential services” include “the provision of medical care for physical and mental health needs, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, and protection from health and safety hazards” (OCGA 30-5-3(7)).

Who Must Report

Persons having reasonable cause to believe that a disabled adult or elder person has been the victim of abuse, other than by accidental means, or has been neglected or exploited “shall report or cause reports to be made.” The list includes physical and occupational therapists, day-care personnel, coroners and medical examiners, emergency medical services personnel, “[e]mployees of a public or private agency engaged in professional health related services to elder persons or disabled adults,” and “[c]lergy members” (OCGA 30-5-4(a)(1)(A)). An employee of a financial institution or investment company with reasonable cause to believe that a disabled adult or elder person has been exploited must also report (OCGA 30-5-4(a)(1)(B)). The report goes “to an adult protection agency providing protective services as designated by the department and to an appropriate law enforcement agency or prosecuting attorney” (OCGA 30-5-4(b)(1)(A)). A person who makes a report, testifies in a proceeding arising from it, or provides protective services “shall be immune from any civil liability or criminal prosecution on account of such report or testimony or participation, unless such person acted in bad faith, with a malicious purpose, or was a party to such crime or fraud” (OCGA 30-5-4(c)).

A Resident’s Rights and the Cause of Action

Each resident of a long-term care facility is entitled to care, treatment, and services that are adequate and appropriate and provided with reasonable care and skill, in compliance with applicable laws and regulations, and with respect for the resident’s personal dignity and privacy (OCGA 31-8-108(a)). A person aggrieved because a facility has violated or failed to provide a right under that article has a cause of action against the facility for damages and other relief the court deems proper (OCGA 31-8-126(a)).

Two decisions on facilities show how such claims can be framed. In Traver v. Felton Manor, LLC, No. A22A0861 (Ga. Ct. App. Aug. 23, 2022), a personal care home case, the court reversed a ruling for the home, wrote that residents are “generally considered to be Felton Manor’s invitees,” and identified two jury questions, the home’s superior knowledge and the resident’s own care. In Peacock v. HCP III Eastman, Inc., 230 Ga. App. 726 (1998), the court reversed a jury verdict for a nursing home because the home’s incident reports from January 1991 through March 1993 should have been produced, reasoning, in words drawn from an earlier decision, that such reports “could show [the home] had notice its employees were not properly supervising residents.”

Time Limits

The general period for an action for injuries to the person is two years after the right of action accrues (OCGA 9-3-33). A person legally incompetent because of intellectual disability or mental illness when the claim accrues has the same time after the disability is removed that others have (OCGA 9-3-90(a)). The period for a tort claim by the victim of an alleged crime is tolled from the crime until the prosecution becomes final or otherwise ends, for no more than six years (OCGA 9-3-99). For a medical malpractice action, which includes care rendered by a nursing home (OCGA 9-3-70), a legally incompetent person is subject to the malpractice periods and to a five-year outer limit (OCGA 9-3-73(b), (c)).

For example, imagine a person who is legally incompetent when a cause of action accrues on March 1, 2027, and who regains competence on July 1, 2028. For a claim governed by the two-year period of OCGA 9-3-33, OCGA 9-3-90(a) gives the same time after the disability is removed, which would run to July 1, 2030.

Frequently Asked Questions

Must a resident use administrative complaints before suing the facility?
No. A person may not be barred from suing under the residents’ rights article for failing to exhaust administrative or other relief granted under that article (OCGA 31-8-126(a)).

Can the state also penalize the facility?
Yes. The department must order a facility to correct a violation and may stop new admissions if it does not, and for violations repeated under the same license within 12 months it may assess a civil penalty of up to $75 per violation per day, capped at $2,500 per violation, after notice and hearing (OCGA 31-8-126(b), (c)).

May a resident choose a physician?
Yes. Each resident or guardian is entitled to choose the resident’s physician and to participate in the overall planning of the resident’s care and treatment (OCGA 31-8-108(b)(1), (2)).

Can a facility give lesser care to a resident because of how the stay is paid for?
No. Care, treatment, and services must be provided without discrimination in the quality of a service based on the source of payment for the service (OCGA 31-8-108(a)(3)).

  • OCGA 30-5-1; OCGA 30-5-3(1), (2), (5), (6), (7), (8), (14), (16); OCGA 30-5-4(a), (b), (c)
  • OCGA 31-8-100; OCGA 31-8-108(a), (b); OCGA 31-8-126(a) through (c)
  • Traver v. Felton Manor, LLC, No. A22A0861 (Ga. Ct. App. Aug. 23, 2022); Peacock v. HCP III Eastman, Inc., 230 Ga. App. 726 (1998)
  • OCGA 9-3-33; OCGA 9-3-90(a); OCGA 9-3-99; OCGA 9-3-70; OCGA 9-3-73(b), (c)

Disclaimer

This article provides general information about civil claims for harm to older persons under Georgia law. It is not legal advice and does not create an attorney-client relationship. Which statutes apply depends on where the person lives, who caused the harm, and the specific facts. A person concerned about an older person’s safety should consult a licensed Georgia attorney promptly about the particular situation.

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