Expert Fees in Elder Abuse Cases

This is a recent case dealing with expert fees in Elder Abuse cases, and formal settlement offers. Under certain provisions of the law, located at Welfare and Institutions Code §15657 (often referred to as the Elder Protection Act), a prevailing party in an Elder Abuse case can recover attorney’s fees, and costs. A defendant, however, is not permitted to recover these under this Act.

In this case, Bates vs. Presbyterian Intercommunity Hospital, the defendant served a formal offer to settle, called a 998. When this is done, and the other party on whom the offer was made does not do better at trial, then the person who served the offer can recover their costs. In this case the costs were significant, $64,826 (expert’s fees and other costs). The plaintiff who did not do better at trial objected to the claim for costs that was made by the defendant. The purpose of the 998 is to encourage settlements, and have each party take a hard look at their case. There is a “penalty” when the party makes a reasonable offer to settle, and the other side ignores the offer, and then does not do better then the offer at trial.

The court referred to another act (the Song Beverly Act), and the legislative history of 998 offers, and held that the prevailing party (the defendant who made the offer in this case) was entitled to recover its costs. This was a substantial loss for the plaintiff, the party that sued, and chose not to accept the offer that was made.

In almost all cases, one party or the other makes this kind of offer. It is usually done before expert fees are starting to climb, as the effect of the 998 does not go in until the offer is made. In other words, expert fees in elder abuse cases and costs incurred before the 998 is served are not recoverable.