46-455

46-455. Permitting life or health of a
vulnerable adult to be endangered by neglect; violation;
classification; civil remedy; definition

A. A person who has been employed to provide care, who is a de facto guardian or de
facto conservator or who has been appointed by a court to provide care to a vulnerable
adult and who causes or permits the life of the adult to be endangered or that person's
health to be injured or endangered by neglect is guilty of a class 5 felony.

B. A vulnerable adult whose life or health is being or has been endangered or
injured by neglect, abuse or exploitation may file an action in superior court against
any person or enterprise that has been employed to provide care, that has assumed a legal
duty to provide care or that has been appointed by a court to provide care to such
vulnerable adult for having caused or permitted such conduct. A physician licensed
pursuant to title 32, chapter 13 or 17, a podiatrist licensed pursuant to title 32,
chapter 7, a registered nurse practitioner licensed pursuant to title 32, chapter 15 or a
physician assistant licensed pursuant to title 32, chapter 25, while providing services
within the scope of that person's licensure, is not subject to civil liability for
damages under this section unless either:

1. At the time of the events giving rise to a cause of action under this section,
the person was employed or retained by the facility or designated by the facility, with
the consent of the person, to serve the function of medical director as that term is
defined or used by federal or state law governing a nursing care institution, an assisted
living center, an assisted living facility, an assisted living home, an adult day health
care facility, a residential care institution, an adult care home, a skilled nursing
facility or a nursing facility.

2. At the time of the events giving rise to a cause of action under this section,
all of the following applied:

(a) The person was a physician licensed pursuant to title 32, chapter 13 or 17, a
podiatrist licensed pursuant to title 32, chapter 7, a registered nurse practitioner
licensed pursuant to title 32, chapter 15 or a physician assistant licensed pursuant to
title 32, chapter 25.

(b) The person was the primary provider responsible for the medical services to the
patient while the patient was at one of the facilities listed in paragraph 1 of this
subsection.

C. Any person who was the primary provider of medical services to the patient in
the last two years before it was recommended that the patient be admitted to one of the
facilities listed in subsection B, paragraph 1 of this section is exempt from civil
liability for damages under this section.

D. For the purposes of this section, primary provider does not include a consultant
or specialist as listed in subsection B, paragraph 2, subdivision (a) of this section who
is requested by the primary provider to provide care to the patient for whom the primary
provider is responsible, unless that consultant or specialist assumes the primary care of
the patient.

E. The state may file an action pursuant to this section on behalf of those persons
endangered or injured to prevent, restrain or remedy the conduct described in this
section.

F. The superior court has jurisdiction to prevent, restrain and remedy the conduct
described in this section, after making provision for the rights of all innocent persons
affected by such conduct and after a hearing or trial, as appropriate, by issuing
appropriate orders.

G. Before a determination of liability, the orders may include, but are not limited
to, entering restraining orders or temporary injunctions or taking such other actions,
including the acceptance of satisfactory performance bonds, the creation of receiverships
and the appointment of qualified receivers and the enforcement of constructive trusts, as
the court deems proper.

H. After a determination of liability such orders may include, but are not limited
to:

1. Ordering any person to divest himself of any direct or indirect interest in any
enterprise.

2. Imposing reasonable restrictions, including permanent injunctions, on the future
activities or investments of any person including prohibiting any person from engaging in
the same type of endeavor or conduct to the extent permitted by the constitutions of the
United States and this state.

3. Ordering dissolution or reorganization of any enterprise.

4. Ordering the payment of actual and consequential damages, as well as costs of
suit and reasonable attorney fees, to those persons injured by the conduct described in
this section. The court or jury may order the payment of punitive damages under common
law principles that are generally applicable to the award of punitive damages in other
civil actions. The court may order the payment of reasonable attorney fees that do not
exceed the total amount of compensatory damages that are awarded in the action, except
that the court may award additional attorney fees in connection with the action after the
court has reviewed and approved a request for additional attorney fees to the plaintiff.

5. Ordering the payment of all costs and expenses of the prosecution and
investigation of the conduct described in this section, civil and criminal, incurred by
the state or county as appropriate to be paid to the general fund of this state or the
county that incurred such costs and expenses.

I. A defendant convicted in any criminal proceeding is precluded from subsequently
denying the essential allegations of the criminal offense of which he was convicted in
any civil proceeding. For the purposes of this subsection, a conviction may result from a
verdict or plea, including a plea of no contest.

J. A person who files an action under this section shall serve notice and one copy
of the pleading on the attorney general within thirty days after the action is filed with
the superior court. The notice shall identify the action, the person and the person's
attorney. Service of the notice does not limit or otherwise affect the right of this
state to maintain an action under this section or intervene in a pending action nor does
it authorize the person to name this state or the attorney general as a party to the
action. Upon receipt of a complaint the attorney general shall notify the appropriate
licensing agency.

K. The initiation of civil proceedings pursuant to this section shall be commenced
within two years after actual discovery of the cause of action.

L. Except for the standard of proof provided in subsection H, paragraph 4 of this
section, the standard of proof in civil actions brought pursuant to this section is the
preponderance of the evidence.

M. Except in cases filed by a county attorney, the attorney general, upon timely
application, may intervene in any civil action or proceeding brought under this section
if the attorney general certifies that in his opinion the action is of special public
importance. Upon intervention, the attorney general may assert any available claim and is
entitled to the same relief as if the attorney general had instituted a separate action.

N. In addition to the state's right to intervene as a party in any action under
this section, the attorney general may appear as a friend of the court in any proceeding
in which a claim under this section has been asserted or in which a court is interpreting
section 46-453 or this section.

O. A civil action authorized by this section is remedial and not punitive and does
not limit and is not limited by any other civil remedy or criminal action or any other
provision of law. Civil remedies provided under this title are supplemental and not
mutually exclusive.

P. The cause of action or the right to bring a cause of action pursuant to
subsection B or E of this section shall not be limited or affected by the death of the
vulnerable adult.

Q. For the purposes of this section, "enterprise" means any corporation,
partnership, association, labor union or other legal entity, or any group of persons
associated in fact although not a legal entity, that is involved with providing care to a
vulnerable adult.