Daily Blast February 23, 2015

The Court of Appeal, Second Appellate District, Division Six (LA) published its opinion in Lemaire v. Covenant Care California (Feb. 23, 2015, B248672) __ Cal.App.4th___, analyzing Health and Safety Code section 1430, subdivision (b). The court held that: (1) patients may sue nursing facilities under section 1430, subdivision (b) for violation of federal and state regulations requiring complete and accurate health care records and (2) statutory damages under section 1430, subdivision (b) may not exceed $500 per action. (Slip opn., p. 1.)

The plaintiff sued the defendant skilled nursing facility contending her mother died due to inadequate care she received at the facility. The plaintiff alleged causes of action for wrongful death, elder abuse and violation of patients’ rights under Health and Safety Code section 1430, subdivision (b). (Slip opn., p. 2.) The jury found against the plaintiff on her wrongful death cause of action. The jury, however, found for the plaintiff on the patients’ rights cause of action. The jury found that the defendant did not provide: (1) complete and accurate health records and (2) meaningful and informative nurses progress notes as often as the patient’s condition warrants. The jury awarded $500 statutory damages for each violation resulting in a $270,000 award. The trial court then awarded the plaintiff $841,842 in attorney fees. (Ibid.) The defendant appealed.

The Court of Appeal first held that patients have a right to sue under section 1430, subdivision (b), for violation of regulations requiring the defendant to have “complete and accurate health records” and “meaningful and informative nurses’ progress notes.” (Slip opn., p. 3.) According to the court, section 1430, subdivision (b), provides a private right of action to sue for violation of “any ‘right provided for by federal or state law or regulation.’” (Ibid., italics in original.) The private right of action is not limited to regulations that expressly include a resident’s right to sue for the particular regulatory violation. (Id. at p. 4 citing Shuts v. Covenant Holdco LLC (2012) 208 Cal.App.4th 609, 624.) Thus, “[t]he absence of express language in the regulations about a private right of action does not bar litigation to enforce regulatory compliance in this statutory scheme.” (Slip opn., p. 4.) “Where the regulations directly involve the quality of patient health care, they involve patients’ rights that patients may enforce through litigation.” (Id. at p. 5.)

The court then held that section 1430, subdivision (b), does not permit an award for $500 damages for each violation, agreeing with Division Four’s holding in Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 135. (Slip opn., p. 6.) According to the court, “[t]he phrase ‘up to five hundred dollars’ refers to ‘the suit’ to ‘be brought.’ It is a liability cap for the action. Had the Legislature intended an award of statutory damages for each violation it would have used the phrase ‘up to $500 per violation.’” (Ibid., italics in original.) The court concluded that the award had to be reversed because the statutory damages award exceeded the $500 limit. (Id. at p. 7.) The court also vacated the attorney fee award and remanded to the trial court for a redetermination of the amount of attorney fees solely based on the result achieved under section 1430, subdivision (b). (Id. at p. 8.)