Daily Blast June 5, 2013

On June 5, 2013, in the case of Nevarrez v. San Marino Skilled Nursing and Wellness Centre (June 5, 2013, B235372) ___ Cal.App.4th ___, the Court of Appeal, Second Appellate District, Division Four (L.A.), issued an important opinion addressing several issues that often arise in elder abuse cases. One of the most significant aspects of the court’s opinion is toward the end of the opinion where the court holds that Health and Safety Code section 1430 authorizes penalties of up to the statutory maximum of $500, not for each violation. (Slip opn., p. 25.) The majority of the court’s opinion involves the court’s finding that the negligence and elder abuse portions of the verdict must be reversed because the trial court abused its discretion by admitting into evidence a citation and statement of deficiencies issued by the state Department of Public Heath (DPH) against defendants nursing home, which tainted the negligence and elder abuse verdicts. (Id. at pp. 18, 23-24.) Finally, the Court of Appeal held that the trial court properly instructed the jury with CACI No. 201 regarding the clear and convincing standard of proof. (Id. at pp. 5-7.)

Background

Plaintiff, a 79-year-old man, sustained injuries after falling in the bathroom while residing at defendants nursing home. (Slip opn., pp. 2-3.) Plaintiff sued for elder abuse, negligence, and violation of the Patient’s Bill of Rights. (Id. at p. 4.) In a special verdict, the jury found six violations of the Patient’s Bill of Rights based on inadequate staffing. The jury also found eight violations based on the failure to provide plaintiff with material information. (Ibid.) On the elder abuse cause of action, the jury found by clear and convincing evidence that plaintiff’s injuries were the result of reckless neglect. The jury did not find fraud, malice or oppression. (Ibid.) The jury awarded $1.1 million in past medical expenses, $200,000 for future medical expenses, and $3 million in general damages. (Ibid.) After several post trial motions, the court awarded plaintiff $7,000 for violations of the Patient’s Bill of Rights—$500 for each of the 14 violations. (Ibid.) The trial court denied defendants’ motions for new trial and judgment notwithstanding the verdict. (Ibid.) Defendants appealed. (Ibid.)

Health and Safety Code Section 1430, subdivision (b), Permits a Maximum Civil Penalty of $500 Regardless of How Many Rights Are Allegedly Violated

The Court of Appeal held that in a civil action, Health and Safety Code section 1430 authorizes the imposition of a range of penalties up to the statutory maximum of $500, not for each violation. (Slip opn., p. 25.) The court noted that the language of the statute does not authorize an award of $500 per violation, but states that a civil action may be brought against a licensee of a facility that violates “rights” of a resident and that the statute authorizes a civil penalty of “up to” $500. Thus, the court concluded that “[t]he statutory language indicates $500 is the maximum that can be recovered in a civil action under this provision, regardless of how many rights are violated or whether such rights are violated repeatedly.” (Id. at p. 25.) The court further held that “$500 is not intended to be a flat penalty, but rather the maximum amount in a range of possible penalties.” (Ibid.) The court noted that this interpretation is consistent with section 1424, which authorizes a range of penalties “’for each citation,’ rather than for each violation, since one citation my cover more than one violation.’” (Ibid.) Therefore, the court reversed the $7000 award in penalties for the violation of the Patient’s Bill of Rights because it was over the statutory maximum. (Ibid.)

The court’s holding with respect to the civil penalty is important for two reasons. First, and most obviously, this decision clearly refutes claims from the plaintiffs’ bar that facilities may be liable for $500 per violation. Second, the court uses strong language confirming that 1430, subdivision (b), authorizes a maximum penalty.  This language may be used to support defense arguments that causes of action under 1430, subdivision (b) are subject to the one-year statute of limitations in Code of Civil Procedure section 340, subdivision (a) for statutory penalties, rather than the three-year statute of limitations of Code of Civil Procedure section 338, subdivision (a), for a “liability created by statute.”

Evidence of Citation and Statement of Deficiencies is Not Admissible

The court also held that the trial court abused its discretion in admitting the citation and statement of deficiencies.  (Slip opn., p. 18.) The court determined that the trial court erroneously relied on Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233 (Norman), to admit the citation. (Id. at p. 15.) Although the Department of Health Services investigator may testify as to his conclusions, “Norman does not render such testimony per se admissible.” (Ibid.) The court also rejected plaintiff’s argument that the citation is admissible under the official records exception in Evidence Code section 1280. (Id. at p. 16.) The citation lacked trustworthiness because it relied upon other sources of information. (Ibid.) The most prejudicial parts of the citation were the investigator’s conclusions and the plan of correction. (Ibid.) Moreover, the admission of the citation created a risk that it would be used to establish not only that a regulation was violated for the purposes of negligence per se, but also to insinuate that defendants must be liable. (Id. at p. 17.)

The appellate court also concluded that it is reasonably probable that the citation influenced the jury’s decision on negligence and elder abuse. (Slip opn., pp. 21, 24.) The jury was improperly instructed that it could find defendants negligent based solely on the violations. Counsel incorrectly represented to the jury that DPH already determined the negligence issues. (Ibid.) Further, plaintiff’s counsel insinuated that the citation impeached the credibility of defendants’ expert witnesses because the citation was issued from the state. (Ibid.) The citation was offered as essentially an endorsement by the government against defendants and improperly shifted responsibility for decision on this issue to the government. (Id. at pp. 21-22.) Plaintiff’s counsel improperly argued to the jury that the DPH determined the issue of causation. (Id. at p. 23.) According to the court, the citation tainted the negligence and elder abuse verdict. (Id. at pp. 23-24.) As a result, the court reversed those two verdicts and the jury’s award of damages and the award of attorneys’ fees. (Ibid.)

CACI No. 201 Definition of the Standard of Proof for Clear and Convincing Evidence is Appropriate

Finally, the court also approved the use of CACI No. 201 to define the standard of proof for clear and convincing evidence. (Slip opn., pp. 6-7.) The court rejected defendants’ contentions that “the phrase ‘highly probable that the fact is true’ in CACI No. 201 is misleading and unnecessarily limited without additional language . . . derived from In re Angelia P. (1981) 28 Cal.3d 908.” (Id. at p. 6.) Defendants’ proposed that the instruction be changed to: “Clear and convincing evidence requires a finding of high probability that the evidence be so clear as to leave no substantial doubt; sufficiently strong as to command the unhesitating assent of every reasonable mind.” (Id. at p. 6.) The appellate court held that the definition of the standard of proof for clear and convincing in CACI No. 201 is appropriate and should not be changed. (Id. at pp. 6-7.) The court reasoned that the proposed additional language would impose a burden approaching the criminal burden of proof beyond a reasonable doubt. (Id. at pp. 6-7.) Neither In re Angelia P. nor more recent authority mandated augmentation of CACI No. 201. (Id. at p. 7.) 

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