Articles Posted in Elder Abuse

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

Further, as we had previously noted, EF makes no allegations of any negative impact on any specific resident caused by the alleged under staffing and, thereby, fails to show a causal link between an individual resident’s specific needs and the services received, regardless of the nursing hours supplied at that time. This is clearly inconsistent with DHS’s enforcement policies as stated in their policy guidelines for enforcing the staffing level requirements.

Equally significant is the fact that, by merely asserting a lump sum amount that Defendants allegedly should have … spent on staffing, and suggesting that amount should be distributed to residents without linking inadequate staffing to any allegations of specific incidents of fewer than 3.2 hours of service for a patient on a particular day, or allegations of harm suffered by individual residents, EF is in fact seeking disgorgement – a remedy clearly not allowed under Section 17200. In contrast to restitution, the remedy of disgorgement is available only in certified class actions and not in a representative action brought by a private party under the UCL. Kraus, supra, at 126-127; see, also, Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148-50.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

LEGAL ARGUMENT
(A) Restitution Is Not An Appropriate Remedy in This Case

When EF set out to attack the nursing home industry under the guise of consumer protection, it initially attempted to link its broad and unsupported allegations of understaffing with potential negative patient outcomes based on certain studies. However, EF has never alleged that any resident received fewer than 3.2 hours of nursing care on any particular day or that the residents in Petitioner’s long-term care facilities have suffered any adverse care outcomes as a result of the alleged failure to comply with the staffing requirements stated in Health & Safety §1276.5. Instead, EF acknowledged that it “planned to develop” the information to support more specific allegations of adverse patient outcome through discovery. That is, EF has pursued an intentional course of action to make broad, conclusory allegations first and attempt to develop the facts to support such allegations through discovery fishing expeditions later.

EF’s complaint against the SunCare defendants (“Complaint”) presents the request for restitution without identifying the interests of a single resident. The Complaint is entirely devoid of any allegations that any particular resident received fewer than 3.2 nursing hours of services on any given day. Nowhere does EF explain “the nature of the vested interest” that such individuals might have in monies to be restored under Business and Professions Code Section 17203.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE
INTRODUCTION

In a dismissive 2 1/2- page document, Plaintiff ELDER FOUNDATION (“Plaintiff” or “EF”) objects to the Motion to Strike Restitution Claim filed by Defendants SunCare, LLC, et al. (“Defendants” or “SunCare”) on the grounds that the issues raised by Defendants have been ruled on by this Court and that the motion raises no new arguments with regard to Section III A (restitution not an available remedy) and B (restitution inappropriate for Medi-Cal/Medicare patients). Plaintiff, therefore, ostensibly acting in the interest of judicial economy, simply incorporates its opposition to the Covenant Care and Health Care motions previously heard by this Court and asks the Court to come to the same conclusion it did with regard to these motions.

As to Defendants’ Section III C argument that claims arising out of actions that occurred during Defendants’ bankruptcy reorganization are barred, Plaintiff asserts that because the argument is supported by a declaration, the Court must deny the motion.

Plaintiff’s blase treatment of SunCare’s motion ignores not only the additional arguments made by Defendants to support both its demurrer and the motion to strike the restitution claim, but fails to acknowledge that a declaration can be used under certain circumstances.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

e. The PlaintifFs Should Have the Benefit of Delayed Accrual of the Elder Abuse Claims.

The principal purpose of the rule permitting postponed accrual of certain causes of action is to protect aggrieved parties who, with justification, are ignorant of their right to sue. [Seelenfreund v. Terminix of Northern Calif., Inc., supra, 84 Cal. App. 3d at 138, see Leaf v. City of San Mateo (1980) 104 Cal. App. 3d 398, 406, the rule applies where it is manifestly unjust to deprive plaintiffs of a cause of action before they are aware that they have been injured Two common themes support the delayed discovery rule:

First, the discovery rule is applied to actions in which it is generally difficult for plaintiffs to immediately detect or comprehend the breach or the resulting injuries (e.g., where the cause or injuries are hidden). [E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 CA4th 1308, 1318] Second, courts have relied on the nature of the relationship between defendant and plaintiff to explain application of the delayed accrual rule (e.g., where confidential or fiduciary relationships are involved). [See Parsons v. Tkkner (1995) 31 CA4th 1513, 1526]
In this case the plaintiffs had to learn about why Paul Steinford died. They could not learn it from the medical records alone but rather had to have an expert interpret those for them. This is exactly the circumstances where the court can develop the rule to achieve justice.
The common law discovery rule, where applicable, indefinitely delays accrual of a cause of action until the plaintiff discovers or reasonably has cause to discover the facts constituting it.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

d. The Doctors Are Accused by Sufficiently Allegations of Reckless Neglect Under the Elder Abuse Act.

To establish elder abuse a plaintiff must show a defendant was guilty of recklessness, among other possibilities. [Benun v. Sup.Ct. (Country Villa East)] (2004) 123 Cal. App. 4th 113, 120] Then the controlling statute of limitations is for personal injury, hence two years. [Ibid]
The Second Cause of Action states that the doctors were reckless and showed a deliberate disregard of a high probability that injury would occur. That is recklessness. [Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1019 (citing other cases)]

In 1991, in order to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults (Welf. & Inst. Code, § 15600, subd. (j)), the Legislature added Welfare and Institutions Code section 15657 to the Act.

That section makes available, to plaintiffs who prove especially egregious elder abuse to a high standard, certain remedies in addition to all other remedies otherwise provided by law (Welf. & Inst. Code, § 15657). [1] Specifically, a plaintiff who proves by clear and convincing evidence that a defendant is liable for physical abuse, neglect, or financial abuse (as these terms are defined in the Act), and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of such abuse, may recover attorney fees and costs. (Id., subd. (a), incorporating by reference Welf. & Inst. Code, §§ 15610.30, 15610.57, 15610.63.)
Covenant Care, Inc. v. Superior Court (Inclan) (2004) 32 Cal.4th 771, 779-780.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Tina Steinford, a distraught daughter of Paul Steinford, decided that her father should not have suffered and died but only could guess why. She did not have any material facts; did not have any medical records until April 2007; could not afford hiring a qualified doctor to investigate; and has no training in medicine or nursing. Her father was 84 years old, so a reasonable person does not normally suspect wrong doing or premature death.

She did not know and the medical records did not disclose the known side effects of the psychotropic drugs administered. Rather, those records refer to failures of the respiratory system, failure of the kidneys, sepsis and, unltimately, heart failure. Upset and too poor to pay for professionals, she continuously sought help but did not find it until after she contacted the Citizens Commission on Human Rights. A referral from that group to this counsel lead to the prompt involvement of a doctor that understands that psychotropic drugs poison older people. That immediately lead to the filing of this lawsuit.

The history of the delayed discovery rule preceding the passage of me three year outer limit in 1975 evidenced the possibility that the commencement of the running of the statute might be deferred indefinitely. [Brown v. Bleiberg (1982) 32 Cal. 3d 426, 432] And so in the Brown case a woman that had a foot surgery for corns sued her doctor twelve years later because unknown to her he removed bones.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

Finally, in 2007, after searching diligently to find help to review the suspected claim, Ms. Steinford found her present counsel who agreed to review the matter, and upon reading the records helped retain a competent physician who expeditiously reviewed the records, an opinion was rendered of negligence such that current counsel could on May 2, 2007, for the first time properly issue notices pursuant to Code of Civil Procedure section 364.

Prior to the actions undertaken by current counsel Ms. Steinford did not have knowledge about the negligent causation ofher father’s death sufficient to bring an action sounding in medical negligence or elder abuse. Based upon these facts the statute of limitations for both medical negligence and elder abuse based upon medical negligence should be equitably tolled to allow this action to proceed or in the alternative the defendants should be equitably estopped from asserting the statute of limitations because of the false explanation of the course of death.

In addition to these facts alleged to show diligent pursuit of the factual basis to bring a claim, in this brief the plaintiffs also say:

This case is about the poisoning of Paul Steinford by means of multiple psycho tropic drugs that should never have been used but certainly should have been stopped when the symptoms started that lead to his death. Many of those symptoms are disclosed by the drug companies as side effects of the psycho tropic drugs. All of the treating doctors should have known that the drugs had those known side effects that included symptoms that Mr. Steinford exhibited to them including difficulty swallowing and toxicity.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

The legislature, in codifying the discovery rule, has also required plaintiffs to pursue their claims diligently by making accrual of a cause of action contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause. (See, e.g., Code Civ. Proc, §§ 340.1, subd. (a) [ within three years of the date the plaintiff discovers or reasonably should have discovered ], 340.15, subd. (a)(2) [ [w]ithin three years from the date the plaintiff discovers or reasonably should have discovered ], 340.2, subd. (a)(2) [ [w]ithin one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known ], 340.5 [ one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered ].)

This policy of charging plaintiffs with presumptive knowledge of the wrongful cause of an injury is consistent with our general policy encouraging plaintiffs to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395.)

Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

DEFENDANTS ARE NOT PREJUDICED IF THE TRIAL COURT GRANTS PLAINTIFF’S MOTION TO AMEND ACCORDING TO PROOF AT TRIAL.

In exercising its broad discretion, the court is guided by whether the opposing party will be prejudiced by the amendment. City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.

The Defendants will not be prejudiced if the trial court were to grant Plaintiff’s Motion to Amend According to Proof at Trial, as the Defendants have been placed on notice of Plaintiff’s elder abuse contentions as to both Dr. Green and Dr. Black as set forth in Plaintiff’s Complaint, First Amended Complaint, and Second Amended Complaint.

This case was filed on September 22, 2006, wherein the Plaintiff had asserted a cause of action against Dr. Green and Dr. Black for Elder Abuse and Willful Misconduct. Defendants’ Demurrer and Motion to Strike Plaintiff’s Second Amended Complaint was not heard and ruled upon until September 4, 2007. Therefore, the Defendants had one year to conduct discovery on Plaintiff’s contentions for Elder Abuse and Willful Misconduct.

Further, the Defendants have been provided all of Dr. Brown’s opinions regarding Dr. Green and Dr. Black, including his opinions on elder abuse relating to the two defendants.

The Plaintiffs have made their intentions clear to the Defendants immediately after the deposition of Dr. Brown that based on Dr. Brown’s deposition testimony, the Plaintiffs intended to request the Trial Court to amend Plaintiff’s operative complaint to include a cause of action for Elder Abuse and Willful Misconduct against Defendants Dr. Green and Dr. Black and to include a prayer for punitive damages according to proof.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)

The Complaint Properly Explains the Basis for Tolling (Due to Delayed Discovery) and Should be Allowed to Proceed.

The delayed discovery rule allows a plaintiff to bring a claim beyond the one year limitation period for medical malpractice if the criteria is met. The issue in this case is whether a plaintiff who does not have a reasonable basis for suing within one year and is trying diligently to determine the facts is precluded from suing later when the facts are discovered within the outer three year limit. The case law says that the plaintiffs can proceed.

A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Code Civ. Proc, § 312 [ Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued ]; Norgart, supra, 21 Cal.4th at p. 397.) In other words, statutes of limitation do not begin to run until a cause of action accrues. (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 487;

Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 806.)

The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have “information of circumstances to put [them] on inquiry” or “if they have” the opportunity to obtain knowledge from sources open to [their] investigation.

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