Articles Posted in Elder Abuse

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Statutory Damages Under Section 1430(b)

Section 1430(b) entitles each affected resident to recover up to $500 for each violation. Each day that a facility fails to meet the minimum and/or adequate nurse staffing requirements constitutes a separate violation for each resident in the facility on the understaffed day. For days when the facility failed to provide at least 3.2 PPD, plaintiffs will ask the jury to find a single violation for each patient in the facility, as opposed to two violations for failing to provide adequate staffing (§1599.1) and minimum staffing (§1276.5).

Although plaintiffs need not prove personal injury or actual harm to recover under Section 1430(b), that does not mean that defendants’ understaffing resulted in only hypothetical harm, as defendants contend. Through testimony from class members, current and former employees, and expert witnesses, plaintiffs will show that understaffing results in real and tangible consequences.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

The Evidence of Understaffing

Plaintiffs’ evidence of understaffing is based primarily on Key Factor Reports prepared each day by ABC’s facilities at the express direction of ABC Healthcare, LLC. ABC’s witnesses have uniformly testified that the Key Factor Report is the only document kept by the facilities that tracks on a daily basis whether they are in compliance with state law. These Key Factor Reports show more than 10,900 days under 3.2 PPD. An additional 550 violations are confirmed in deficiencies and citations issued by the Department of Public Health (previously DHS). This evidence is corroborated through defendants’ admissions in deposition testimony and email.

In addition, ABC destroyed and/or refused to produce Key Factor Reports for roughly 9,250 days. Because defendants admittedly destroyed and have refused to produce these Key Factor Reports, the Court should deem ABC to have failed to provide adequate staffing for each of the days for which no Key Factor Report was produced.

On November 17, 2010, ABC produced, for the first time, its own revised “PPD Analysis.” This analysis has apparently been a work in progress for months (if not years).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Plaintiffs’ Section 1430(b) Claim
Legal Background

Section 1430(b) creates a private right of action for residents of ABC nursing facilities to recover up to $500 for each facility’s violation of any state or federal law or regulation. Under plaintiffs’ single enterprise allegations, all defendants are jointly and severally liable for their violations of Section 1430(b) and the other claims asserted.

Plaintiffs’ Section 1430(b) claim is predicated on defendants’ violations of both (1) Health & Safety Code section 1276.5, which requires each facility to provide a minimum of 3.2 nursing hours per patient (3.2 PPD), and (2) Health & Safety Code section 1599.1, which imposes the additional obligation to employ an adequate number of qualified personnel (including nursing personnel) to carry out all of the functions of the facility.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

PLAINTIFFS’ TRIAL BRIEF
OVERVIEW OF PLAINTIFFS’ CLAIMS

This class-action lawsuit concerns chronic understaffing at twenty-two California skilled nursing facilities operated by ABC Healthcare, LLC and its parent company, ABC Healthcare Group, Inc (hereinafter “ABC”). Plaintiffs are current and former residents of ABC’s nursing homes (Resident Class) and family members that paid money to place residents at those facilities (Family Member Class). Several of these facilities are located in Sacramento.

Plaintiffs allege that ABC failed to meet California’s minimum staffing requirements and concealed from the consuming public the fact that its facilities were understaffed. These and related allegations support plaintiffs’ four causes of action based on violations of: (1) Health and Safety Code section 1430(b); (2) the Consumers Legal Remedies Act (CLRA); (3) unlawful, unfair, and fraudulent business practices under California’s Unfair Competition Law (UCL) (Bus. & Prof. Code, §§ 17200 et seq.); and (4) California’s False Advertising Law (FAL) (Bus. & Prof. Code, §§ 17500 et seq.).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

As to the motion attacking Plaintiff’s claim of wilful misconduct, XYZ Care fails in the fundamental purpose of providing Plaintiff of any form of notice as to the issues presented by the motion for summary adjudication. The issue, as set forth (“plaintiffs have no evidence that moving defendant committed any intentional wrongful conduct toward plaintiffs’ decedent”) is too broadly stated to provide any meaningful notice which would comply with the due process aspect of the separate statement as expressed in Elcome and San Diego Watercrafts, supra. Defendants’ initial burden in bringing a motion for summary adjudication is to show that one or more elements of claim cannot be established. Marron, supra.

Accordingly, in compliance with the obligation of the moving party to provide adequate notice, in the notice of motion and Separate Statement, it is incumbent to frame the issues in such a manner that Plaintiffs are informed what element or elements of the claim Defendant asserts the purported undisputed facts prove cannot be established. Otherwise, Plaintiffs (and the court) is left to speculate what element of the claim (i.e., what element of Wilful Misconduct, – duty, breach, knowledge of peril, knowledge of probable injury, failure to avoid peril, causation or damages) is under scrutiny, and for which opposing evidence must be presented.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

DEFENDANT’S STATEMENT OF ISSUES IS DEFICIENT AS TO THE CLAIM FOR WILFUL MISCONDUCT AND ACCORDINGLY THE MOTION AS TO THAT CLAIM MUST BE DENIED

In a motion for summary adjudication, the moving party must specifically state in their motion and Separate Statement the specific causes of action, defenses, issues of duty and or claims of damages upon which summary adjudication is sought. Moreover, a defendant bringing a motion for summary adjudication “must … show one or more elements of a cause of action cannot be established.” Marron v. Superior Court (2002) 104 Cal.App.4th 388, 392. The purpose of the Separate Statement is to inform the opposing party of what issues and undisputed material facts they must address in order to defeat the motion. Elcome v. Chin (2003) 110 Cal.App.4th 310, 322.

Where a remedy as drastic as summary judgment is involved, due process requires a party to be fully advised of all the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

THE SEPARATE STATEMENT’S FAILURES TO COMPLY WITH RULE 3.1350 SHOULD LEAD THE COURT TO DENY THE MOTION

The separate statement contains no specific reference to evidence, making the purported facts impossible to affirm or dispute.

Rule 3.1350, California Rules of Court, provides:

(d) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

Instead of setting forth a specific reference to portions of the interrogatories and answers as evidence in support of the claimed undisputed fact, movants were content to generally refer to the discovery responses in general, and to summarize and characterize the evidence. The tactic seems to be to claim the absence of facts by offering movants’ counsel’s summary of discovery.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

The separate statement provides what it purports to be a summary of responses to interrogatories 25 and 45, but fails to make reference to the specific portions of the lengthy discovery responses it purports to summarize. Moreover, there is no reference to or summary of the voluminous medical records with Plaintiffs response refers to and incorporates under C.C.P. §2030.230. Accordingly, the separate statement is deficient. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers. California Rules of Court, Rule 3.1350(d).

It is not the court’s (or Plaintiffs’) responsibility to pour over lengthy documents to find the evidence on which defendants rely to determine whether defendants’ characterization of the interrogatories and plaintiffs’ responses, are accurate. The “Golden Rule of Summary Adjudication” is: “If it is not set forth in the separate statement, it does not exist.” Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208. Defendants’ deficient separate statement makes the in determining the presence or absence of material issues of fact extremely difficult if not impossible. If defendants had asked discrete questions requesting factual support for each element of each cause of action and provided the response thereto, perhaps it would be a more a manageable task.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Further, the motion completely ignores and fails to address the fact that Plaintiffs’ discovery responses include exercise of Plaintiffs’ right to respond to the interrogatories by reference to documents where the response calls for a compilation, audit, abstract or summary of records. See C.C.P. §2030.230. After setting forth seven pages of facts, Plaintiffs discovery responses state:

A further response to this interrogatory would require a compilation, abstract, audit or summary of the medical records of Paul Hill’s health care providers, the burden and expense of preparation of which would be substantially the same for the propounding party, and accordingly Plaintiff responds under C.C.P. §2030.230 and refers to the medical records of Paul Hill, including the records of St. Edna’s Subacute and Rehabilitation Center, and Fountain Valley Regional Hospital and Medical Center, Prairie La Vida Medical Group, Starcare/Gateway Medical Group, and PacifiCare/Secure Horizons.

The moving papers are completely devoid of any evidence that the records referred to in Plaintiffs’ discovery responses are factually devoid sufficient to meet their burden. To the contrary, the medical records clearly establish XYZ Care’s knowledge of Mr. Jackson’s condition, knowledge that failure to address his care needs would subject him to severe injury and death, knowledge of his deteriorating condition, and complete failure by XYZ Care’s staff to take any action, as required by applicable federal and state regulations standards of care, to avoid the known perils to Mr. Jackson.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

PLAINTIFFS’ DISCOVERY RESPONSES ARE NOT FACTUALLY DEVOID AND DO NOT ESTABLISH THE LACK OF EVIDENCE OF ANY ELEMENT OF ANY CLAIM, MOREOVER, DEFENDANT XYZ CARE’S MOTION MISCHARACTERIZES PLAINTIFF’S DISCOVERY RESPONSES, FAILS TO ADDRESS PLAINTIFFS’ EXERCISE OF THEIR RIGHT TO REFER TO RECORDS IN THEIR RESPONSE, AND INCLUDES NO AFFIRMATIVE EVIDENCE THAT THE FACTS SET FORTH IN PLAINTIFFS’ DISCOVERY RESPONSES (AND DOCUMENTS REFERRED TO THEREIN) ARE INSUFFICIENT TO ESTABLISH ANY ELEMENT OF PLAINTIFFS’ CLAIMS

Plaintiffs recognize that a defendant moving for summary adjudication may rely on “factually devoid” discovery responses to shift the burden of proof. C.C.P. §437c(p)(2). Circumstantial evidence supporting a defendant’s summary judgment motion can consist of factually devoid discovery responses from which an absence of evidence can be inferred, but “the burden should not shift without stringent review of the direct, circumstantial and inferential evidence.” Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 83.

The moving papers concede that Plaintiffs’ discovery responses include seven pages of facts which support the claims for which defendants seek summary adjudication, including two pages which specifically pertain to XYZ Care.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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