Sacramento Man Suffers Elder Abuse At Local Skilled Nursing Facility, Part 3 of 7

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.

It is based on the payroll data for nursing staff personnel at each facility during the Class Period, supplemented by hours of additional personnel (such as therapy aides ) that defendants claim should be counted in the total nursing hours per patient day analysis.

Defendants’ attempt to include non-nursing personnel in a calculation of the nursing hours per patient day is inconsistent with well-established custom and practice in the industry, contrary to more than 20 years of interpretation and practice by the Department of Public Health, and directly undercut by testimony from ABC’s own Persons Most Qualified (PMQ) witnesses, who identified the specific categories of personnel who can be counted for purposes of the 3.2 PPD calculation. In fact, this testimony from ABC’s PMQs binds the corporation and cannot be controverted by counsel or ABC’s experts. (Code of Civil Proc. § 2025.620(b); CEB, California Discovery Practice, § 5.40; Reilly v. Natwest Markets Group, Inc. (2d. Cir. 1999) 181 F.3d 253, 268.)

But even with these unsupported additional hours, defendants own analysis still shows thousands of days under 3.2 PPD. If the non-nursing personnel hours are eliminated, defendants’ own analysis shows thousands of additional days under 3.2 PPD. In fact, defendants’ own calculations show roughly the same number of violations as the Key Factor Reports (taking into account the roughly 9,250 days for which no Key Factors were produced). That fact, along with evidence that ABC itself used the Key Factor Reports to make staffing and other business decisions, undercuts defendants’ theory that the Key Factor Reports are unreliable.(See Part 4 of 7.)

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

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