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WINNING THE ELDER ABUSE CASE IN CALIFORNIA presented by Jeffrey A. Walker Walker & Mann 10832 Laurel Street, Suite 204, Rancho Cucamonga, CA. 91730 Phone:

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Presentation on theme: "WINNING THE ELDER ABUSE CASE IN CALIFORNIA presented by Jeffrey A. Walker Walker & Mann 10832 Laurel Street, Suite 204, Rancho Cucamonga, CA. 91730 Phone:"— Presentation transcript:

1 WINNING THE ELDER ABUSE CASE IN CALIFORNIA presented by Jeffrey A. Walker Walker & Mann Laurel Street, Suite 204, Rancho Cucamonga, CA Phone: Fax:

2 The Elder Abuse Case: Is It Winnable? Juror Biases Poor Witnesses Sympathetic/Helpless Victims Poor/Falsified Record Keeping Disgruntled Employees DHS Issues Profits over PeopleWhite Collar Crimes Understaffing Ugly Pictures

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4 Winning Trial Strategies Prepare, Condition and Commit Jury Through Selection Process Emphasize Law, Duty and Oath over Sympathy, Prejudice, and Passion Humanize Witnesses and Defendant (why do you do what you do?) Remember the Human Drama Neutralize and Utilize Former Employees Attack and Explore DHS Actions Sterilize Liability Case Through Bifercation Limit Scope of Expert Testimony

5 Pretrial Lets Be Fair Assume TruthWhat didnt happen What Else Can Be Shown (video, formers, pictures

6 Elder and Dependent Adult Civil Protection Act: THE RISK Threat to MICRA (notwithstanding ) Broad definitions (abuse can be lesser showing than professional negligence) Enhanced remedies (attorneys fees, survival damages, uncapped general damages, one step from punitive damages) Unfavorable findings and interpretations (BAJI creates new tort) Social stigma

7 Elder and Dependent Adult Civil Protection Act: THE RISK Threat to MICRA (notwithstanding ) Broad definitions (abuse can be lesser showing than professional negligence) Enhanced remedies (attorneys fees, survival damages, uncapped general damages, one step from punitive damages) Unfavorable findings and interpretations (BAJI creates new tort) Social stigma

8 Elder and Dependent Adult Civil Protection Act: DEFINITIONS Elder: 65 and older ( ) Dependant Adult: 18 to 65, physical/mental limitations that restrict ability to carry out normal activities or protect rights ( ), or is admitted as an inpatient to a 24-hour health facility (H&S 1250, , ) Abuse: physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment with resulting physical harm or pain or mental suffering ( (a))

9 Elder and Dependent Adult Civil Protection Act: BAJIS NEW (NON-MICRA) TORT Abuse by Neglect -Negligent failure to exercise that degree of care that a reasonable person in a like position would, or -Failure to provide medical care for physical/mental health needs, or -Failure to prevent malnutrition or dehydration (BAJI 7.41, 16.25, Welfare and Institutions code section ) Professional Negligence -Have and use skill ordinarily possessed by reputable physicians in similar locality under similar circumstances, and -Use reasonable diligence and best judgment (BAJI ) -Error in judgment not necessarily negligent (BAJI 6.02) -Alternate methods of treatment acceptable even if proven wrong (BAJI 6.03) -Jury must rely on expert testimony, including that of the defendant (BAJI 6.30)

10 Elder and Dependent Adult Civil Protection Act: ENHANCED REMEDIES (W&I 15657) PROVE: Physical abuse, fiduciary abuse, neglect Clear and convincing evidence guilty of recklessness, oppression, fraud, malice GET: General damages (not limited by MICRA) Attorneys fees/costs (Lodestar factors and ) Survival damages (to $250,000)

11 Elder and Dependent Adult Civil Protection Act: RECKLESSNESS …a state of culpability greater than ordinary negligence. It is conduct that is undertaken with deliberate disregard for, or with a conscious disregard of, the fact that there is a high degree of probability that the elder or dependent adult will sustain injury as a result of the conduct. (BAJI 7.47)

12 Elder and Dependent Adult Civil Protection Act: MICRA ISSUES Delaney v. Baker C.C (general damage cap) issue C.C.P Community Care Covenant Care C.C (punitive damages) Mack v. Soung Bergman v. Chin Gregory v. Beverly

13 Elder and Dependent Adult Civil Protection Act: ABUSE v. PUNITIVE DAMAGES Enhanced Remedies (W&I 15657) Clear and convincing evidence Oppression Fraud Malice Recklessness Punitive Damages (C.C. 3294) Clear and convincing evidence Oppression Fraud Malice

14 Elder and Dependent Adult Civil Protection Act: TRENDS Reporting issuesW&I and People v. Davis Unfair business practices--Business & Professions Code sections and Criminal prosecution, Penal Code section 368 Dual role physicians (treating physician/medical director) Collateral providers (physicians, therapists, podiatrist, dentists, pharmacists, etc.)

15 Elder and Dependent Adult Civil Protection Act: DEFENSE STRATEGIES Early assessment/understand the pitfalls Assess courts attitude and sophistication Educate judge early and often Creative approaches toward resolution Strategic use of law and motion Tailor discovery with eye toward summary resolution Experts Assess opportunities to tender portion of defense Lie low and strike when appropriate Argue the egregious standard Work together with co-defendants, but watch your back

16 Elder and Dependent Adult Civil Protection Act: VALUATION AND SETTLEMENT ISSUES Always start with the premise that it is a $250,000 case, but bear in mind the volatility of the claim. Assess the client as a witness and as a party. Consider documentation and record keeping issues. Evaluate the defensibility of the entire case. Recognize the bad case early! In the garden variety claim, discuss settling the medical malpractice claim. If they want elder abuse dollars, theyll need to prove their case. Assess the plaintiffs (motivation, impression, etc.) Consider the skill, sophistication (and ego) of plaintiffs attorney.

17 Elder and Dependent Adult Civil Protection Act: GOOD NEWS Many plaintiffs attorneys havent caught on and assume the cases are easy. Portions of BAJI instructions disfavor plaintiff. Cases still tend to focus on nursing home defendant. Can generally form tight circle around the physician defendant. The good physician defendant can hinder the plaintiffs case against the nursing home. Can still argue professional negligence jury instructions in context of Elder Abuse. Doctors are typically not care custodians (who face additional EADACPA exposure). Even some plaintiffs attorneys agree with defense position regarding purpose and applicability of EADACPA.


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