Presentation on theme: "WINNING THE “ELDER ABUSE” CASE IN CALIFORNIA"— Presentation transcript:
1 WINNING THE “ELDER ABUSE” CASE IN CALIFORNIA presented byJeffrey A. WalkerWalker & Mann10832 Laurel Street, Suite 204, Rancho Cucamonga, CAPhone: Fax:
2 The Elder Abuse Case: Is It Winnable? Juror BiasesPoor WitnessesSympathetic/Helpless “Victims”Poor/Falsified Record KeepingDisgruntled EmployeesDHS Issues“Profits over People”—White Collar CrimesUnderstaffingUgly PicturesDelaney case holds EADACPA separate a distinct from prof. negligence
3 Delaney case holds EADACPA separate a distinct from prof. negligence
4 Winning Trial Strategies Prepare, Condition and Commit Jury Through Selection ProcessEmphasize Law, Duty and Oath over Sympathy, Prejudice, and PassionHumanize Witnesses and Defendant (why do you do what you do?)Remember the Human DramaNeutralize and Utilize Former EmployeesAttack and Explore DHS ActionsSterilize Liability Case Through BifercationLimit Scope of Expert TestimonyDelaney case holds EADACPA separate a distinct from prof. negligence
5 Pretrial Let’s Be Fair Assume Truth—What didn’t happen What Else Can Be Shown (video, formers, picturesDelaney case holds EADACPA separate a distinct from prof. negligence
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 (attorney’s fees, survival damages, uncapped general damages, one step from punitive damages)Unfavorable findings and interpretations (BAJI creates “new tort”)Social stigmaDelaney case holds EADACPA separate a distinct from prof. negligence
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 (attorney’s fees, survival damages, uncapped general damages, one step from punitive damages)Unfavorable findings and interpretations (BAJI creates “new tort”)Social stigmaDelaney case holds EADACPA separate a distinct from prof. negligence
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))Neglect is the really the playing ground. Most can agree on ends of spectrum
9 Elder and Dependent Adult Civil Protection Act: BAJI’S 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)Because of BAJI interpretation, hopefully short term, unintended effect of creating new “negligence based tort” which is distinguished from Med mal. Seems to be something that inevitably must be cleaned upComment on BAJI committee. Does make or interpret law. Most instructions have been deemed to be good law by Appellate Courts. EADACPA instructions have notWith neglect as lower standard, conceivable to have finding of no malpractice but get hit for abuseRight now, best to argue “like position” means like MD or RN, etc. and adopt 6.00 instructionsAlso, distinguish between neglect which is “FAILURE” with malpractice which are allegations of inadequate care
10 Elder and Dependent Adult Civil Protection Act: ENHANCED REMEDIES (W&I 15657) PROVE:Physical abuse, fiduciary abuse, neglectClear and convincing evidence“guilty” of recklessness, oppression, fraud, maliceGET:General damages (not limited by MICRA)Attorney’s fees/costs (Lodestar factors and )“Survival” damages (to $250,000)Constitutes the apparent intent of EADACPA. Designed to encourage litigation involving and provide enhanced remedies for “egregious acts of abuse”
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. BakerC.C (general damage cap) issueC.C.PCommunity CareCovenant CareC.C (punitive damages)Mack v. SoungBergman v. ChinGregory v. BeverlyDelaney—Supreme Court case. Says Elder abuse separate from prof. neg, but also seemed to set bar very high for recovery of enhanced remedies. Went to SC after jury had found “abuse” (ie: neglect and recklessness) by clear and convincing evidence. Heavily relied on legislative history and statements of purpose in that designed to remedy “egregious acts of abuse” p Compare to cases of med mal/fraud/iied/sexual battery/other intentional tortswon’t apply given interpretation by Delaney. ONE QUESTIONS PURPOSE OFAND COMMUNITY CARE—protections currently apply. Affirms Central Pathology and instructs court to look at the basis of the claim…whether in “arises out of the rendition of medical services”COVENANT CARE—2nd district held otherwise. Distinguished between medical care and custodial care (particularly important to SNF). Currently before SC. Plaintiff’s asking for finding that abuse is separate and distinct from prof. neg. such that shouldn’t apply ever. Making no distinction tween med. And custodial care3294—Covenant Care wants court to find that proof of enhanced remedies automatically entitles punitive damages. Through interesting analysis, say recklessness is implied malice. Case law specifically says recklessness not enough for punitive damage Therefore proof standard the same. GO TO NEXT SLIDE—COMPARISON-- significance is that although there have been numerous high verdicts, majority haven’t included punis because jury couldn’t agree on malice, oppression, fraud.MACK—case in which appellate court held that eadacpa does apply to MD. Tried to argue that abuse statutes specifically target “care custodians”. Rejected.BERGMAN—MD hit for elder abuse failure to rx adequate pain meds million in “general damages”. Court did not reduce for MICRA. Also, recently awarded attorney’s fees with the 1.5 multiplier.GREGORY—example of how bad things can go. Fractured hip, allegations of inadequate staffing. Just under $100 million in compensatory and punitive (significantly reduced and settled). Not hard to think of scenario where MD kept in and slimed by process.
13 Elder and Dependent Adult Civil Protection Act: ABUSE v Elder and Dependent Adult Civil Protection Act: ABUSE v. PUNITIVE DAMAGESEnhanced Remedies (W&I 15657)Clear and convincing evidenceOppressionFraudMaliceRecklessnessPunitive Damages (C.C. 3294)Clear and convincing evidenceOppressionFraudMaliceRecklessness is expressly not a basis for recovery of punitive damages.Balisok argues that under EADACPA, recklessness is a violation of PC 368, which by definition is “despicable conduct” which is implied malice. Therefore abuse pursuant to is the same as 3294
14 Elder and Dependent Adult Civil Protection Act: TRENDS Reporting issues—W&I and People v. DavisUnfair business practices--Business & Professions Code sections andCriminal prosecution, Penal Code section 368“Dual role” physicians (treating physician/medical director)Collateral providers (physicians, therapists, podiatrist, dentists, pharmacists, etc.)Reporting requirements=current hot issue. AG and local DAs pursuing vigorously. Consider in context of Gregory. Recent criminal convictionUNFAIR BP—has traditionally been a throw away. Can be very problematic since proof requirements quite minimal. Show “unfair, illegal, fraudulent” practice and collect remedies (disgorgement of profit, attorney’s fees, punitive damages. No requirement of showing actual damages. Debate as to whether requires “multiple acts”.CRIMINAL PROS. County DAs forming units, belief that AG using EA as platform to become governor. Covenant Care argues EA always criminal activity and always despicable conduct and therefore always violative of 368DUAL ROLE—much change in world of medical directors. Has become very professionalized. Discuss requirement for med directorCOLLATERAL PROVIDERS—Wilkes quote
15 Elder and Dependent Adult Civil Protection Act: DEFENSE STRATEGIES Early assessment/understand the pitfallsAssess court’s attitude and sophisticationEducate judge early and oftenCreative approaches toward resolutionStrategic use of law and motionTailor discovery with eye toward summary resolutionExpertsAssess opportunities to tender portion of defenseLie low and strike when appropriateArgue the “egregious” standardWork together with co-defendants, but watch your backWATCH YOUR BACK--Not traditional med mal cases—new firms, new approaches, high damage potential
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, they’ll 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 haven’t 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.