1. WINNING THE “ELDER ABUSE” CASE IN CALIFORNIA
presented by
Jeffrey A. Walker
Walker & Mann
10832 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 People”—White Collar Crimes
Understaffing
Ugly Pictures
Delaney 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 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
Delaney 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, pictures
Delaney 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 stigma
Delaney 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 stigma
Delaney 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 up
Comment on BAJI committee. Does make or interpret law. Most instructions have been deemed to be good law by Appellate Courts. EADACPA instructions have not
With neglect as lower standard, conceivable to have finding of no malpractice but get hit for abuse
Right now, best to argue “like position” means like MD or RN, etc. and adopt 6.00 instructions
Also, 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, neglect
Clear and convincing evidence
“guilty” of recklessness, oppression, fraud, malice
GET:
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. 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
Delaney—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 torts
won’t apply given interpretation by Delaney. ONE QUESTIONS PURPOSE OF
AND 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 care
3294—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 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
Recklessness 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. 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.)
Reporting requirements=current hot issue. AG and local DAs pursuing vigorously. Consider in context of Gregory. Recent criminal conviction
UNFAIR 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 368
DUAL ROLE—much change in world of medical directors. Has become very professionalized. Discuss requirement for med director
COLLATERAL PROVIDERS—Wilkes quote

15. Elder and Dependent Adult Civil Protection Act: DEFENSE STRATEGIES
Early assessment/understand the pitfalls
Assess court’s 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
WATCH 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.