Black v. Livhome

A jury in San Diego County deliberated less than one day before rendering a verdict in favor of the defendant in a lawsuit claiming abuse, neglect and the wrongful death of a 92-year-old woman.  The plaintiff, Ellen Black-Eacker, claimed that caregivers from Los Angeles-based LivHome, Inc., allowed her mother to be systematically starved to death and subjected her to physical abuse and neglect which caused extensive skin tears, subcutaneous bleeding, bruises and decubitus ulcers on the patient’s sacrum.

 Testimony from the plaintiff’s expert focused on the decedent’s 49-pound weight loss, the progression of multiple sites of skin breakdown, scabies and decubitus ulcers. Aside from the physical abuse and neglect, plaintiff claimed that the in-home caregivers provided by the defendant intentionally isolated the plaintiff’s decedent by refusing visits from numerous family members and friends.  During trial, the administrative director of a daycare center where the patient visited testified that, in her opinion, the plaintiff’s decedent was the victim of physical abuse and neglect by one particular caregiver.  The decedent’s son described his mother’s appearance as “a skeleton covered with skin.”

 The defendant, LivHome, Inc., had contracted with the patient’s conservator to provide a wide range of home care services including nursing staff, home companion, therapists and related services.  The defendant claimed that the decedent’s steady decline, weight loss, bruising and decubitus ulcers were caused by the natural progress of her Alzheimer’s disease and numerous medications. 

 The plaintiff was represented by the California-based law firm of Lanzone Morgan, a recent spinoff from the Los Angeles office of Wilkes & McHugh, a national law firm headquartered in Florida.

 The defendant was represented by attorneys Thomas Beach and Katherine Cody of Beach Whitman Cowdrey, LLP in Oxnard, California.

 The jury’s verdict was rendered on April 1, 2010.  The trial judge was the Honorable Thomas P. Nugent, San Diego County Superior Court.

Speiginer v. Ben Bennett, Inc., et al. 

Riverside County Superior Court Case No. RIC444667- Summary of Trial and Jury Verdict

            Plaintiffs brought suit against a skilled nursing and rehabilitation center alleging elder abuse, negligence per se, fraud, negligent infliction of emotional distress and wrongful death in relation to the care rendered to the plaintiffs’ 91-year old father in March 2005.  Following a short stay at the hospital, the plaintiffs’ father was admitted to the skilled nursing facility for rehabilitation and physical therapy for back pain reportedly caused by a previous motor vehicle accident. He was subsequently diagnosed with metatastic prostate cancer that had spread to the spine. He developed Stage IV pressure ulcers on his coccyx, buttocks, toes and thigh. The decedent was transferred back to the hospital weeks later where he died of sepsis and undiagnosed heart disease.  Plaintiffs claimed that the nursing staff’s failure to provide proper custodial care resulted in dehydration, malnutrition, sepsis and the development of multiple Stage IV pressure sores. The plaintiffs relied on charting discrepancies and the testimony of family members and prior facility staff as evidence of the alleged lack of care.  The defendant contended that the decedent’s multiple medical issues were the expected result of the natural course of the underlying disease process which was accelerated by the decedent’s refusal of care.

            At the conclusion of the plaintiffs’ case, the court granted defendant’s motions for nonsuit as to the fraud and negligent infliction of emotional distress causes of action. The causes of action of elder abuse and wrongful death went to the jury.  The plaintiffs requested a verdict totaling $3.8M.

            After one day of deliberation, the jury found in favor of the defense on wrongful death. On the elder abuse cause of action, the jury did not find the necessary element of reckless neglect. Without this finding the plaintiffs were not entitled to recover pre-death pain and suffering in elder abuse, rendering a complete jury verdict in favor of the defense.

Noriega v. Fillmore Convalescent Center

February, 2009 saw the conclusion of another high-stakes trial involving claims of elder neglect and wrongful death against a skilled nursing facility. Plaintiffs also personally named one of the licensed nurses who provided care to the decedent. Throughout the course of this six-week trial, plaintiffs introduced evidence of alleged fraudulent documentation, failure to report changes in the resident’s condition and failure to emergently transfer the resident. Prior to closing arguments, Rebecca Lowell was able to successfully argue a Nonsuit motion on behalf of her client, the licensed nurse. The court entered a judgment in favor of the nurse and awarded costs. Tom Beach was equally successful in arguing a Nonsuit motion on behalf of the skilled nursing facility. The court agreed with the skilled nursing facility’s position and dismissed the elder abuse claim. The case then went to the jury on the wrongful death claim only. Although the jury found the defendant skilled nursing facility 40% responsible for the resident’s death, B|W|C then filed a Motion for Judgment Notwithstanding the Verdict, asking the court to set aside the jury’s findings and award judgment in favor of the defendant skilled nursing facility. The court agreed with defendant’s position, and on April 28, 2009, entered a final judgment in favor of the skilled nursing facility on all causes of action. Defendants were awarded costs in excess of $50,000.

Lucken v. Royal Oaks Convalescent  

 Plaintiff’s claims against defendant nursing home and primary treating doctor involved allegations of nursing neglect, ultimately resulting in the death of the patient. The plaintiff was the daughter of the decedent and contended that defendant’s conduct caused the decedent to suffer numerous decubitus ulcers, episodes of aspiration pneumonia, dehydration, acute renal failure and death. To support her position, plaintiff relied upon her own personal observations, expert review of the medical records and survey results from the Department of Public Health. The arbitration was heard by a three-panel group. Prior to the presentation of evidence, Beach Whitman Cowdrey attorneys Rebecca Lowell & Tom Beach successfully eliminated the wrongful death claim based upon the statute of limitations. The arbitration proceeded to verdict on the elder neglect claim. The defense prevailed on this cause of action. By a 2-1 margin, the arbitrators determined that the plaintiff had not met her burden of proof on the issues of neglect by the nursing staff or authorization or ratification by a managing agent.

Whittier Hospital v. Department of Public Health

Department of Health Services, MediCal Audits Division, claimed that Whittier Hospital falsely and improperly submitted claims for payment to MediCal, for services provided to pediatric subacute patients under a contract with the State of California. The Department of Public Health contended that the hospital failed to adequately staff the Pediatric Subacute Unit in accordance with Title 22. As a result, the Department of Public Health sought to recover $1,032,619.00 in alleged overpayments to the hospital for a two-year period.

Beach Whitman Cowdrey attorneys Rebecca Lowell and Tom Beach successfully argued that 1) the level of care provided to the patients was subacute and in accordance with the terms of the contract, 2) that the proposed remedy was not provided for under the terms of the contract, 3) the calculations by the Department of Health Services failed to properly account for the nursing hours that were provided to the patients from a variety of sources, and 4) the reimbursement rate utilized by Audits was outdated. The hearing officer found in favor of the Pediatric SubAcute unit. The Department of Health Services was precluded from recovering any monies.

Sean D. Cowdrey, recently presented “Elder Abuse Litigation: For the Defense” at the Ventura County and Santa Barbara County Paralegal Associations’ Annual Conference. Mr. Cowdrey explained California’s Elder Abuse Act as it pertains to civil elder abuse remedies, steps to prepare a nursing home elder abuse case for settlement and trial, and the typical documents needed to fully defend such cases.  The presentation was tailored for an audience with no prior experience in elder abuse cases and was well-received by the attorneys and paralegals in attendance.

Green v. Chase Care Center

In February, 2008, Beach | Whitman | Cowdrey attorneys secured another defense verdict for its client in an elder abuse lawsuit in the San Diego Superior Court. This lawsuit arose out of the nursing care and treatment of an elderly Alzheimer’s patient at a skilled nursing facility in El Cajon, California. The case generally centered around the resident’s development of a wound on her right foot, which resulted in a partial amputation, and the development of bilateral knee contractures. The plaintiff contended that the defendant was liable for elder abuse, neglect, negligence per se and medical malpractice by the facility staff. She sought damages for past medical expenses, past and future pain and suffering and attorney’s fees. Plaintiff was permitted, over defendant’s objection, to introduce the testimony of a health facilities evaluator nurse from the Department of Health Services, who issued a deficiency to the skilled nursing facility for allegedly failing to assess the resident’s right great toe for a change of condition. The defendant contended that the resident’s alleged injuries were caused by the inevitable and natural progress of her multiple disease processes and her daughter’s non-compliance with treatment orders. Defendant maintained that its care and treatment of the plaintiff was within the standard of care within the skilled nursing community and denied that it caused or contributed to plaintiff’s alleged injuries. The jury agreed, finding for the defendant on all claims.

Of particular significance during trial was the Court’s order allowing plaintiff to amend her complaint to add elder abuse and neglect per se claims. Although these claims had previously been stricken from the complaint, the trial judge allowed the amendment based on evidence that the hospital administrator was aware of many family allegations and complaints of poor care but took no action to intervene. Upon the new claims, the judge gave jury instructions based on the concept of elder neglect per se.

Brooks v. Covenant Care

Santa Barbara Superior Court. In this high-stakes claim involving allegations of elder abuse, neglect, negligence per se and wrongful death, plaintiffs were seeking to recover pre-death pain and suffering, punitive damages and attorney’s fees. The plaintiffs alleged that the skilled nursing facility failed to provide the necessary care and treatment to prevent a fall which resulted in a left hip fracture, subdural hematoma and death. Plaintiffs further alleged that the skilled nursing facility failed to properly monitor and report the changes in the resident’s medical condition. Plaintiffs, represented by Wilkes & McHugh, were able to introduce to the jury the facility’s Department of Health Services survey history under the auspices of “Notice.” In a landslide victory, the jury completely rejected plaintiffs’ claims and unanimously found in favor of the defendants on all claims.

Inclan v. Covenant Care

In 2004, the California Supreme Court rocked the world of healthcare litigation in it’s decision Covenant Care Inc. v. Superior Court (Inclan), 32 Cal 4th 771. The decision effectively stripped the healthcare providers of all procedural protections on punitive damages in cases involving elders or dependant adults seeking remedies under California’s Elder Abuse and Dependant Adult Civil Protection Act (EADACPA). In the wake of the decision, hundreds of elder abuse lawsuits seeking punitive damages and pre-death pain and suffering damages have been filed against healthcare providers throughout California.

In what some have called the “trial of the decade” in the long-term care industry in California, the defendants in the Covenant Care decision (Inclan v. GranCare, et al.) have received a defense verdict following two months of trial in Los Angeles Superior Court, Central. After eight weeks of trial and five days of deliberations, the jury concluded that none of the defendants were liable for wrongful death, elder abuse, fraud or intentional infliction of emotional distress. The plaintiffs’ claim for punitive damages, which was the subject of the Supreme Court decision, was rejected.

The primary defendant, Coordinated Hospice (a former GranCare company) was defended by Thomas E. Beach of Beach | Whitman | Cowdrey, LLP. One of the skilled nursing facilities, Laurelwood Convalescent Hospital, also a former GranCare facility, was defended by Sean D. Cowdrey of Beach | Whitman | Cowdrey, LLP. The other skilled nursing facility, Riverdale Convalescent Hospital, a Covenant Care facility, was defended by John Supple of Gordon & Rees and Randolph E. Even of Even & Associates.

Decedent Juan A. Inclan suffered from Parkinson’s Disease and was diagnosed as terminal with less than six months to live. The patient’s adult children, plaintiffs Lourdes and John Inclan, contracted with Coordinated Hospice for hospice services. Plaintiffs claimed that they were misled as to the nature of hospice services and were told that their father was not, in fact, terminal. Instead, they claimed that hospice conspired with the skilled nursing facilities to withhold essential care, treatment and medical services from decedent in order to maximize revenues from Medicare. Decedent developed multiple Stage III and IV decubitus ulcers, contractures, lost over 50 pounds, and suffered from severe malnutrition and dehydration. Plaintiffs claimed that hospice arranged a transfer of the decedent from facility to facility without consent in an effort to conceal the defendants’ neglect of the patient. Plaintiffs’ experts testified that decedent was expected to live another 10 years but for the defendants’ neglect.

Inclan v. Covenant Care, Inc., was filed in 1997 by plaintiffs’ attorney, Russell Balisok. After plaintiffs’ initial request to claim punitive damages was denied by the trial court, the California Supreme Court reinstated the punitive damages claim in Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, holding that elder abuse cases were not subject to certain procedural protections afforded to healthcare providers in professional negligence cases.

Given the difficult facts of the case, the complexity of issues, and the importance of the Supreme Court’s decision, the Inclan case has been closely watched and is a significant victory for long-term care providers.

A leading West Coast long-term care provider held its annual meeting of defense counsel at the Defense Research Institute’s conference on Nursing Home ALF Litigation held in Chicago, Illinois. Beach | Whitman | Cowdrey, LLP attorneys addressed the panel concerning recent developments in the law and defense strategies for the long-term healthcare industry.

Limiting Liability of Parent and Management Companies

An ongoing trend in long-term care litigation is to name not only the facility as a defendant, but the related parent and management corporations. Fortunately, case law significantly limits the circumstances under which the parent or management corporations can be held directly liable to injured residents. Beach | Whitman | Cowdrey, LLP attorneys addressed the pretrial motion strategies that they have developed to eliminate or significantly limit the basis for liability of health care entities not involved in the day to day delivery of resident care.

Removal of Patient Care Cases to Federal Court

Beach |  Whitman | Cowdrey, LLP attorneys also addressed the procedures permitting removal of a case from state court to a federal district court. In many circumstances the federal courts present a better forum for the long-term care defendant than the state court jurisdictions where resident care case are originally filed. When the facility is licensed to a corporate entity that is organized and maintains their principal business offices in a different state, this may present a basis for removal to the federal district court on diversity jurisdiction grounds. In addition, the U.S. Supreme Court’s recent decision in Grable & Sons v. Darue Engineering (2005) 545 U.S. 308, expanded the ability of defendants in patient care lawsuits to remove the actions to federal court where the plaintiff’s theories of liability are based on federal statutes or regulations.

Defending Class Actions and Medicare Secondary Payer Claims

Beach | Whitman | Cowdrey, LLP attorneys are actively involved in defending its long-term care clients against “mass tort” litigation. These suits are typically brought against multi facility defendants and claim injunction and reimbursement of fees paid by residents under theories of under staffing, false advertising, and substandard delivery of care. In class action claims, the plaintiffs often seek millions of dollars for each year of non-compliant operation (depending upon the number of facilities operated and the number of residents that are potential class members). Beach | Whitman | Cowdrey, LLP attorneys addressed the panel concerning strategies for defeating class claims. In addition, the claims under the Medicare Secondary Payer Act brought by celebrity plaintiff Erin Brokovich were explained along with co-ordinated efforts to dismiss her suit.