Metropolitan News-Enterprise


Thursday, February 13, 2014


Page 3


S.C. Will Not Revive Multimillion Dollar Award in Nursing Home Fall


By a MetNews Staff Writer


The state Supreme Court has declined to review a ruling by this district’s Court of Appeal, ordering a new trial in the case of an elderly man awarded more than $4 million in damages and attorney fees as a result of a fall at a nursing home.

The justices, at their weekly conference in San Francisco Tuesday, unanimously denied review of Div. Four’s decision in favor of San Marino Skilled Nursing and Wellness Centre and its management company, Country Villa Service Corp.

The court normally holds its conference on Wednesday, but yesterday was a holiday for courts statewide.

The appellate panel ruled in June that the defendants were unduly prejudiced when Los Angeles Superior Court Judge C. Edward Simpson Jr. allowed the jury to consider a citation issued by a state agency as evidence in the case.

The panel, however, upheld the jury’s findings that the defendants violated Samuel Navarrez’s rights under the Patient’s Bill of Rights by inadequately staffing the facility and by failing to offer restraints to keep him from falling, a violation of the statutory duty to provide material information to patients. And it agreed that the judge correctly defined “clear and convincing evidence”—the standard for proving recklessness under the elder abuse statutes, which entitle the prevailing plaintiff to attorney fees.

Navarrez’s wife was substituted as a party to the litigation following his death during the pendency of the defendants’ appeal.

Many Falls

Attorneys for Navarrez, who was 79 when he was admitted to San Marino in 2009, presented evidence that he fell nine times while at the facility in March and April of that year. He suffered a subdural hematoma, requiring surgery, after the last fall and later suffered a stroke.

He was readmitted to San Marino between July and September 2009 and suffered two more falls.

The jury rejected claims of physical and mental abuse, but found the defendants 80 percent responsible, and Navarrez 20 percent responsible, on the plaintiff’s claims of negligence and found reckless neglect—but not malice, fraud, or oppression—on the elder abuse claim.

 Damages were found in the amounts of $1.4 million for past and present medical expenses and $3 million as general damages, and the judge subsequently awarded $952,000 in attorney fees and denied motions to reduce the damages and for a new trial.

Presiding Justice Norman Epstein, writing for the Court of Appeal, said the trial judge correctly defined “clear and convincing evidence” by giving CACI No. 201, which reads:

“Certain facts must be proved by clear and convincing evidence which is a higher burden of proof.  This means that the party must persuade you that it is highly probable that the fact is true.”

Poor Instruction

The presiding justice said Simpson was not required to give the instruction requested by the defendants, which read:

“Clear and convincing evidence requires a finding of high probability that the evidence be so clear as to leave no substantial doubt; sufficiently strong as to command the unhesitating assent of every reasonable mind.”

Epstein explained that the defendants’ proposed language, taken from an early 20th Century state Supreme Court case, has since been rejected as raising the clear-and-convincing standard to something like the criminal standard of proof beyond a reasonable doubt, and that no recent case supports it.

The jurist, however, agreed with the defendants that the trial judge committed reversible error by holding that a citation issued to the nursing home by the Department of Public Health was admissible under the official-records exception to the hearsay rule, codified as Evidence Code Sec. 1280.

The “class A” citation—the most serious type of accusation DPH can make for a non-fatal incident—was issued in March 2010, and was based on San Marino’s self-report of the patient’s ninth fall. DPH’s investigator accused San Marino of providing inadequate supervision and assistance, in particular failing to provide around-the-clock observation and failing to respond quickly enough when his personal alarm sounded.

Admissibility Question

The defense argued that the citation should be excluded because it was hearsay and not final on appeal. Simpson concluded that it was admissible because it was an official writing and that, to the extent it contained opinions of the investigator, it was admissible to the extent the investigator could testify to those opinions.

Some redactions were required, but the version considered by the jury included a plan of corrections, a reference to an interview with the facility administrator, and conclusions of the investigator.

Epstein said the citation should not have been admitted because it contained the investigator’s legal conclusion that San Marino violated the applicable regulations. And admitting the citation was, the jurist wrote, extremely prejudicial because it “created the risk that it would be used to establish not only that a regulation was violated for purposes of negligence per se, but to insinuate, as Nevarrez’s counsel did, that appellants must be liable because ‘the state’ issued San Marino ‘the highest citation that can be delivered against a nursing home,’ short of a citation based on a resident’s death.”

As a result, Epstein wrote, “the citation was largely used to predetermine the case and confuse the jury” and should have been excluded under Evidence Code §352.


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