WINNING THE “ELDER ABUSE” CASE WINNING THE “ELDER ABUSE” CASE IN CALIFORNIAIN CALIFORNIA

presented bypresented by

Jeffrey A. WalkerJeffrey A. WalkerWalker & MannWalker & Mann

10832 Laurel Street, Suite 204, Rancho Cucamonga, CA. 9173010832 Laurel Street, Suite 204, Rancho Cucamonga, CA. 91730Phone: 909.989.3200 Fax: 909.697.2182Phone: 909.989.3200 Fax: 909.697.2182

www.walkermann.comwww.walkermann.com

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

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

Pretrial

Let’s Be Fair Assume Truth—What didn’t happen What Else Can Be Shown (video, formers,

pictures

Elder and Dependent Adult Civil Protection Act:THE RISK

Threat to MICRA (notwithstanding 15657.2) 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

Elder and Dependent Adult Civil Protection Act:THE RISK

Threat to MICRA (notwithstanding 15657.2) 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

Elder and Dependent Adult Civil Protection Act:DEFINITIONS

Elder: 65 and older (15610.27) Dependant Adult: 18 to 65, physical/mental

limitations that restrict ability to carry out normal activities or protect rights (15610.23), or is admitted as an inpatient to a 24-hour health facility (H&S 1250, 1250.2, 1250.3)

Abuse: physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment with resulting physical harm or pain or mental suffering (15610.07(a))

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 15610.57)

“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 6.00.1)

-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)

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 15657.1) “Survival” damages (to $250,000)

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)

Elder and Dependent Adult Civil Protection Act:MICRA ISSUES

Delaney v. Baker C.C. 3333.2 (general damage cap) issue C.C.P. 425.13 Community Care Covenant Care C.C. 3294 (punitive damages) Mack v. Soung Bergman v. Chin Gregory v. Beverly

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

Elder and Dependent Adult Civil Protection Act:TRENDS

Reporting issues—W&I 15630 and People v. Davis Unfair business practices--Business & Professions

Code sections 17200 and 17206.1 Criminal prosecution, Penal Code section 368 “Dual role” physicians (treating physician/medical

director) Collateral providers (physicians, therapists,

podiatrist, dentists, pharmacists, etc.)

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

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.

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.