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WINNING THE “ELDER ABUSE” CASE IN CALIFORNIA

WINNING THE “ELDER ABUSE” CASE IN CALIFORNIA. presented by Jeffrey A. Walker Walker & Mann 10832 Laurel Street, Suite 204, Rancho Cucamonga, CA. 91730 Phone: 909.989.3200 Fax: 909.697.2182 www.walkermann.com. The Elder Abuse Case: Is It Winnable?. Juror Biases Poor Witnesses

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WINNING THE “ELDER ABUSE” CASE IN CALIFORNIA

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  1. WINNING THE “ELDER ABUSE” CASE IN CALIFORNIA presented by Jeffrey A. Walker Walker & Mann 10832 Laurel Street, Suite 204, Rancho Cucamonga, CA. 91730 Phone: 909.989.3200 Fax: 909.697.2182 www.walkermann.com

  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

  3. 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

  4. Pretrial • Let’s Be Fair • Assume Truth—What didn’t happen • What Else Can Be Shown (video, formers, pictures

  5. 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

  6. 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

  7. 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))

  8. “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 anduse 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:BAJI’S NEW (NON-MICRA) TORT

  9. 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)

  10. 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)

  11. 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

  12. 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:ABUSE v. PUNITIVE DAMAGES

  13. 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.)

  14. 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

  15. 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.

  16. 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.

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