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California Justices Grapple With Computing Elder Abuse Damages

May 19, 2020, 10:24 PM

California justices struggled over how much in damages the family of a nursing home patient should be awarded for alleged violations of the state’s health and safety law.

The California Supreme Court questioned whether the statute’s penalty of up to $500 applies per lawsuit or per violation in the case, which alleged that nursing home operator HCR ManorCare abused and neglected one of its residents. The court also appeared skeptical about whether that decision should be left to the jury.

“My sense is this is a lot to leave to the jury,” Justice Joshua P. Groban said on Tuesday during oral argument. “I think at least I’m feeling a bit unsatisfied to say the jury can figure it out because I can’t figure it out.”

The state’s high court is reviewing whether the California Court of Appeal, Fourth District, was correct in upholding a jury award of $95,500—$250 per violation—plus an additional $100,000 in damages against HCR ManorCare. Plaintiff Janice Jarman, the daughter of deceased nursing home patient John Jarman, had accused HCR ManorCare of failing to help him with his daily activities, leaving him in soiled diapers, and frequently ignoring his calls.

The appeals court in 2017 held the penalty was for each cause of action and overturned the trial court’s award reduction. The decision created a split among appeals courts over how to interpret statutory damages under the California Health & Safety Code.

Patient advocates argue the California law is designed to protect nursing home patients from harm and that the statute permits a $500 per violation penalty. Nursing facilities have argued the Legislature meant the statute’s monetary provisions to be an ancillary award but is instead being used to try to extort large awards.

A decision by the California Supreme Court is expected within 90 days.

Calculating Damages

The arguments centered on a section of the code that permits a civil lawsuit against a facility for violating the state’s Patients Bill of Rights “or any other right provided for by federal or state law or regulation.”

The statute provides that the facility holding a license, in addition to facing a penalty of up to $500, is liable for costs and attorneys’ fees and may be enjoined from permitting the violation to continue.

HCR ManorCare argued that $500 is the maximum penalty, regardless of the number of rights allegedly violated or violations proven.

Justice Mariano-Florentino Cuéllar asked how many violations there are when a patient asks 20 times in 10 hours to use the telephone and is denied each time. Would that be $500 for denying use of the phone, or a total of $10,000 for all the times the patient is denied that use, Cuéllar asked.

“What would we tell the jury about how to go about making this decision?” Justice Leondra R. Kruger asked.

Jay-Allen Eisen, counsel for Jarman and an attorney with Downey Brand LLP in Sacramento, Calif., said determining damages is a factual, specific question judges can craft and juries can answer.

The question is whether the health and safety code offers a nursing home “the opportunity to purchase a $500 ticket and violate any, each, every, or all the patient’s rights, those fundamental human rights, without further charge,” Eisen said.

Lawmakers chose to write the statute to provide some remedy for nominal or intangible harms to residents, said Barry S. Landsberg, counsel for the nursing home and a partner with Manatt Phelps & Phillips LLP in Los Angeles. The statute doesn’t say “each” violation, and the Legislature set $500 as the right amount, he said.

The amount is twice the fine for a more serious violation and would result in higher damages for lower-level violations, Landsberg said.

Factual Questions

Context matters in a complaint for calculating punitive damages, said Matthew Borden, with BraunHagey & Borden LLP in San Francisco. Borden filed a brief in support of the plaintiff, on behalf of the AARP, the Center for Medicare Advocacy, and several other long-term care advocacy groups.

Denying the phone call might have been because the patient wanted to call a TV station to complain or wanted to call a family member to complain.

“Jurors should have the discretion” to make the determination, Borden said.

The case is Jarman v. HCR ManorCare Inc, Cal., No. S241431, oral argument 5/19/20.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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