Find a
Nursing Home
Residential Care
/ Assisted Living
CCRCs Medi-Cal for
Long Term Care
Elder Abuse
/ Financial Abuse
Find Elder Abuse Attorneys in CA

Maximizing Justice in Nursing Home Cases
by Thinking Outside the Caps

by Peter G. Lomhoff


About 95% of our clients in nursing home abuse cases tell us they just don’t want to see anything like this happen to anyone else. Our best tool to accomplish that kind of justice is money, enough money to make the nursing home owner pay attention and realize that it is actually cheaper to take good care of people than to pay for more cases like this one.

The defense often tells us the best we could ever do on a perfect day in trial is $250,000 for wrongful death under MICRA at C.C. §3333.2, plus $250,000 for elder abuse plus attorney’s fees under W. &I.C. §15657, so the theoretical maximum recovery is about $700,000, so let’s look for a reasonable compromise between there and zero.

Actually the practical and reasonable range of recovery is much more than that, even without considering punitive damages.

If wrongful death is caused by the professional negligence of a licensed healthcare provider and nothing else, the maximum recovery for wrongful death non–economic damages for all the claimants together is limited by MICRA to $250,000. Yates v. Pollack (1987) 194 Cal. App. 3d 195, 200–201. If, however, the wrongful death was caused by something other than healthcare malpractice, the MICRA cap does not apply. [Barris v. County of Los Angeles (1999) 20 Cal. 4th 101, 113–114.] For example, if the death was caused by elder abuse, which we know is not professional negligence, Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, then the wrongful death cause of action is not subject to the MICRA cap.

The same logic probably applies to "neglect" as defined in the Elder Abuse Act at W.&I.C. §15610.57 and at CACI 3103, even when the enhanced remedies of W.&I.C. §15657 are not sought. As the Directions for Use for CACI 3103 explain, "This instruction is not intended for cases involving professional negligence against health–care providers as defined by the California Medical Injury Compensation Reform Act of 1975 (MICRA)." There is no appellate decision precisely on point as to whether a death caused by neglect as defined in W.&I.C. §15610.57 is subject to the MICRA cap or not, but the logic that it is not seems clear.

Furthermore if the death was caused in part by professional negligence and in part by something else, then, too, the damages are not subject to the MICRA cap. Waters v. Bourhis (1985) 40 Cal. 3d 424, 437.

The tort of willful misconduct is also outside the protection of MICRA. Benun v. Superior Court (2004) 123 Cal. App. 4th 113, 126. Although willful misconduct resembles elder abuse in that it is similar to (or maybe the same as) recklessness, unlike elder abuse as defined in W.&I.C. §15657, willful misconduct does not require culpable conduct by a corporate managing agent for respondeat superior liability, and it does not require proof by clear and convincing evidence. If the death was caused in whole or in part by willful misconduct, the MICRA noneconomic damages cap should not apply. Waters, supra.

Even within MICRA there can be multiple $250,000 caps, not just one. There is a single cap for all the claimants together for noneconomic damages for wrongful death due entirely to professional negligence, Yates, supra, but there are other caps too. Under C.C. §3333.2, the MICRA cap applies to each injured plaintiff. Bystander negligent infliction of emotional distress is a separate cause of action that belongs to each plaintiff who saw and understood the effect of the negligent care, or lack of care, when it occurred. NIED is a separate cause of action with a separate additional cap. Atkins v. Strayhorn (1990) 223 Cal. App. 3d 1380, 1394. One or more of the various forms of fraud may also be additional causes of action, either outside of MICRA entirely or within MICRA pursuant to Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal. 4th 181, 191–192, which actually concerned C.C.P. §425.13, not MICRA. Loss of consortium is another separate cause of action that belongs to the resident’s spouse, which can also support a separate MICRA cap. Atkins, supra.

If the death, or suffering of a living resident, was caused, in whole or in part, by negligence, or any other wrongful conduct by a person or entity that is not a licensed healthcare provider, then, too, the MICRA cap does not apply. For example, if the CEO of the real estate developer that owns the nursing home makes decisions limiting the nursing home budget to dangerously low levels, or simply negligently fails to adequately supervise what goes on at the nursing home when that is part of his job, then that negligence or other wrongful conduct is outside of MICRA because MICRA applies only to professional negligence by licensed healthcare providers. If management decisions for the local nursing homes are made by the home office of a nursing home chain (for example in exchange for those huge home office payments that show up in the OSHPD cost reports), and the license to operate is held by the local nursing home corporation and not by the home office corporation, then the negligence (or worse) by the home office is done by an entity that is not a licensed health care provider, and so is not protected by MICRA.

If the injury or death is caused by ordinary negligence, not professional negligence, no matter who does it, then it is not protected by MICRA.

Add punitive damages and the risk of treble punitive damages under C.C. §3345, and the MICRA caps lose most of their sting in nursing home cases.

Nursing home chains are now organized into minuscule corporate subdivisions precisely and intentionally to avoid liability. See Casson and McMillan, Protecting Nursing Home Companies: Limiting Liability Through Corporate Restructuring, Journal of Health Law, Fall, 2003, Vol. 36, No. 4, available on line at:
http://www.healthlawyers.org/Publications/Journal/Documents/Vol%2036%20Issue%204/JHL_vol.36_no.4_Casson_McMillen%28Protecting_Nursing_Homes%29.pdf

This is a truly amazing article that spells out how to do it. Don’t let them get away with it!

(Peter Lomhoff, Esq., is an attorney in private practice in Oakland, CA)