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Lessons from a Seasoned Elder Abuse Litigator


Russell Balisok, Esq.

After 20 years of talking about SB 679, (the Elder Abuse Act) (1991), of watching defense attorneys mightily misguiding – or attempting to misguide – courts from the Supreme Court to trial courts, and of greeting newcomers to this area of the law, I’d like to discuss some observations which I know you share, and also the basic premise that drew me to this litigation in the first instance. This will include a discussion of Winn v. Pioneer Medical Group, now pending in the Supreme Court, fully briefed and waiting for oral argument.

Observations. First, Elder Abuse litigation is not for sissies. Lawyers who come to this scene who are not interested in the law, but instead on a quick and heady payday, are going to be misled and disappointed. The defense attorneys drool when they get a newbie. There’s just too much possible underbrush to deal with unless you are ready.

Second, the defense lawyers are much better prepared, as a group, than the plaintiff’s bar doing this work. They have annual meetings, they compare detailed notes on the law and on each of us, and are otherwise pretty well organized.

Third, never ever plead professional negligence. Never use C.C.P. §364. Never describe the nursing home defendant as a facility. Instead, the defendant is always to be described as the operator of the nursing facility business. Never plead that any healthcare defendant is “licensed.” The only exception is when you plead fraud based on misrepresentations or concealments to the licensing agency. More about that below. Instead, merely be content to plead the defendant is in the business of providing skilled nursing services to our elders and enfeebled parents.

Fourth, pleading elder abuse is, again, not for sissies. You have to be interested in the rules of pleading and specific pleading specifically. I still review lots of cases where the plaintiff’s lawyer simply had no clue and was disinclined to look in Witkin to learn the basic rules of pleading. For example, if you want to plead knowledge of the peril (an element of recklessness) plead the defendant knew of the peril. “Knowledge” is the specific fact to be pleaded. Those are evidentiary matters just as properly stricken as a conclusion. Likewise, intent: if you want to plead someone intended injury or misconduct, plead, “the defendant intended injury or misconduct.” You almost never have to plead why the defendant intended to act. Federal rules of pleading require such additional evidentiary allegations where the defendant’s intent is highly unusual or unnatural. The Tea Party candidate intended to support government expenditures for support of the WIC program, “because he was running for office in a blue state.” Like knowledge, “intent” is the specific fact to be alleged. You don’t have to plead why the defendant intended to do something. Such is an impermissible evidentiary fact. Cozy into a big chair with a nice glass of red wine, or a Dr. Pepper, whatever, and read Witkin on Pleading. Use a big red pen when you get to “knowledge,” “intent,” and “fraud.”

Fifth, being correct is actually better than winning a motion. There is the constant noise from lawyers who appear more concerned about losing than they are concerned with being correct, with ascertaining and following the law. My thought is if you win because of an incorrect ruling, don’t tell your client, because it’s likely to go the other way on appeal, or on reconsideration. And if you lose even though you are correct, you’ll ultimately be okay if you can get review or reconsideration. All of this assumes you’ve done your homework and know what is correct and what is not.

Sixth, proving culpability, i.e., recklessness, oppression, fraud or malice, is really easy. Most of you will say proving fraud is never easy. But what about pleading and proving fraud by concealment instead of fraudulent misrepresentation (which is usually hard). Consider a health care provider has a duty to disclose adverse financial influences and a further duty not to act on such financial interests. If the duty is (and it is) a fiduciary duty, a duty to disclose arises. But health care providers never disclose their adverse financial interests. Why? They don’t want anyone making demands on them, or leaving because of, say, inadequate staffing. People are misled in the absence of the undisclosed facts. Any questions? Another fraud theory that is easy to state and prove against a nursing facility operator is the operator/licensee’s fraud on the licensing agency. This is the one time you allege the nursing home operator was licensed. The only time. Briefly, in McCall v. PacifiCare (2004) 25 Cal. 4th 412, 426, (citing Randi W. v. Muroc Joint Unified School Dist.) the Court explained that fraud on a licensing agency was alive and well in California, if not federal courts. So look at the representations made by the snf licensee when they want a license. And under penalty of perjury no less!

Then compare the promise to be responsible to comply with rules regarding quality of care, with the record of deficiencies going back about 3 years. This information is available from the public record in the DPH files. Any serious record of non-compliance over the years, and after the liability producing incident as well, is evidence that the representation was false. In other words, all of the statement of deficiencies will come into evidence as direct proof of fraudulent intent in the making of the representations. In other words, you can say goodbye to your worries about getting the statements of deficiency (the 2567 form) into evidence. Juries know what to do with them.

Proving recklessness in the area of health care should be left to the expert. Questioning experts properly means getting in touch with your case. Most of us know to ask the expert if the defendant’s conduct complied with the standard of care. Big deal. The next question is usually how the breach occur? How marked or obvious is this breach? How far from the standard of care is this operation? Next is, could this breach occur if the defendant was at least trying to comply with the standard of care? Should the defendant, as licensed skilled nursing facility have known that its conduct leading to breach of the standard of care would also pose the possibility of injury to a human being? Should that defendant have known that ignoring the conditions which led to breach create the probability of serious injury? And can you tell us based on the information you have, and on your background, etc., whether it is more likely than not that the defendant consciously ignored the conduct leading to the breach? What alternatives to ignoring the conduct or conditions leading to breach were available to the defendant? More staffing? Better training and leadership? Different policies? And if you can get to this point in the proof of recklessness, you may conclude you will have little problem in also proving malice or oppression.

(Russell Balisok, Esq., with Balisok & Associates in Glendale, CA, is likely the most seasoned elder abuse litigator in California and is the author of The Rutter Group's “California Elder Abuse Litigation” )