San Marino Skilled Nursing and Wellness Centre, LLP (San Marino) and Country Villa Service Corp. (Country Villa) appeal from a judgment after a jury verdict in favor of Samuel Nevarrez
Country Villa operates nursing homes in California, including San Marino, a licensed nursing home. Country Villa and San Marino have a management contract for operation of the nursing home.
Nevarrez was 79 years old when he was admitted to San Marino for rehabilitation on March 13, 2009. He was alert, but had difficulty standing and walking and was at a high risk of falling. Between March 20 and April 24, Nevarrez fell nine times while at the nursing home. His falls usually occurred when he tried to get out of bed and go to the bathroom.
After the first fall, Nevarrez was assessed as having "[p]oor safety awareness/judgment," "[u]nsteady/poor gait," "attempt[ing] to function beyond ability," and "climb[ing] out of bed/chair." The recommended measures were "[b]ed in lowest position," "[t]oileting program" (which required assisting Nevarrez with going to the bathroom every two hours or as needed), and "drug regimen review."
Nevarrez fell a second time on April 4. He then was additionally assessed as being "forgetful," "impulsive," and poor at utilizing a safety device. It was recommended that his walker be kept within reach. After his third fall, on April 10, a lap belt "self-release" and a bed alarm were added. Two days later, Nevarrez fell twice on the same day. A bedside commode with a urinal was added, as well as a tab alarm in bed. Since Nevarrez had lost his balance trying to unzip his pants, it was suggested the family provide pants with a Velcro closure.
On April 19, Nevarrez fell for the sixth time. Padded pants were recommended, but he refused to wear them. It was noted he was "very adamant with transferring and ambulating without assistance." The bedside commode was discontinued because Nevarrez refused to use it. After the seventh fall, on April 21, it was noted Nevarrez was confused. A wheelchair alarm was added. He was to be monitored visually around the clock, but his room was not visible from the nurses' station. Nevarrez reported he fell again on April 23. The existing interventions were continued.
About 1 a.m. on April 24, nurse De La Victoria and head nurse Cabral heard Nevarrez's bed alarm sound. By the time the nurses reached his room
In April 2010, Nevarrez filed a complaint alleging elder abuse under Welfare and Institutions Code section 15600 et seq., negligence, violation of the Patient's Bill of Rights (Health & Saf. Code, § 1430, subd. (b)), willful misconduct, and violation of Penal Code section 368.
The case went to trial on the first three causes of action, and in March 2011, the jury returned a special verdict. It found six violations of the Patient's Bill of Rights based on inadequate staffing and eight violations based on the failure to provide Nevarrez with material information. The jury found Nevarrez was not subjected to physical or mental abuse. On the negligence cause of action, the jury found San Marino and Country Villa each 40 percent negligent and Nevarrez 20 percent comparatively negligent. On the elder abuse cause of action, the jury found, by clear and convincing evidence, that Nevarrez's injuries were the result of reckless neglect, but it did not find fraud, malice or oppression. The jury awarded Nevarrez $1,191,007.90 for past medical expenses, $200,000 for future medical expenses, and $3 million in general damages.
Several postverdict motions were filed. In April 2011, the court awarded Nevarrez $7,000 as civil penalties ($500 for each of the 14 violations of the Patient's Bill of Rights) and $952,142.50 in attorney fees. The court denied appellants' motions to reduce the noneconomic damages to the $250,000 cap under the Medical Injury Compensation Reform Act (Civ. Code, § 3333.2) and to reduce the economic damages to amounts actually paid. After judgment was entered in May 2011, appellants moved for a new trial and judgment notwithstanding the verdict. The court denied these motions at a hearing in July 2011, but no minute order was filed.
This timely appeal followed. Appellants have joined in each other's briefs.
The trial court instructed the jury with CACI No. 201 that "[c]ertain facts must be proved by clear and convincing evidence which is a higher burden of proof. This means that the party must persuade you that it is highly probable that the fact is true." The court refused appellants' proposed instruction, which read: "Clear and convincing evidence requires a finding of high probability that the evidence be so clear as to leave no substantial doubt; sufficiently strong as to command the unhesitating assent of every reasonable mind." Appellants argue the trial court's refusal to give their proposed instruction was prejudicial error requiring reversal of the elder abuse verdict, to which the higher burden of proof applied. We disagree.
Specifically, appellants contend the phrase "highly probable that the fact is true" in CACI No. 201 is misleading and unnecessarily limited without the additional language they proposed. The additional language was derived from In re Angelia P. (1981) 28 Cal.3d 908 [171 Cal.Rptr. 637, 623 P.2d 198], where the California Supreme Court explained: "`Clear and convincing' evidence requires a finding of high probability. This standard is not new. We described such a test, 80 years ago, as requiring that the evidence be `"so clear as to leave no substantial doubt"; "sufficiently strong to command the unhesitating assent of every reasonable mind."' [Citation.] It retains validity today." (Id. at p. 919, italics added.) Appellants argue the trial court was required to instruct the jury with the full description of the clear and convincing evidence standard set out in In re Angelia P.
Courts have rejected similar arguments directed at BAJI No. 2.62, which defines clear and convincing proof as "evidence of such convincing force that it demonstrates, in contrast to opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof," without the additional language from In re Angelia P., supra, 28 Cal.3d 908. (See People v. Mabini (2001) 92 Cal.App.4th 654, 662 [112 Cal.Rptr.2d 159] (Mabini); Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1165 [74 Cal.Rptr.2d 510]; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847-850 [60 Cal.Rptr.2d 780] (Mattco Forge); Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal.App.3d 793, 804 [274 Cal.Rptr. 139].)
In Mabini, the court explained that, in the early 1990's, Division Three of this district had criticized BAJI No 2.62 in dicta. (Mabini, supra, 92 Cal.App.4th at p. 660, citing Mock v. Michigan Millers Mutual Ins. Co. (1992)
We decline to hold that CACI No. 201 should be augmented to require that "the evidence must be `so clear as to leave no substantial doubt' and `sufficiently strong as to command the unhesitating assent of every reasonable mind.'" Neither In re Angelia P., supra, 28 Cal.3d 908, nor any more recent authority mandates that augmentation, and the proposed additional language is dangerously similar to that describing the burden of proof in criminal cases. (Mattco Forge, supra, 52 Cal.App.4th at p. 849.) The trial court did not err in rejecting it.
One contested issue at trial was whether Nevarrez should have been restrained by a device fastening him to his bed or by installing side rails on the bed. The facility's administrator testified that side rails are considered a restraint when used to prevent a person who can walk from getting out of bed. The interdisciplinary team which met after each of Nevarrez's falls
Nevarrez's expert testified that restraints, such as padded side rails, should have been implemented during the first stay at San Marino, and the failure to do so, or to formally require a written refusal of a restraint, fell below the standard of care. There was conflicting evidence whether restraints were discussed with Nevarrez and his family and whether he or the family refused restraints. But it was undisputed he did not sign the form to formally refuse a restraint.
Appellants' special jury instructions Nos. 6 through 9 tracked the language of state regulations on the use of restraints: No. 6. "Restraints shall only be used with a written order of a licensed healthcare practitioner acting within the scope of his or her professional licensure." (Former Cal. Admin. Code [now Cal. Code Regs.], tit. 22, § 72319, subd. (b).) No. 7. "The only acceptable forms of physical restraints shall be cloth vests, soft ties, soft cloth mittens, seat belts and trays with spring release devices. Soft ties means soft cloth which does not cause abrasion and which does not restrict blood circulation." (Cal. Code Regs., tit. 22, § 72319, subd. (c).) No. 8. "Restraints of any type shall not be used as punishment, as a substitute for more effective medical and nursing care, or for the convenience of staff." (Cal. Code Regs., tit. 22, § 72319, subd. (d).) No. 9. "The requirements for the use of physical restraints are: [¶] (1) Treatment restraints may be used for the protection of the patient during treatment and diagnostic procedures such as, but not limited to, intravenous therapy or catheterization procedures. Treatment restraints shall be applied for no longer than the time required to complete the treatment. [¶] (2) Physical restraints for behavior control shall only be used on the signed order of a physician, or unless the provisions of section 1180.4(e) of the Health and Safety Code apply to the patient, a psychologist, or other person lawfully authorized to prescribe care, except in an emergency which threatens to bring immediate injury to the patient or others. In such an emergency an order may be received by telephone, and shall be signed within 5 days. Full documentation of the episode leading to the use of the physical restraint, the type of the physical restraint used, the length of effectiveness of
The trial court rejected these instructions on the ground that the use-of-restraint regulations did not "rise to the level of law." This was not a correct conclusion. A party may "base instructions on relevant state or federal regulations" since "[l]ike statutes, applicable regulations are a `factor to be considered by the jury in determining the reasonableness of the conduct in question.'" (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 523 [95 Cal.Rptr.2d 336].)
But the court was correct to question whether all use-of-restraint regulations were relevant. Instruction No. 6, that restraints should be ordered by a physician, was relevant in light of the physician's refusal to order them during Nevarrez's first stay at the facility. But without any evidence of an emergency or of treatment requiring restraints, it is unclear why instruction No. 9 was relevant. Similarly unclear is the relevance of instruction No. 7, on acceptable forms of restraints, which does not list bed rails even though there was testimony that bed rails are considered a form of restraint. Appellants argue their "theory of defense was in particular the subject of" instruction No. 8, "[r]estraints of any type shall not be used ... as a substitute for more effective medical and nursing care, or for the convenience of staff." While this language may be relevant, the proposed instruction quoted the full language of the regulation, which also prohibits the use of restraints as punishment. (Cal. Code Regs., tit. 22, § 72319, subd. (d).) That particular use of restraints was not at issue in this case.
The instructions, based solely on the text of the use-of-restraint regulations, were also incomplete pinpoint instructions. "In a proper instruction, `[w]hat is pinpointed is not specific evidence as such, but the theory of the defendant's case.' [Citation.]" (People v. Wright (1988) 45 Cal.3d 1126, 1137 [248 Cal.Rptr. 600, 755 P.2d 1049].) Appellants argue that they were entitled to these instructions since the evidence supported a defense of regulatory compliance. But the use-of-restraint regulations, on their own, did not pinpoint that defense. Nor did they make clear that regulatory compliance "does not necessarily eliminate negligence"; instead, it "constitutes evidence for jury consideration with other facts and circumstances. [Citations.]" (Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1830-1831 [34 Cal.Rptr.2d 732].)
"`Although a party is entitled to instructions on his theory of the case, if reasonably supported by the pleadings and the evidence, instructions must be properly selected and framed. The trial court is not required to give instructions which are not correct statements of the law or are incomplete or
Respondent cites the proposition that, to be complete, instructions on regulatory compliance must make clear that such compliance is not a complete defense. (See Dragash v. Western Pac. R. R. Co. (1958) 161 Cal.App.2d 233, 241-242 [326 P.2d 649] [error to refuse plaintiff's instruction that defendant's statutory compliance is not complete defense]; Pennington v. Southern Pac. Co. (1956) 146 Cal.App.2d 605, 613 [304 P.2d 22] [same].) Appellants argue the cases show it was "incumbent upon" Nevarrez to seek clarifying instructions. That may have been the case had the court actually given appellants' use-of-restraint instructions. (See Carrau v. Marvin Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 296-297 [112 Cal.Rptr.2d 869] [objection or qualifying instruction required to avoid waiver when jury instruction incomplete].) But the court was not required to give the use-of-restraint instructions if they were incomplete, and the doctrine of waiver is inapplicable. The instruction that following a custom and practice does not excuse unreasonable conduct did not independently supply the missing element of appellants' instructions since customs and practices do not necessarily derive from statutes and regulations.
We conclude that the court did not err in rejecting appellants' proposed jury instructions based on the use-of-restraints regulations. Some of the regulations appear to have been irrelevant, and none was framed as an instruction on regulatory compliance. As proposed, the instructions did not provide guidance to the jury on how appellants' theory of defense would apply.
Appellants argue the entire jury verdict was tainted by the erroneous admission into evidence of the citation issued by the DPH. We review a trial court's ruling on the admissibility of evidence for abuse of discretion. (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111 [88 Cal.Rptr.3d 778].) The error is reversible if it resulted in a miscarriage of justice. (Id. at p. 1114.)
San Marino self-reported Nevarrez's April 24, 2009 fall to the DPH, and a DPH investigator issued a class A citation and a statement of deficiencies on March 2, 2010. Under the Long-Term Care, Health, Safety, and Security Act of 1973 (Health & Saf. Code, § 1417 et seq.), class A citations are issued when a nursing facility is determined to have violated a state or federal law or regulation relating to its operation or maintenance and the violation presents imminent danger or substantial probability of death or serious harm to a patient or resident. (Health & Saf. Code, §§ 1423, subd. (a), 1424, subd. (d); see California Assn. of Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284, 291 [65 Cal.Rptr.2d 872, 940 P.2d 323].)
The citation included the nursing home's plan of corrections, as well as the investigator's review of Nevarrez's records, three staff declarations, and an exit interview with the facility's administrator. It also included the investigator's conclusion that the April 24, 2009 fall could have been averted had staff answered Nevarrez's alarm right away and that it caused Nevarrez to sustain a subdural hematoma which required an emergency craniotomy and hospitalization.
Nevarrez made a motion in limine to have the citation admitted into evidence. He argued it was admissible to establish negligence per se under Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233 [132 Cal.Rptr.2d 765] (Norman), and it fell within the exception to the hearsay rule for official records in Evidence Code section 1280.
At the hearing on the motions in limine, appellants' counsel argued the DPH investigator's opinions and conclusions improperly encroached on the jury's role as a fact finder. The court noted it was "troubled by the admissibility of the actual citation" and intended to look into the issue further. It granted appellants' motion in limine to preclude the parties' experts from expressing opinions whether appellants violated any particular statute or regulation. The next day, the court granted Nevarrez's motion in limine to introduce the citation, ordering only that any hearsay statements within it be redacted. The court stated its ruling was consistent with Norman, supra, 107 Cal.App.4th 1233, where a DHS representative testified to his finding of violations at a nursing home. Appellants' counsel questioned whether, under the court's ruling, the DPH investigator would be allowed to testify about his opinion that the violation of the federal regulation satisfied the requirement for a class A citation. The court responded it would "have to take that up ... more in the context of the testimony."
At trial, a custodian of records testified generally that the citation was an official DPH record. When it became clear that the DPH investigator who issued the citation would not testify,
The citation was redacted to remove references to the three staff declarations. The plan of corrections, the reference to the exit interview with the facility's administrator, and the investigator's opinions and conclusions were not redacted. The citation was referenced repeatedly during the examination of various witnesses, and was the cornerstone of the closing argument by Nevarrez's counsel. Counsel claimed generally: "[T]he state came in and investigated the facts. [¶] ... [DPH] came in and conducted their investigation, exhibit one in this case is the class A citation. [¶] ... [¶] Credibility of the evidence on liability or fault, we have the state's class A citation the highest citation that can be delivered against a nursing home in a live plaintiff. [¶] If the defense wanted to challenge that, this is the place to do it. Call witnesses, subpoena the investigator from DPH ... [The] class A citation is an official document and it's just like we had somebody up there repeating it 20 times over ...."
Counsel argued the citation "already determined" there were violations of the Patient's Bill of Rights. He also argued there was negligence per se "because of the class A and the deficiency." The jury was given a negligence per se instruction specifically incorporating the violations on which the citation was based. With respect to this instruction, counsel told the jury: "[S]o if you look at exhibit one, that class A citation, you'll see this is the specific violation[;] the regulation[] has already been deemed violated, it's been found by the department that has nurses and doctors that review it, work it up, and issue ..., so that's why, and I don't mean any cavalier approach actually to the jury, but the bill of rights and the negligence issues have largely been determined for you." Counsel argued the citation determined the issue of causation since the investigator stated "these violations presented ... a substantial probability that death or serious physical harm would result." Counsel told the jury: "The only thing that wasn't determined in the class A is, is this an elder abuse case. You folks decide this." But despite this disclaimer, counsel led his argument on elder abuse with the citation and referred the jury to his earlier discussion of causation.
"A court abuses its discretion if its ruling is `"so irrational or arbitrary that no reasonable person could agree with it."' [Citation.] A court's discretion also is limited by the applicable principles of law. [Citation.]" (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 187 [153 Cal.Rptr.3d 693].)
In initially ruling that the citation was admissible, the court relied on Norman, supra, 107 Cal.App.4th 1233. That reliance was misplaced. Norman held the trial court in that case erred in refusing to give a negligence per se instruction when that instruction was supported by a DHS investigator's testimony that he found the defendant nursing home had violated certain regulations. (Id., at pp. 1243, 1247-1248.) The Norman court did not address the admissibility of the DHS investigator's testimony. A case is not authority for a proposition the court did not consider. (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [53 Cal.Rptr.2d 81, 916 P.2d 476].) Although the DHS investigator was allowed to testify to his conclusions, Norman does not render such testimony per se admissible. Similarly, in Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 [50 Cal.Rptr.3d 266], the court found that a deficiency issued by the DHS raised triable issues of material fact regarding elder abuse, but it did so in the absence of an objection to the admissibility of DHS's records and expressly declined to hold that the records were "per se admissible" (id. at p. 89, fn. 8). In contrast, here the trial court was specifically asked to decide whether the citation was admissible. By relying on Norman, the court in essence avoided doing so.
Respondent argues the citation is admissible under the official records exception in Evidence Code section 1280. That section provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act,
Respondent argues the trustworthiness of the citation was established by the custodian of records, and the statutory presumption that official duties are properly performed (Evid. Code, § 664) shifted the burden to appellants to show the DPH investigator failed to accurately observe and record events. Appellants argue the citation lacks trustworthiness because it was issued a year after the April 24, 2009 incident and was based on the investigator's review of records and statements by San Marino staff. Indeed, with the exception of the investigator's personal observation that Nevarrez's room was 18 to 20 yards away and around a corner from the nurses' station, the citation relies on other sources of information, none of which qualifies for the official duties presumption. Because of that, the citation is not comparable to reports by public officers that are based on observations of other public employees. (See, e.g., Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6 [102 Cal.Rptr.2d 157].)
As to the investigator's opinions and conclusions, appellants relied on Pruett v. Burr (1953) 118 Cal.App.2d 188, 201 [257 P.2d 690] to argue that "`[n]otwithstanding the general rule that public records and reports are admissible in evidence, the courts almost universally exclude statements contained in such reports or records concerning the cause of or responsibility for an injury to the person or damage to property.' ... `One ground on which such a report is excluded is that the statement as to the cause of or responsibility for the occurrence is a mere statement of opinion, and that since the officer or employee would not be permitted to state his opinion if on the witness stand, there is all the more reason for excluding his statement of opinion when he is not under oath and is not subject to cross-examination.'" The court admitted the citation on the assumption that the investigator's opinions were admissible because they were based on the investigator's own observations. This assumption was inconsistent with the court's ruling that the citation be redacted to remove any hearsay. That ruling indicated the investigator's opinions were not solely or primarily based on his own observations or on admissible hearsay.
In ruling that the parties' experts could not testify that appellants violated any particular laws, the court apparently agreed that such testimony would be an improper legal conclusion and would interfere with the jury's function as a fact finder. The correctness of this ruling has not been challenged. Whether or not the DPH investigator qualified as an expert witness, there would have been no rational basis for treating him any differently than the parties' expert witnesses and allowing him to opine that San Marino violated the law.
Additionally, the admission of the class A citation created the risk that it would be used to establish not only that a regulation was violated for purposes of negligence per se, but to insinuate, as Nevarrez's counsel did, that appellants must be liable because "the state" issued San Marino "the highest citation that can be delivered against a nursing home," short of a citation based on a resident's death. Appellants initially objected under Evidence Code section 352. The record does not indicate that the court balanced the probative value of the citation against the danger of undue prejudice or jury confusion. Although appellants have not specifically cited Evidence Code section 352 on appeal, they complain that the citation was largely used to predetermine the case and confuse the jury. We agree, and conclude that the trial court abused its discretion in admitting it into evidence.
A miscarriage of justice occurs if, based on the entire record, including the evidence, it is reasonably probable the jury would have reached a result more favorable to appellants absent the error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [16 Cal.Rptr.3d 374, 94 P.3d 513].) "`"[P]robability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" (Ibid.)
This cause of action was based on Health and Safety Code section 1430, subdivision (b), which allows a resident or patient of a skilled nursing facility to "bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patient's Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation." Appellants argue the jury's finding of 14 violations of the Patient's Bill of Rights should be reversed because the citation was the centerpiece of the closing argument by Nevarrez's counsel. Nevarrez's counsel did argue the citation already had determined that the Patient's Bill of Rights was violated. But the special verdict indicates the jury was not misled by this argument.
One alleged violation was of the right to be "free from mental and physical abuse." (Cal. Code Regs., tit. 22, § 72527, subd. (a)(10).) Nevarrez's counsel argued that the citation "unequivocally answered" that such a violation occurred. The jury rejected counsel's argument, finding no such violation. Another alleged violation was of Health and Safety Code section 1599.1, subdivision (a), which states: "The facility shall employ an adequate number of qualified personnel to carry out all of the functions of the facility." The jury found this provision was violated on six days. But this finding was not based on the citation, which did not address understaffing. Rather, the finding was based on the testimony of Nevarrez's expert about nursing hours reflected in a key factor report, which both counsel referenced in closing argument.
The third alleged violation was of the right "[t]o receive all information that is material to an individual patient's decision concerning whether to accept or refuse any proposed treatment or procedure. The disclosure of material information for administration of ... physical restraints ... shall include the disclosure of information listed in Section 72528(b)." (Cal. Code Regs., tit. 22, § 72527, subd. (a)(5).) This requires disclosing "[t]hat the patient has the right to accept or refuse the proposed treatment, and if he or she consents, has the right to revoke his or her consent for any reason at any time." (Cal. Code Regs., tit. 22, § 72528, subd. (b)(6).) The citation said nothing about restraints or disclosure of information, and Nevarrez's counsel did not argue that it established a violation of these regulations. Instead, counsel focused on the undisputed evidence that Nevarrez had not signed a form either accepting or refusing restraints. Based on that, counsel argued
We find no indication that the citation played any role in the jury's finding of violations of the Patient's Bill of Rights. The DPH investigator did not find any such violations, and the jury apparently rejected the invitation by Nevarrez's counsel to defer to the citation, relying instead on other evidence counsel highlighted in his closing argument. Finding no prejudice, we affirm the portion of the jury's verdict on the Patient's Bill of Rights.
Each of the negligence per se instructions given in this case incorporated either a regulation or a statute that Nevarrez claimed appellants had violated. These included three state regulations and one state statute: "Each facility shall employ sufficient nursing staff to provide a minimum of 3.2 nursing hours per patient day" (Cal. Code Regs., tit. 22, § 72329.1, subd. (f).); "[n]ursing service shall include, but not be limited to, the following: [¶] ... [¶] ... Implementing of each patient's care plan according to the methods indicated. Each patient's care shall be based on this plan" (Cal. Code Regs., tit. 22, § 72311, subd. (a)(2)); "[p]atients shall have the right [¶] ... [¶] ... to be free from mental and physical abuse" (Cal. Code Regs., tit. 22, § 72527, subd. (a)(10)); and "[t]he facility shall employ an adequate number of qualified personnel to carry out all of the functions of the facility" (Health & Saf. Code, § 1599.1, subd. (a)). The negligence per se instructions also incorporated the federal regulation on which the citation was based: "The facility must ensure that — [¶] (1) The resident environment remains as free of
As to each negligence per se instruction, the jury was told: "If you decide that San Marino Skilled Nursing and/or Country Villa violated this law, and two, that the violation was a substantial factor in bringing about the harm, then you must find that San Marino Skilled Nursing and/or Country Villa was negligent unless you also find that the violation was excused. [¶] If you find that San Marino Skilled Nursing and/or Country Villa did not violate this law, or that the violation was not a substantial factor in bringing about the harm, or if you find the violation was excused, then you still must decide whether San Marino Skilled Nursing and/or Country Villa was negligent in light of the other instructions."
In closing argument, Nevarrez's counsel referred the jury to the citation, arguing that DPH, which "has nurses and doctors" who work up, review and issue citations, already had found a regulatory violation, so that the "negligence issues have largely been determined for you." Similarly, counsel argued DPH already had determined the issue of causation. The jury found appellants negligent, but the special verdict form does not indicate under what theory.
Since the jury was instructed that it could find defendants negligent based solely on the violations of the federal regulation on which the citation also was based, and counsel represented to the jury that DPH already had determined the negligence issues, it is reasonably probable that the citation influenced the jury's decision on negligence. This is equally so because Nevarrez's counsel insinuated that the citation, a result of a "state" investigation of the facts, impeached the credibility of appellants' expert witnesses, whom counsel characterized as "hired experts." Thus, the citation was offered essentially as an endorsement by the government of Nevarrez's case against appellants.
The DPH investigator's findings were that the facility failed to visually monitor Nevarrez around the clock, contrary to his care plan, and failed to respond to his personal alarm in a timely manner. These findings were not overwhelmingly supported by the evidence. Rather, the evidence was in dispute whether around-the-clock visual monitoring was part of Nevarrez's care plan at the time of his ninth fall, on April 24, 2009. The facility administrator testified visual monitoring was an unusual measure implemented for 24 hours after the April 21 fall. It was not listed among the intervention measures to be continued after the April 23 fall. Appellants' expert testified that the standard of care did not require constant monitoring.
Of the other negligence per se theories, one was based on a violation of the right to be free from mental and physical abuse. (Cal. Code Regs., tit. 22, § 72527, subd. (a)(10).) As we have explained, the jury expressly found this provision of the Patient's Bill of Rights was not violated, and it is therefore unlikely that the negligence verdict could have been based on this theory.
Two other negligence per se theories were premised on violations of staffing laws. (Health & Saf. Code, § 1599.1, subd. (a); Cal. Code Regs., tit. 22, § 72329.1, subd. (f).) While the jury found six violations of the Patient's Bill of Rights based on understaffing, that cause of action did not require it to determine causation. But causation was required for the finding of negligence. De La Victoria testified the delay in his response to Nevarrez's alarm was due to the fact that he was helping another patient. He also testified fewer nurses were working that night shift. But whether understaffing caused De La Victoria's delay in response was disputed, as was whether the delay caused Nevarrez's injury. Yet, the DPH investigator concluded the two-minute delay in responding to Nevarrez's alarm was unreasonable and as a result Nevarrez was injured. Counsel argued to the jury that the DPH determined the issue of causation. Thus, it is reasonably probable that the jury's finding of causation on this theory was influenced by the citation. Another negligence per se theory was based on a violation of a state regulation regarding the implementation of a patient's care plan. (Cal. Code Regs., tit. 22, § 72311, subd. (a)(2).) That theory also overlapped with one of the violations found by the DPH investigator. Thus, none of the theories on which the negligence verdict could have been based was insulated from the effect of the citation.
The jury found neglect and recklessness by clear and convincing evidence. Respondent argues the citation was merely cumulative and the jury verdict was overwhelmingly supported by other evidence. We agree with appellants that it begs the question why Nevarrez's counsel relied on the citation so heavily and urged the jury to do the same if the evidence were indeed overwhelming.
Respondent's claim that the facility never assisted Nevarrez on his trips to the bathroom is not supported by the record, which indicates that he was provided with "limited assists" on transfers from his bed "to the chair to the wheelchair to the toilet." We already noted that the appropriateness of using restraints during Nevarrez's first stay at the facility was disputed, as was the promptness and appropriateness of the two nurses' response on the night of his ninth fall. Whether the facility was understaffed also was disputed, as was the relevance of understaffing and other alleged violations, to Nevarrez's
We conclude that the erroneous admission of the citation tainted the jury verdict on elder abuse, and we reverse that portion of the verdict.
The trial court awarded $500 for each of the 14 violations of the Patient's Bill of Rights that the jury found, for a total of $7,000 in civil penalties under this provision. We agree with appellants that these penalties were excessive.
Health and Safety Code section 1430 is part of the Long-Term Care, Health, Safety, and Security Act of 1973 (Health & Saf. Code, § 1417 et seq.). As we already explained, section 1424 of that act authorizes the issuance of class AA, A, and B citations. It also authorizes a range of
The judgment is affirmed solely as to the jury's verdict on the Patient's Bill of Rights. In all other respects the judgment is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.
Appellants are entitled to their costs on appeal.
Willhite, J., and Suzukawa, J., concurred.
