IS THE PENDULUM BEGINNING TO SWING THE OTHER WAY?

That’s a very interesting question.  As a claims professional, we started to see the “Florida” law firms come to California in the late 90’s and early in the new century.  Elder law was relatively new and the “Florida” firms opened shop and cleaned up.

As the years went by, the defense bar started to catch up and we started to see many defense verdicts.

Over the past twelve months, in California alone, there have been at least 5 eight-figure verdicts, one reaching nine-figures.  So that begs the question…Is the pendulum beginning to swing the other way?

As a neutral third party mediator, I do not have a specific answer for this question.  However, it does tell me there is risk out there, potentially HUGE risk for both sides.  If not acknowledged by both plaintiffs and defense, many more multi-million dollar plaintiffs’ verdicts will continue along with an increase in defense verdicts.

Unsettled law still surrounds the environment of elder abuse cases; these recent verdicts and the inevitable ensuing appeals could very well result in clarification of the law which undoubtedly will favor one side or the other.

The only piece of advice I would offer to plaintiffs and defendants is to take a hard look, possibly with a slightly different perspective, at your cases, and make the hard business decisions on when it really is the right time to suck it up and settle. 

As in all settlements, you’re going to pay more than you want or receive less than expected, but believe me, and believe the parties on both sides of all these multi-million dollar plaintiff’s awards and defense verdicts, it’s better to collect now and/or unload a liability than to be one of the parties on the end of a huge adverse verdict.

Why am I writing about this?  Our population is getting older and counsel on both sides is getting more sophisticated.  The time for chest beating and bravado is over.  Get your cases into mediation with mediators who have experience in elder care, from a judicial, legal and especially a claim perspective.

Elder law comprises nearly 50% of my mediation practice. (My remaining practice is well supported in the fields of medical, legal and broker/agent malpractice, healthcare, entertainment, coverage/bad faith, contracts, commercial, general, employment practices and product liability, personal injury, catastrophic injury and many other fields).  I’ve worked with some of the most talented attorneys (plaintiff and defense) and insurance companies and know how to settle these cases.  I have spent the past thirteen years working on elder law matters and know the many challenges these cases present.  Using my creativity and experience, I have, with much success, worked through those challenges with all the parties.

If the plumbing in your house goes, you don’t call an electrician.  When you have an elder abuse case you want to settle, you don’t call a mediator with little to no experience in the field.  You call one who has investigated, reviewed records and has settled scores of cases.  You call one who the insurance industry trusts and one who is respected by the plaintiff and defense bars…you call me.

From the plaintiff’s side, the shorter the time a file sits on a shelf, the faster the money gets into your and your client’s pockets.  From the defense side, the faster you eliminate an unwanted liability for your client, the more loyal they become and the likelihood increases that the one file will be replaced by two from that carrier.  And from the carrier side, the faster you know about the true exposure, earlier and more accurate reserves can be posted with the possibility of swiftly closing another file thereby reducing your pending and that continuing headache. 

This is the insight a mediator from the claims world brings to the mediation table…an understanding of all the stakeholder’s concerns, weaknesses and strengths.

Jury Awards $114 Million In Lawsuit against Nursing Home

Verdict for family of Juanita Jackson, 76, of Winter Haven, who died in 2003, is one of largest ever by a Polk County jury.

By Jason Geary
THE LEDGER

Published: Thursday, July 22, 2010 at 12:10 a.m.
Last Modified: Thursday, July 22, 2010 at 12:10 a.m.

“A Florida jury has ordered a local nursing home to pay $114 million to the family of a 76-year-old woman who was allegedly abused while staying at the home, and that abuse led to her death. According to the lawsuit, Juanita Jackson suffered “pressure sores, overmedication, malnourishment and dehydration” during her stay at Integrated Health Services in Auburndale, Fla. The jury awarded $14 million in damages and $100 million in punitive damages to Jackson’s family.”  

The Ledger  07/22/2010

http://www.theledger.com/article/20100722/NEWS/7225041?Title=-114-Million-Awarded-in-Abuse-Case

Internet – It is not unlawful to send spam from multiple domain names for the purposes of bypassing filters

Craig E. Kleffman v. Vonage Holdings Corp. et al., 2010 DJDAR 9263 (June 21, 2010).

This case decided by the California Supreme Court interpreted Business and Professions Code section 17529.5 which provides that it is unlawful to advertise in a commercial electronic mail advertisement (commonly known as “spam”) if the advertisement contains or is accompanied by a false, misrepresentation or forged header information.  The specific issue presented was whether under this section it is unlawful to send commercial email advertisements from multiple domain names for the purpose of bypassing spam filters.  The Supreme Court held that it was not illegal to do so under this code section.  The court found that a single email with an accurate and traceable domain name which neither contains nor is accompanied by misrepresented header information makes no affirmative representation or statement of fact that is false pursuant to the code section.

Pharmacy Liability – Pharmacy is not liable for damages under Drug Dealer Liability Act where it did not knowingly market drugs sold by its employee

Melody Wittemore et al., v. Owens Healthcare – Retail Pharmacy, Inc. etc. et al., 2010 DJDAR 9463 (June 22, 2010).

This action involved interpretation of the Drug Dealer Liability Act (the Act) which is found under Health and Safety Code sections 11700 et. seq.  The act authorizes the user of an illegal controlled substance to recover damages resulting from its use from those who knowingly market the substance.  It extends to substances for which a prescription is required.  The question in this case was whether a pharmacy can be held liable for the act or the conduct of an employee who furnishes stolen prescription drugs to the plaintiff. 

 In this matter, the plaintiff bought black market prescription pain medications from the defendant pharmacy’s employee to which she became addicted.  Plaintiff and her husband thereafter sued the employee and his employer pharmacy, from whom they allege the employee obtained the illegal controlled substance on the ground that the pharmacy failed a legal duty to the plaintiff’s to discover and report the substance had been stolen from them.  The trial court sustained the pharmacy’s demurrer ruling that the plaintiff’s could not bring a cause of action under the act.  The plaintiff’s appealed.  The appeals court affirmed the trial court’s ruling finding that the act extends liability only to a person “who knowingly participates in the marketing of illegal controlled substances within this state…” (see section 11704).  The appeals court found that the pharmacy did not knowingly market the illegal controlled substances to the plaintiff.

Collateral Source – Trial court violates collateral source rule by reducing personal injury victim’s medical damages to amount paid by her medical insurers

Ana Silva Yanez v. Soma Environmental Engineering, Inc., et al., 2010 DJDAR  9720  (June 24, 2010).

Defendant was found negligent by a jury in causing injuries and damages to the plaintiff including significant medical damages.  After judgment was entered, the defendant successfully moved to reduce the medical award by the amount actually accepted by the plaintiff’s medical providers as payment in full from her health insurers.  Plaintiff appealed the reduction of the award as having violated the collateral source rule. 

 The appeals court reversed and remanded.  The court found that a wrongdoer cannot take advantage of the contracts that may exist between the injured person and third persons.  Thus, the collateral source rule provides that the compensatory damages recoverable from a tortfeasor in a personal injury case should not be reduced merely because the victim also receives compensatory benefits from independent or collateral sources, such as insurance.  Here, the trial court reduced the plaintiff’s damages to the amount actually paid by her insurers.  The amount written off by the plaintiff’s insurers constituted collateral benefits of her insurance in violation of the collateral source rule.  Thus, the trial court’s reduction was made in error.

This case deals with the still unsettled issue of how much of a person’s medical bills an injured party may in a personal injury lawsuit.   In Yanez v. Soma Environmental Engineering, Inc. the appeals court found that the trial court erred in reducing plaintiff’s award for medical expenses to the amount actually accepted by plaintiff’s medical providers as payment in full under their contracts with plaintiff’s private health insurers.   The appeals court held that amounts written off by a health care provider pursuant to its contract with a private insurer may be recovered as damages under the collateral source rule.

A similar case is now before the California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc., 179 Cal.App.4th 686 (review granted March 10, 2010, No. S179115).     Until the recent decision in Howell, case law in California suggested that compensatory damages should be limited to the amount actually expended by the injured party.  But the appeals court in Howell found that the collateral-source rule entitled injury victims to a recovery of the full reasonable value of reasonable medical services received.  The Yanez court followed suit, but not before the Supreme Court unanimously agreed to review Howell.     The California Supreme Court could entertain a concurrent review of Yanez and a comprehensive opinion addressing the issues raised in both cases.

Res Ispa Loquitor – Jury instruction is valid where doctor involved in leaving drain in patient’s abdomen requires expert testimony to establish res ispa loquitor

William Scott et al., v. Constanze Rayhrer., 2010 DJDAR 100067  (June 1, 2010).

Plaintiff sued his physician related to a medical malpractice claim.  Plaintiff contended that a drain inserted after surgery was left in the plaintiff’s abdomen and not discovered and removed until twenty months later.  Plaintiff contended that the trial court erred in denying his request for a res ipsa loquitur instruction as to the doctor, instructing the jury that a finding of res ipsa loquitor against the doctor must be based on expert testimony, and refusing to instruct the jury that meeting the community standard of care does not excuse unreasonable conduct.  The appeals court affirmed the trial court’s ruling. 

         The appeals court held that expert testimony generally is required in every professional negligence case to establish the applicable standard of care, but an exception exists when a foreign object such as a surgical instrument is left in a patient following surgery and when a plaintiff can invoke the doctrine of res ipsa loquitur.  In such a case, negligence is a matter of common knowledge amongst laymen and expert testimony is unnecessary.  Plaintiff claimed the drain is similar to a sponge or clamp left in the patients’ body after surgery and is thus applicable to a res ipsa loquitur instruction without expert testimony.  The trial court disagreed and determined the drain was not inadvertently left during surgery, it was inserted after surgery and was meant to be retained temporarily.  The entire circumstance required complex medical procedures beyond the comprehension of a layman and which could only be explained by an expert.  As such, the trial court did not err in its instruction for expert testimony.

Insurance – Uninsured motorist whose coffee spilled on her in Jack in the Box drive-through is barred from seeking non-economic damages

Teckla Chude v. Jack in the Box Inc., 2010 DJDAR 7966 (May 27, 2010).

Plaintiff, uninsured driver suffered burns when she spilled coffee she had just purchased at a drive through window of defendant’s facility.  Her negligence action was resolved after the trial court granted the defendant’s motion for summary of adjudication of the plaintiff’s claim for non-economic damages.  The court relied on Proposition 213, Civil Code section 3333.4 which bars uninsured motorists and convicted drunk drivers from recovering non-economic damages in certain cases.  At issue in the plaintiff’s appeal was whether section 3333.4 precludes the plaintiff from recovering an award of non-economic damages.  The appeals court affirmed the trial court’s judgment holding that this code section did bar a claim for non-economic damages.

Blood Transfusions – Juvenile court lacks jurisdiction to order minor with sickle cell anemia, who is on of Jehovah’s Witnesses, to undergo blood transfusion

 San Joaquin County Human Services Agency v. Marcus W.,  2010 DJDAR  8135  (June 2, 2010).

The plaintiff county sought to enforce an order by the juvenile court requiring a 16 year old to undergo periodic blood transfusions to prevent him from suffering a third stroke and possible death.  The minor, a Jehovah’s Witness, opposed transfusions as contrary to his religious beliefs.  The appeals court concluded that the juvenile court lacked jurisdiction to issue the order because the requirements of Welfare and Institutions Code section 369 were not met.  Section 369 provides the juvenile court with jurisdiction to order the performance of necessary medical care for a minor only when (1) the minor has been taken into temporary custody or a licensed health care professional recommends that the minor needs medical, surgical, dental or other remedial care and (2) that the minor’s parent, guardian, or person standing in loco parentis is unwilling or incapable of authorizing such care.

         Here, the juvenile court did not have jurisdiction based upon the facts of this case to order the minor to undergo blood transfusions against his will and over the objection of his parents.  The court found that the legislature does establish a procedure by which the jurisdiction of the juvenile court maybe invoked to authorize necessary medical care for minors whose parents are unwilling, for religious reasons or otherwise, to provide such care as in this matter.  The authority for this application falls under section 300 of the Welfare and Institutions Code which provides jurisdiction to the juvenile court to adjudicate a minor to be dependant adult of the court if “[t]hat child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted non-accidentally upon the child by the child’s parent or guardian” (subdivision a).  Application of the statute has been made in instances where medical treatment has been refused for a minor by the parents.

Tobacco Sales – City ordinance banning tobacco sales at stores like Walgreens, but not grocery stores or big box stores, does not pass rational basis review

Walgreen Co. v. City and County of San Francisco, et al., 2010 DJDAR 8542 (June 8, 2010).

A city ordinance banned the sale of tobacco products in certain retail establishments that contain a pharmacy.  The ordinance was premised on the notion that a retail store conveys approval of tobacco use when it sells both tobacco and prescription drugs.  The plaintiff filed suit against the city and county claiming the ordinance violated equal protection because there was no rational basis for prohibiting stores with pharmacies from selling tobacco products while allowing such sales in other stores that also contained pharmacies such as grocery stores and “big box” stores.  The trial court sustained the demurrer because it determined the ordinance passed constitutional muster.  The plaintiff appealed. 

         The appeals court reversed the trial court’s ruling.  The appeals court found that the city was concerned with customers being more likely to perceive a tacit message that smoking is not harmful when tobacco products are sold in stores like the plaintiff’s, as opposed to sales of such products at a supermarket or a big box store.  The court found no reason to believe the implied message conveyed by the plaintiff was any different from that conveyed by a supermarket or big box store.  Thus, the plaintiff’s complaint adequately stated an equal protection claim and a trial court erred in sustaining the city’s demurrer.

Negligence – Termite inspector does not owe duty to care to injured guest of owner whoes property was inspected

Kelly Formet v. TheLloyd termite Control Co., 2010 DJDAR 8738 (June 10, 2010).

This claim was brought by a guest on a property whose previous owner had contracted with a termite control company (defendant).  The plaintiff fell from a balcony on the property.  After his injury he filed suit against the defendant for allegedly failing to discover and disclose dry rot damage, which he claimed caused a weakening of a rail and thus the reason why he fell.  The trial court granted the defendant’s motion for summary judgment and the appeals court affirmed.  Both the trial and appeals court found that a duty was owed to the property owner not to the guest.  Moreover, the defendant could not prove whether a recommendation to hire a licensed contractor to repair the damage would result in the property owner doing so.