Archive for July, 2010

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.

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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.

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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.

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$29 MILLION VERDICT UPHELD AGAINST ROCKLIN NURSING HOME FIRM

Sacramento Bee

By Cynthia Hubert
chubert@sacbee.com

Published: Wednesday, Jul. 14, 2010 – 12:00 am | Page 1B

Last Modified: Wednesday, Jul. 14, 2010 – 10:10 am

In a strongly worded ruling, a Sacramento Superior Court judge has upheld a $29 million verdict against a Rocklin nursing home company in the 2005 death of an elderly patient.

Judge Roland Candee on Tuesday rejected Horizon West Healthcare’s arguments for a new trial or significantly reduced damages in the case involving Stockton native Frances Tanner.

Candee said “overwhelming” and “devastatingly powerful” evidence in the trial in May supported the jury’s verdict and damage awards against Horizon, which owns 33 nursing homes mostly in Northern California.

In his written ruling after Tuesday’s hearing, the judge called the trial “a classic demonstration of how well the jury system works.”

Candee said panel members were unimpressed by the testimony of staffers of Colonial Healthcare in Auburn, one of Horizon’s facilities, who came across as “overworked, untrained and uncaring.”

Testimony showed that the nursing home company illegally understaffs its facilities and runs its business “based, time and again, predominantly on a concern for the bottom line” instead of compassionate patient care, Candee wrote. He said the jury clearly intended to “discourage future wrongful conduct” in awarding $28 million in punitive damages.

“There is no way, from the court’s perspective, that this case deserves a new trial,” the judge said in court Tuesday after Horizon lawyers Kimberly Wells and Michael Levangie argued their points.

But the matter is not necessarily over. Horizon could appeal or seek a settlement with plaintiff attorneys.

The case revolved around the last months in the life of Tanner, 79, a retired public servant who worked for agencies including the FBI and the Internal Revenue Service. Tanner had mild dementia when she moved into Colonial Healthcare. Seven months later, after a fall that resulted in a hip fracture that went undiagnosed for days, she was dead of an infected bed sore.

Ed Dudensing, who represents Tanner’s daughter Elizabeth Pao in the case, argued during the trial that Horizon was deliberately understaffed and, as a result, provided inadequate care and monitoring. Among the witnesses was a former staff member who said he would not put a family member in the home.

Horizon disputed the charges, with defense attorneys arguing that Colonial took good care of Tanner and was not responsible for the pressure sore that killed her. They presented witnesses who said that the sore likely occurred after Tanner was transferred to a hospital for hip surgery.

The jury ruled that Horizon and Colonial committed elder abuse and awarded $1.1 million in damages for Tanner’s pain and suffering and for her daughter’s loss of companionship. A day later, after hearing evidence about the corporation’s finances including its net worth of about $200 million, the panel made the $28 million punitive award.

Candee reduced the pain and suffering damages to $800,000. Including $1.2 million in attorney’s fees, the total judgment is for $29.1 million, believed to be the largest ever for an elder abuse case in Sacramento County.

In written motions, Horizon’s lawyers contended that the punitive damages are excessive and unsupported by evidence presented in the case. They argued those points and others in court on Tuesday, including a charge that the jury engaged in misconduct by reading an article in The Bee about the case while deliberating damages. Candee rejected most of the arguments out of hand.

“If this was a close-call case, maybe some of your arguments would have power,” he said. “This was an overwhelming case. It does not deserve to be retried. That would be a travesty.”

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Nursing home firm hit with $670-million judgment

July 08, 2010|By Nathan Olivarez-Giles, Los Angeles Times

Nursing home operator Skilled Healthcare Group Inc. was ordered Tuesday to pay more than $670 million in damages for understaffing at its 22 assisted-living facilities in California.

The verdict against the Foothill Ranch company came in Humboldt County Superior Court in a class-action lawsuit brought by patients and family members. The jury found that Skilled Healthcare violated the California health and safety code that requires nursing homes to maintain 3.2 nursing hours per patient per day, said Tim Needham, one of the plaintiff group’s lawyers.

The jury imposed the maximum damages for violating the state statues, plus $58 million in restitution, according to a company statement.

But more damages are possible. The jury will begin meeting next week to determine whether Skilled Healthcare should also pay punitive damages.

The company said in a statement it will appeal.

“We are deeply disappointed in the verdict,” Boyd Hendrickson, chief executive of Skilled Healthcare, said in the statement. “We strongly disagree with the outcome of this legal matter, and we intend to vigorously challenge it.”

News of the verdict caused the publicly held company’s stock price to plunge nearly 75%, to $1.52.

The company has about 14,000 employees. In the first quarter, it had about $189 million in revenue and a profit of $8.9 million, according to a filing with the Securities and Exchange Commission.

Needham said the deficiencies in staffing levels put patients in peril. “The company knows that this lack of staffing causes a higher risk of problems for patients,” he said. “Call lights don’t get answered, persons don’t get proper hygiene, persons don’t get their medications on time or the care they need.”

The suit only applies to assisted-living facilities operated by the company in California. Skilled Healthcare owns others in Arizona, Iowa, Kansas, Missouri, Nevada, New Mexico and Texas. 

Nursing home operator Skilled Healthcare Group Inc. was ordered Tuesday to pay more than $670 million in damages for understaffing at its 22 assisted-living facilities in California.

The verdict against the Foothill Ranch company came in Humboldt County Superior Court in a class-action lawsuit brought by patients and family members. The jury found that Skilled Healthcare violated the California health and safety code that requires nursing homes to maintain 3.2 nursing hours per patient per day, said Tim Needham, one of the plaintiff group’s lawyers.

The jury imposed the maximum damages for violating the state statues, plus $58 million in restitution, according to a company statement.

But more damages are possible. The jury will begin meeting next week to determine whether Skilled Healthcare should also pay punitive damages.

The company said in a statement it will appeal.

“We are deeply disappointed in the verdict,” Boyd Hendrickson, chief executive of Skilled Healthcare, said in the statement. “We strongly disagree with the outcome of this legal matter, and we intend to vigorously challenge it.”

News of the verdict caused the publicly held company’s stock price to plunge nearly 75%, to $1.52.

The company has about 14,000 employees. In the first quarter, it had about $189 million in revenue and a profit of $8.9 million, according to a filing with the Securities and Exchange Commission.

Needham said the deficiencies in staffing levels put patients in peril. “The company knows that this lack of staffing causes a higher risk of problems for patients,” he said. “Call lights don’t get answered, persons don’t get proper hygiene, persons don’t get their medications on time or the care they need.”

The suit only applies to assisted-living facilities operated by the company in California. Skilled Healthcare owns others in Arizona, Iowa, Kansas, Missouri, Nevada, New Mexico and Texas.

Follow the below link to review the Special Verdict Form

http://www.janssenlaw.com/pdf/Lavender-v-Skilled-Healthcare-verdict.pdf

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