Preview
.
'1'
.'itta: HOOPER HOOPER. LUNDY & BOOKMAN, P.c' MARK E. REAGAN
H
..
LUNDY 44 MONTGOMERY STREET, SUITE 3500 mreagan@lhooperlundy.com
(415) 875'8501
BOOKMAN SAN FRANCISCO. CALIFORNIA 94104
TELEPHONE: (415) 875-8500' Fi'Ie No' 12202901
November 17, 2023
Honorable Patricia Guerrero, Chief Justice
and the Associate Justices
California Supreme Court
350 McAllister Street
San Francisco, CA 94102
Re: Amicus Letter in Support of Petition for Review
California Rules of Court 500(g)
Patsy Newton, et a1. v. Enloe Medical Center
Case No. 8282025
To the Chief Justice and Associate Justices of the California Supreme Court:
CAI-[F is a nonprofit professional association founded more than 50 years ago to serve as
a statewide organization for long term care providers. It is the largest trade association in
California, representing approximately 1,337 licensed skilled nursing and intermediate care
facilities serving individuals with intellectual and developmental disabilities throughout
California.
Of the 1,224 licensed freestanding skilled nursing facilities ("SNFs") in the State, CAI-[F
currently represents 903 of these facilities. CAI-1F 's member facilities annually serve more than
200,000 vulnerable residents and employ more than 80,000 individuals working in those
facilities.
'CAHF supports Review ("PPR") in this case as each of the presented
the Petiti011 for
issues requires the resolution of some of the most significant issues in cases alleging violations
of the Elder Abuse and Dependent Adult Civil Protection Act ("EADACPA"), as set forth 1n
Welfare & Institutions Code § 15657. The present case is particularly unique as it presents all of
these consequential issues in a single action .
I. Statement of Interest
Based upon the longstanding representation of its members, CAI-IF has participated as
an amicus curiae in the most important decisions that this Court has issued relating to the civil
liability of SNFS, including Delanev v Baker (1999) 20 Cal. 4th 23, Covenant Care Inc v
Court (2004) 104 Cal. 4th 1049 and Jarman v. HCR ManorCare Inc (2020) 10 Cal
Széperior
5' 375.
BOSTON] DENVER l
LOS ANGELES |
SAN DIEGO l
SAN FRANCISCO |
WASHINGTON DC.
7436601 I WWW. HOOPERLUNDY COM
Honorable Patricia Guerrero, Chief Justice
November 17, 2023
Page 2
has likewise participated as an amicus curiae in many other civil liability cases
CAHF
involving long- -term care facilities before various Courts of Appeal, including Alvarado v Selma
Convalescent Hospital (2007) 153 Cal. App. 4th l292; Hogan v. Country Villa Health Services
(2009) 148 Cal. App. 4th 259; Ruiz v Podolslgz (2010) 50 Cal. 4th 383; Nevarrez v San Marino
Skilled Nursing and Wellness Center (2013) 221, Cal. App. 4th 102; and Lemaire v. Covenant
'
Care Cal, LLC (2015) 234 Cal. App. 4'" 860.
Beyond these activities, CAHF was directly involved in the legislative proceedings
leading up to the passage of the EADACPA statute, including drafting portions of the language
interpreted by this Court in both Delaney and Covenant Care, Inc. These decisions literally
altered the world of civil liability for long-term care providers and other health facilities (such as
'Enloe Medical Center) serving elders and dependent adults. However, nearly twenty-five years
after this Court issued its decision in Delaney, many of the issues at the heart of that case remain
unclear and require clarity.
The transformation caused by EADACPA has profoundly impacted the long-term care
insurance market. California SNFs suffer from a higher frequency and severity of claims
compared to other states. (See 2022 General and Professional Liability Benchmark Report: For
Senior Living and Long-Term Care "Providers (March 2023) Oliver Wyman & Marsh at p. 33
.) California had an average claim of more than
$306,000, almost $100,000 more than the nationwide average in 2022. (Id. at pp. 8, 32.) This is
coming at a time when long-term care facilities are facing challenges in obtaining
insurance. (See Amy O'Connor, C0 VID-19 Hits Already-TrOubled Nursing Home Insurance
Market; Brokers Try to Help, Insurance Journal (May 10,
2020) .) As the vast
majority of resident stays are covered by the Medicare and Medi-Cal programs, the uncertainty
over the issues raised in the PFR only serve to exacerbate this problem by removing necessary
resources for resident care.
The growing elderly population makes the management of risk for civil liability claims
against long-term care facilities even more important. By 2030, adults 60 and over will "make
up more than 30% of Califomia's population." (See Governor's Master Plan for Aging (Jan.
2021 ), available at https://mpa.aging.ca.gov/.) As the elderly population rapidly increases, so too
will disputes between long-term care facilities and residents. The sustainability of California
long- term care system will depend, at least 1n part, on the ability of these providers to have
access to affordable liability 1nsurance coverage.
In light of this ongoing crisis of coverage, CAHF'S involvement in the adoption of
EADACPA and the pivotal cases interpreting the statute and other civil liability provisions,
CAHF and its members have a substantial interest in the outcome of the present case.
HOOPER
7436601. l
'
HLB LU NDY
BOOKMAN
Honorable Patricia Guerrero, Chief Justice
November 17, 2023
Page 3
II. Reasons Whv Review Should Be Granted.
The Delaney and Covenant Care, Inc. decisions were fundamentally concerned with
distinguishing claims that would be actionable under EADACPA for the alleged reckless failure
to provide for the "basic needs" of an elder or dependent adult from claims relating to the
substandard provision of professional services. This distinction was critical in Delaney as
Welfare & Institutions Code § 15657.2 removed from EADACPA coverage claims "based on the
health care provider's alleged professional negligence". It was likewise consequential in
Covenant Care, Inc. as to the need to utilize the provisions of Code of Civil Procedure § 425.13
to seek punitive damages. If not covered by EADACPA, the claims in those cases would have
been subject to the provisions of the Medical Injury Compensation Reform Act of 1975
("MICRA") and related statutory provisions.
~
In both Delaney and Covenant Care, Inc., this Court found that the claims at issue were
covered by EADACPA and operated outside of the protection of MICRA, except as incorporated
in Section § 15657(b). However, these decisions represented "new law" involving tVvo factual
scenarios. What followed thereafter was a nearly instantaneous explosion of EADACPA cases
seeking to take advantage of the enhanced remedies. However, it likewise became clear that the
provision of health care services in residential environments were not always easy to distinguish
within this new framework.
Not surprisingly, Courts have since struggled about how to distinguish between the
failure to provide for "a basic need" versus failing to provide for a need that requires a
"professional service" that is not delivered in a manner that meets recognized professional
standards. The PFR presents "chapter and verse" of the marked inconsistencies (or outright
conflicts) among the various Districts as well as the insufficiency of the CACI jury instruction on
this essential principle. As outlined in the PFR, some appellate courts have even strayed beyond
the Delaney and Covenant Care, Inc framework and created new constructs. The bottom line is
that there is a compelling need for better clarity on this core issue. Issues l and 2 should be
reviewed by this Court.
Further, as more cases were brought against SNFs and other health facilities based upon
EADACPA, the issues of regulatory compliance with various staffing requirements covering
those facilities became part of the EADACPA conversation. In some cases, alleged failure to
meet staffing requirements were characterized by plaintiffs as constituting reckless neglect for
the purposes of EADACPA. In other cases, plaintiffs alleged that the facilities were not in
compliance with such requirements but the evidence (as in the present case) demonstrated that
the relevant regulatory requirements were, in fact, met. Given that an element of many, if not
most, current EADACPA actions brought against SNFS and other health facilities inVolve
allegations of insufficient staffing, this Court could assist lower courts by clarifying how
compliance with these requirements interact with EADACPA. Issue 3 should be reviewed by the
Court.
HOOPER
7436601.1 HLB LUNDY
BOOKMAN
,\
Honorable Patricia Guerrero, Chief Justice
November 17, 2023
Page 4
Finally, despite the fact that the EADACPA statute was designed to provide access to
enhancedremedies in cases of reckless neglect (in order to incentivize greater legal
representation), any number of plaintiffs have tried to remake EADACPA into a multi-purpose
civil liability statute and misuse it as a vehicle for seeking unlimited non- -economic damages
outside of the MICRA limitations, as set forth 1n Welfare & Institutions Code § 15657(b) and
otherwise. As outlined 1n the PFR, the goal of these attempts is not only at odds with
EADACPA itself but is further belied by the recent amendments to the MlCRA statute. lssue 4
should be reviewed by this Court.
III. Conclusion.
The evolution of EADACPA claims requires the involvement of this Court at this pivotal
moment in time. The present case represents an opportunity to provide clarity to the lower
courts that they desperately need on four key issues. Resolving these issues would also greatly
assist in stabilizing the California insurance market. If left unaddressed, liability insurance will
inevitably become less affordable and accessible to long-term care providers and thereby operate
only to disadvantage elders and dependent adults, the very individuals that EADACPA was
designed to protect. This Court should grant review.
Very truly yours,
Mark E. Reagan
MER/dlm
HOOPER
74366011 HLB
I
LUNDY
BOOKMAN
PROOF'OF SERVICE
Newton, et a]. v. Enloe Medical Center
$282025
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, I was over of age and not a party to
18 years
this action. I am employed in the County of San Francisco, State of
California. My business address is 44 Montgomery Street, Suite 3500, San
Francisco, CA 94104.
On November 17, 2023, I served true copies of the following
document(s) described as AMICUS LETTER IN SUPPORT 0F
PETITION FOR REVIEW on the interested parties in this action as
follows:
SEE ATTACHED SERVICE LIST
BY MAIL: I enclosed the document(s) in
sealed envelope or
a.
package addressed to the persons at the addresses listed in the Service List
and placed the envelope for collection and mailing, following our ordinary
business practices. I am readily familiar with the practice of Hooper,
Lundy & Bookman, P.C. for collecting and processing correspondence for
mailing. On the same day that correspondence is placed for collection and
mailing, it is deposited in the ordinary course of business with the United
States Postal Service, in a sealed envelope with postage fiJlly prepaid. I am
a resident or employed in the county where the mailing occurred. The
envelope was placed in the mail at San Francisco, California.
BY ELECTRONIC SERVICE: I electronically filed the
document(s) with the Clerk of the Court by using the TrueFiling system
Participants in the case who are registered users will be served by the
TrueFiling system. Participants in the case who are not registered users
will be served by mail or by other means permitted by the court rules.
I declare under penalty of perjury under the laws of the State of
California that the foregoing 1s true and correct.
Executed on November l7, 2023, at San Francisco, California.
Afiav /
Diana Morgan
W
Q
7436767. l
,'
S_er_1i£e_Li_St.
Sean R. Laird Attorneys for Plaintiffs and
The Law Finn of Sean R. Laird Respondents PATSY NEWTON and
1007 7'" Street, 4'" Floor HAROLD NEWTON
Sacramento, CA 95814
(VIA TRUE FILmG)
Scott P. Dixler Attorneys for Defendant and Appellant
Horvitz & Levy, LLP ENLOE MEDICAL CENTER
Business Arts Plaza
3601 West Olive Avenue, 8'" Floor
Burbank, CA 91505-4681
(VIA TRUE FILING)
Robert H. Zimmerman Attorneys for Defendant and Appellant
Schuering Zimmerman & Doyle, LLP ENLOE MEDICAL CENTER
400 University Avenue
Sacramento, CA 95 825-6502
(VIA TRUE FILING)
Clerk of the Court
California Court of Appeal
Third Appellate District
914 Capitol Mall, 4m Floor
Sacramento, CA 95 814
(VIA TRUE FILING)
Clerk of the Court
Hon. Tamara L. Mosbarger
Butte Superior Court
North Butte County Courthouse
Civil Division, Department 1
1775 Concord Avenue
Chico, CA 95928
(Via Mail)
7436767.]
HOOPER, LUNDY & BOOKMAN,'P.C.
1875 CENTURY PARK-EAST. SU_lTE 1600 LOS ANGELES CA 900' a
LOS ANGELES, CALIFORNIA 90067 -'.
17 NOV 2.023 PM 12L
,
FREEBU
NOV 2 0 of the Court
Hon. Tamara L. Mosbarger
Butte Superior Court
North Butte County Courthouse
Civil Division, Department 1
'
1775 Concord Avenue
Chico, CA 95928
*ii'ir'rrii'i'*i'irirrizrr'i"firi'fl'r"i'ririiiiiitiriiiiiurrir'
Preview
. '1' .'itta: HOOPER HOOPER. LUNDY & BOOKMAN, P.c' MARK E. REAGAN H .. LUNDY 44 MONTGOMERY STREET, SUITE 3500 mreagan@lhooperlundy.com (415) 875'8501 BOOKMAN SAN FRANCISCO. CALIFORNIA 94104 TELEPHONE: (415) 875-8500' Fi'Ie No' 12202901 November 17, 2023 Honorable Patricia Guerrero, Chief Justice and the Associate Justices California Supreme Court 350 McAllister Street San Francisco, CA 94102 Re: Amicus Letter in Support of Petition for Review California Rules of Court 500(g) Patsy Newton, et a1. v. Enloe Medical Center Case No. 8282025 To the Chief Justice and Associate Justices of the California Supreme Court: CAI-[F is a nonprofit professional association founded more than 50 years ago to serve as a statewide organization for long term care providers. It is the largest trade association in California, representing approximately 1,337 licensed skilled nursing and intermediate care facilities serving individuals with intellectual and developmental disabilities throughout California. Of the 1,224 licensed freestanding skilled nursing facilities ("SNFs") in the State, CAI-[F currently represents 903 of these facilities. CAI-1F 's member facilities annually serve more than 200,000 vulnerable residents and employ more than 80,000 individuals working in those facilities. 'CAHF supports Review ("PPR") in this case as each of the presented the Petiti011 for issues requires the resolution of some of the most significant issues in cases alleging violations of the Elder Abuse and Dependent Adult Civil Protection Act ("EADACPA"), as set forth 1n Welfare & Institutions Code § 15657. The present case is particularly unique as it presents all of these consequential issues in a single action . I. Statement of Interest Based upon the longstanding representation of its members, CAI-IF has participated as an amicus curiae in the most important decisions that this Court has issued relating to the civil liability of SNFS, including Delanev v Baker (1999) 20 Cal. 4th 23, Covenant Care Inc v Court (2004) 104 Cal. 4th 1049 and Jarman v. HCR ManorCare Inc (2020) 10 Cal Széperior 5' 375. BOSTON] DENVER l LOS ANGELES | SAN DIEGO l SAN FRANCISCO | WASHINGTON DC. 7436601 I WWW. HOOPERLUNDY COM Honorable Patricia Guerrero, Chief Justice November 17, 2023 Page 2 has likewise participated as an amicus curiae in many other civil liability cases CAHF involving long- -term care facilities before various Courts of Appeal, including Alvarado v Selma Convalescent Hospital (2007) 153 Cal. App. 4th l292; Hogan v. Country Villa Health Services (2009) 148 Cal. App. 4th 259; Ruiz v Podolslgz (2010) 50 Cal. 4th 383; Nevarrez v San Marino Skilled Nursing and Wellness Center (2013) 221, Cal. App. 4th 102; and Lemaire v. Covenant ' Care Cal, LLC (2015) 234 Cal. App. 4'" 860. Beyond these activities, CAHF was directly involved in the legislative proceedings leading up to the passage of the EADACPA statute, including drafting portions of the language interpreted by this Court in both Delaney and Covenant Care, Inc. These decisions literally altered the world of civil liability for long-term care providers and other health facilities (such as 'Enloe Medical Center) serving elders and dependent adults. However, nearly twenty-five years after this Court issued its decision in Delaney, many of the issues at the heart of that case remain unclear and require clarity. The transformation caused by EADACPA has profoundly impacted the long-term care insurance market. California SNFs suffer from a higher frequency and severity of claims compared to other states. (See 2022 General and Professional Liability Benchmark Report: For Senior Living and Long-Term Care "Providers (March 2023) Oliver Wyman & Marsh at p. 33 .) California had an average claim of more than $306,000, almost $100,000 more than the nationwide average in 2022. (Id. at pp. 8, 32.) This is coming at a time when long-term care facilities are facing challenges in obtaining insurance. (See Amy O'Connor, C0 VID-19 Hits Already-TrOubled Nursing Home Insurance Market; Brokers Try to Help, Insurance Journal (May 10, 2020) .) As the vast majority of resident stays are covered by the Medicare and Medi-Cal programs, the uncertainty over the issues raised in the PFR only serve to exacerbate this problem by removing necessary resources for resident care. The growing elderly population makes the management of risk for civil liability claims against long-term care facilities even more important. By 2030, adults 60 and over will "make up more than 30% of Califomia's population." (See Governor's Master Plan for Aging (Jan. 2021 ), available at https://mpa.aging.ca.gov/.) As the elderly population rapidly increases, so too will disputes between long-term care facilities and residents. The sustainability of California long- term care system will depend, at least 1n part, on the ability of these providers to have access to affordable liability 1nsurance coverage. In light of this ongoing crisis of coverage, CAHF'S involvement in the adoption of EADACPA and the pivotal cases interpreting the statute and other civil liability provisions, CAHF and its members have a substantial interest in the outcome of the present case. HOOPER 7436601. l ' HLB LU NDY BOOKMAN Honorable Patricia Guerrero, Chief Justice November 17, 2023 Page 3 II. Reasons Whv Review Should Be Granted. The Delaney and Covenant Care, Inc. decisions were fundamentally concerned with distinguishing claims that would be actionable under EADACPA for the alleged reckless failure to provide for the "basic needs" of an elder or dependent adult from claims relating to the substandard provision of professional services. This distinction was critical in Delaney as Welfare & Institutions Code § 15657.2 removed from EADACPA coverage claims "based on the health care provider's alleged professional negligence". It was likewise consequential in Covenant Care, Inc. as to the need to utilize the provisions of Code of Civil Procedure § 425.13 to seek punitive damages. If not covered by EADACPA, the claims in those cases would have been subject to the provisions of the Medical Injury Compensation Reform Act of 1975 ("MICRA") and related statutory provisions. ~ In both Delaney and Covenant Care, Inc., this Court found that the claims at issue were covered by EADACPA and operated outside of the protection of MICRA, except as incorporated in Section § 15657(b). However, these decisions represented "new law" involving tVvo factual scenarios. What followed thereafter was a nearly instantaneous explosion of EADACPA cases seeking to take advantage of the enhanced remedies. However, it likewise became clear that the provision of health care services in residential environments were not always easy to distinguish within this new framework. Not surprisingly, Courts have since struggled about how to distinguish between the failure to provide for "a basic need" versus failing to provide for a need that requires a "professional service" that is not delivered in a manner that meets recognized professional standards. The PFR presents "chapter and verse" of the marked inconsistencies (or outright conflicts) among the various Districts as well as the insufficiency of the CACI jury instruction on this essential principle. As outlined in the PFR, some appellate courts have even strayed beyond the Delaney and Covenant Care, Inc framework and created new constructs. The bottom line is that there is a compelling need for better clarity on this core issue. Issues l and 2 should be reviewed by this Court. Further, as more cases were brought against SNFs and other health facilities based upon EADACPA, the issues of regulatory compliance with various staffing requirements covering those facilities became part of the EADACPA conversation. In some cases, alleged failure to meet staffing requirements were characterized by plaintiffs as constituting reckless neglect for the purposes of EADACPA. In other cases, plaintiffs alleged that the facilities were not in compliance with such requirements but the evidence (as in the present case) demonstrated that the relevant regulatory requirements were, in fact, met. Given that an element of many, if not most, current EADACPA actions brought against SNFS and other health facilities inVolve allegations of insufficient staffing, this Court could assist lower courts by clarifying how compliance with these requirements interact with EADACPA. Issue 3 should be reviewed by the Court. HOOPER 7436601.1 HLB LUNDY BOOKMAN ,\ Honorable Patricia Guerrero, Chief Justice November 17, 2023 Page 4 Finally, despite the fact that the EADACPA statute was designed to provide access to enhancedremedies in cases of reckless neglect (in order to incentivize greater legal representation), any number of plaintiffs have tried to remake EADACPA into a multi-purpose civil liability statute and misuse it as a vehicle for seeking unlimited non- -economic damages outside of the MICRA limitations, as set forth 1n Welfare & Institutions Code § 15657(b) and otherwise. As outlined 1n the PFR, the goal of these attempts is not only at odds with EADACPA itself but is further belied by the recent amendments to the MlCRA statute. lssue 4 should be reviewed by this Court. III. Conclusion. The evolution of EADACPA claims requires the involvement of this Court at this pivotal moment in time. The present case represents an opportunity to provide clarity to the lower courts that they desperately need on four key issues. Resolving these issues would also greatly assist in stabilizing the California insurance market. If left unaddressed, liability insurance will inevitably become less affordable and accessible to long-term care providers and thereby operate only to disadvantage elders and dependent adults, the very individuals that EADACPA was designed to protect. This Court should grant review. Very truly yours, Mark E. Reagan MER/dlm HOOPER 74366011 HLB I LUNDY BOOKMAN PROOF'OF SERVICE Newton, et a]. v. Enloe Medical Center $282025 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, I was over of age and not a party to 18 years this action. I am employed in the County of San Francisco, State of California. My business address is 44 Montgomery Street, Suite 3500, San Francisco, CA 94104. On November 17, 2023, I served true copies of the following document(s) described as AMICUS LETTER IN SUPPORT 0F PETITION FOR REVIEW on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in sealed envelope or a. package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Hooper, Lundy & Bookman, P.C. for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fiJlly prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at San Francisco, California. BY ELECTRONIC SERVICE: I electronically filed the document(s) with the Clerk of the Court by using the TrueFiling system Participants in the case who are registered users will be served by the TrueFiling system. Participants in the case who are not registered users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the State of California that the foregoing 1s true and correct. Executed on November l7, 2023, at San Francisco, California. Afiav / Diana Morgan W Q 7436767. l ,' S_er_1i£e_Li_St. Sean R. Laird Attorneys for Plaintiffs and The Law Finn of Sean R. Laird Respondents PATSY NEWTON and 1007 7'" Street, 4'" Floor HAROLD NEWTON Sacramento, CA 95814 (VIA TRUE FILmG) Scott P. Dixler Attorneys for Defendant and Appellant Horvitz & Levy, LLP ENLOE MEDICAL CENTER Business Arts Plaza 3601 West Olive Avenue, 8'" Floor Burbank, CA 91505-4681 (VIA TRUE FILING) Robert H. Zimmerman Attorneys for Defendant and Appellant Schuering Zimmerman & Doyle, LLP ENLOE MEDICAL CENTER 400 University Avenue Sacramento, CA 95 825-6502 (VIA TRUE FILING) Clerk of the Court California Court of Appeal Third Appellate District 914 Capitol Mall, 4m Floor Sacramento, CA 95 814 (VIA TRUE FILING) Clerk of the Court Hon. Tamara L. Mosbarger Butte Superior Court North Butte County Courthouse Civil Division, Department 1 1775 Concord Avenue Chico, CA 95928 (Via Mail) 7436767.] HOOPER, LUNDY & BOOKMAN,'P.C. 1875 CENTURY PARK-EAST. SU_lTE 1600 LOS ANGELES CA 900' a LOS ANGELES, CALIFORNIA 90067 -'. 17 NOV 2.023 PM 12L , FREEBU NOV 2 0 of the Court Hon. Tamara L. Mosbarger Butte Superior Court North Butte County Courthouse Civil Division, Department 1 ' 1775 Concord Avenue Chico, CA 95928 *ii'ir'rrii'i'*i'irirrizrr'i"firi'fl'r"i'ririiiiiitiriiiiiurrir'