Preview
Superior Court of California F
Sean R. Laird (SBN 214916)
County of Butte
The Law Firm of Sean R. Laird |
805 16th Street 10/5/2020 L
Sacramento, CA 95814
(916) 441-1636 D
(916) 760-9002 By Deputy
Electronically FILED
seanlairdlaw@gmail.com
Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
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PATSY NEWTON, individually; HAROLD Case No. 20CV01091
ll NEWTON; individually; SUZANNE BOLEN,
individually. DECLARATION OF SEAN R. LAIRD
12 IN SUPPORT OF PLAINTIFF PATSY
Plaintiffs, NEWTON’S MOTION TO COMPEL
13 DOCUMENTS FROM DEFENDANT
14 VS. ENLOE MEDICAL CENTER.
15 ENLOE MEDICAL CENTER; and DOES | -
16 50, inclusive, DATE Octomber 28, 2020
TIME: 9:00 a.m.
17 Defendants, DEPT: 1
18 Hon. Tamara L. Mosbarger
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Complaint Filed: 5/29/2020
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Trial Date: 12/14/2020
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
I, SEAN R. LAIRD, declare as follows:
1 Tam an attorney at law, duly licensed to practice in the courts of the state of
California. I am the attorney of record for plaintiff Patsy Newton. Except where I have stated
otherwise, I have personal knowledge of the facts stated herein and if called as a witness I could
testify competently as to the matters on which I declare.
2. This is a tragic case of elder neglect by defendant which caused the horribly
debilitating pressure ulcer that exposed Mrs. Newton’s flesh and bone and caused her to be
bedridden and severely debilitated. Plaintiff has alleged elder abuse and neglect. Due to Mrs.
Newton’s advanced age and constellation of precarious health conditions this matter has been set
10 for preferential trial on December 14, 2020. Plaintiff served a notice of deposition on Defendant
ll Enloe Medical Center to produce a Persons Most Qualified regarding certain documents and the
12 production of those documents. (See Exhibit 1.) Defendant served objections and thereafter
13 produced a single witness and refused to produce documents responsive to many of plaintiff’s
14 requests. (See Exhibit 2.) Plaintiff's counsel made efforts right after to the deposition to begin to
15 meet and confer, on the record. (See Exhibit 3.) In addition, plaintiff’s counsel made extensive
16 efforts thereafter, in writing, to meet and confer on the production of documents. (See Exhibit 4.)
17 Despite this effort, defendants maintained their position as to the disputed documents and,
18 moreover, despite indicating they would provide documents responsive to some requests, have
19 failed to do so to date, requiring plaintiff
to seek an order for production. (See Exhibit 5.)
20 Plaintiff’s counsel will continue to meet and confer with defendants in order to attempt to narrow
21 the scope of disagreement and will notify the Court if defendants produce responsive documents.
22 (See Exhibit 6.) Attached hereto as Exhibit 1 is a true and accurate copy of plaintiff’s Notice of
23 Deposition of PMQ from Enloe Medical Center regarding documents and request for production of
24 documents. Attached hereto as Exhibit 2 is a true and accurate copy of Defendants Amended
25 Objections to plaintiff's PMQ deposition notice. Attached hereto as Exhibit 3 is a true and
26 accurate copy of counsel’s initial efforts to meet and confer on the documents at issue herein.
27 Attached hereto as Exhibit 4 is a true and accurate copy of plaintiff’s September 7, 2020 meeting
28 and conferring on the disputes. Attached hereto as Exhibit 5 is a true and accurate copy of
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
defendant’s September 15, 2020 corresponding replying to plaintiff’s meet and confer efforts.
Attached hereto as Exhibit 6 is a true and accurate copy of plaintiff’s correspondence to
defendants dated October 5, 2020 notifying counsel that we are willing to continue to meet and
confer and will notify the court of further resolution of issues.
3 Documentary evidence forms the critical basis of any elder abuse case. Before
other discovery can proceed effectively, including the depositions of the numerous caregivers,
Plaintiff requires the underlying documentation to address the various allegations made in the
complaint in order to formulate cross examination of percipient witnesses. Jd. Plaintiffs emphasize
that this is an elder abuse case in which plaintiffs bear a heightened burden of proof in establishing
10 not only that defendants neglected Mrs. Newton, but also that the neglect was reckless, malicious,
ll oppressive or fraudulent and that the reckless neglect was engaged in, authorized or ratified by a
12 “managing agent.” (See CACI 3103.) Given this burden, plaintiffs naturally are entitled to
13 documents showing that nursing providers and key management personnel were aware of the
14 widespread problems occurring at their facility and did little to nothing to address them. Jd.
15 Plaintiffs have alleged that key management personnel directly participated in the neglect and
16 ratified the neglect of Mrs. Newton. (See Complaint at §] 25-32.) The documents requested are
17 key components to this showing. /d. Plaintiffs are entitled to these documents and testimony in
18 order to properly conduct depositions that have already begun and must be completed on a
19 preferential timeline. Jd.
20 4 Good cause supports an order compelling defendants to produce the documents
21 requested in Plaintiffs PMQ deposition notice to Enloe Medical Center. As of the filing of this
22 motion defendants have failed to produce the following documents despite agreeing to do so, in
23 writing:
24 Documents Which Have Been Agreed To, Yet Not Produced:
Request Nos. 4-6 & 19. These requests seek Policy & Procedure Manuals that govern
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various employees. Request No. 4 seeks all policy and procedure manuals regarding a
26 number of patient care issues relevant to this case that were in place during plaintiff’s
residency. Request No. 5 seeks a copy of any nursing policy and procedure manuals in
27 effect during plaintiff’s residency. Similarly, Request No. 19 seeks a copy of all
28 nursing management care policies, procedures and manuals that were in effect during
the residency of plaintiff. Good cause for the documents exist, as the facility’s policy
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
and procedure manuals are extremely probative to the issues in this case. These
manuals reflect the facility’s own policies that personnel are not only expected to know
about certain patient care issues, but are also required to follow in providing care to
residents. It is plaintiffs’ position that the care provided to plaintiff grossly failed to
meet the facility’s own policies and procedures on numerous occasions. Failure to
follow policies and procedures and failure to insure that the nursing staff is familiar
with the policies and procedures constitutes recklessness, in that the individuals
involved knew that there was a high probability that this conduct would cause harm and
knowingly disregarded this risk.
Requests No. 20-23 ;25; 29; 36; 56 these individual requests seek documents that
demonstrate the acuity level (amount of care needs) of the various residents that hospital
staff was tasked with providing care to in the same unit as Mrs. Newton, the census
(number of patients) and documents which showed how staffed maintained sufficient staff
to care for all of the needs of all of the patients at all times, including breaks. At the PMQ
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deposition, the deponent indicated there was a “Rationale Document” that was discussed
ll post-deposition that defense counsel indicated he would locate and produce in writing. (See
Exhibit 5.) These have not been produced as of yet. Plaintiff also requested, “All audits,
12 studies, or reports concerning, referring or relating to the quantitative or qualitative
13 adequacy of the staff of THE HOSPITAL and which were conducted or otherwise
prepared in the calendar year (2019) PLAINTIFF resided at THE HOSPITAL.”
14 Defendant objected on various privilege grounds, but failed to produce a privilege log so
plaintiff could address the veracity of those privileges. As discussed more below, the
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documents and data in underlying reports, made by percipient witnesses regarding staffing
16 are not protected by a claim of privilege or quality assurance. (See the arguments related to
Requests 27, 28 and 30, below.) Moreover, any privacy concern must be balanced and can
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be obviated with a protective order, which plaintiffs are willing to enter.
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Request No. 53 As to defendants indicated they would provide Assignment Despite
19 Objection forms (“ADO’s”) for the requested time period, “September 2017 and the present
20 date.” The supplemental production was limited to 2019. A glance at the one document
provided shows the exact type of evidence that demonstrate unequivocally that nurses
21 providing care to Mrs. Newton told their supervisors that: “The staffing/skill mix was
insufficient to the individual patient care needs/requirements of patients due to failure to
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provide additional staff based on acuity.” (See Exhibit 7.) Additionally nurses in this
23 document were concerned that the staffing mix would not provide breaks by a direct care
RN to prevent fatigue, accidents and errors. /d. Additionally these nurses indicated that
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direct patient care duties did not allow time for charge nurse duties and would cause non-
25 compliance with the required 1:5 ratio. Jd. These statements directly support the statements
and allegations made by Mrs. Newton in her complaint. Moreover, these documents show
26 the paper trail to demonstrate that supervisors were notified and other departments in
27 charge of “staffing” were notified of these deficiencies. Jd. We asked for all ADO from
these units for a two year (relevant) period to show the notice that supervisors had of
28 complaints of understaffing and complaints that residents care needs could not be met.
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
Showing this notice, and the facility’s lack of responsiveness will strongly support the
recklessness, malice, oppression and fraud allegations plaintiff has made, because of the
awareness of these concerns and the lack of the corporate decision makers to rectify these
problems.
Attached hereto as Exhibit 7 is a true and accurate copy of the ADO produced at the PMQ
deposition - Exhibit 16 to the deposition.
5 Good cause supports an order compelling defendants to produce the documents
requested below in Plaintiffs PMQ deposition notice to Enloe Medical Center. As of the filing of
this motion defendants have failed to produce the following documents, failed to provide
privilege logs consistent with their objections, and have maintained their objections, necessitating
10 this motion:
ll Documents Which Defendants Have Refused to Produce:
12 Requests No. 15 - 18; 49. - Requests 15-18; 49 requested nursing department budgets for
the units in which plaintiff stayed, between the years 2017-2020. Defendants served
13 objections on the following grounds: Right to Privacy, relevance. No other grounds. The
14 relevancy of the documents are unquestionable. To begin, the request is not seeking any
financial information because of the nature of what the document is. A budget is simply a
15 forward-looking plan regarding expenses and spending. It tells you nothing about the
“financial condition” ie. - relative wealth, economic strength, profits, losses and so on of
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Enloe Medical Center. Even so, under controlling California case law, plaintiffs may use
17 evidence ofa defendant’ profits or financial condition in the liability phase of a trial
when such evidence is relevant to liability. See, e.g., Rawnsley v. Superior Court, 183 Cal.
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App. 3d 86 (1986); Notrica v. State Compensation Ins. Fund, 70 Cal. App. 4 911, 939
19 (1999). Further, the documents are entirely relevant given the allegations of plaintiffs”
complaint. Plaintiff’s allegation that defendant was insufficiently staffed is relevant to
20 liability as plaintiffs believe insufficient staffing of the facility contributed to the reckless
21 neglect of plaintiff and that managing agents purposefully underfunded the units, causing
the failures in patent care that let to Mrs. Newton’s neglect. The facility’s budget is
22 relevant because plaintiffs’ expert will use and rely upon the budget to assess whether the
facility had sufficient staffing. Specifically, the facility’s budget will show how much
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defendants budgeted to the nursing department and to each level of nursing personnel
24 licensed, unlicensed, and supervisory charges in particular). If defendants inadequately
budgeted from the outset, such evidence will powerfully support plaintiffs’ contention that
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the reckless neglect plaintiff suffered was authorized, participated in, or ratified by a
26 managing agent. To pursue this theory of liability, plaintiffs are entitled to gather records
regarding defendant’s budgeting practices for the time frame requested to show a pattern
27 and practice of insufficient staffing on the part of the facility. Accordingly, these requests
28 are not “irrelevant.”
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
As to defendant’s privacy objection, this objection lacks merit. First, as a business
entity, Enloe itself does not have a per se right to privacy. See, e.g., Roberts v. Gulf Oil
Corp., 147 Cal. App. 3d 770, 796-97 (1983). The right to privacy must be balanced
against the plaintiff’s rights in this lawsuit to relevant information, especially when it can
be protected from widespread disclosure. Given that the request is narrowly tailored to the
units/departments where plaintiff resided, in a reasonable time frame, that will show a
pattern and practice of under-budgeting (and corresponding understaffing) and given that
plaintiffs have an heightened burden of proof to show recklessness by a managing agent
through clear and convincing evidence, this type of documentation is exactly the kind that
can empirically support plaintiff’s position and that trial courts have allowed to be
examined in the past. Any privacy concern can be obviated by plaintiff’s willingness to
enter into a protective order, which we are willing to do.
Requests No. 27, 28 and 30. - Requests 27, 28, and 30 request various incident and
investigative reports, both those specifically related to Mrs. Newton and others related to
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similarly situated patients whose care triggered the generation of an incident report that
ll would, in turn, place managing agents on notice of quality of care concerns at the hospital.
Hospitals are required, pursuant to California law, to generate incident reports in relation
12 to certain triggering events that are typically indicative of poor quality of care. For
13 instance, any time a patient develops a hospital acquired pressure ulcer (like the one Mrs.
Newton developed herein), the hospital is required to generate an incident report. The
14 PMQ deponent indicated that there was, in fact, such an incident report generated for Mrs.
Newton. Despite this, defendants refused to produce it. (See and Exhibit 8.)
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Records from the Department of Public Health show numerous other hospital
16 acquired pressure ulcers at Enloe Medical Center which would have triggered the
generation of an incident report. Similarly, we are entitled to other incident reports related
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to the units where plaintiff resided for a relevant time period to show notice of quality of
18 care concerns. It should be noted that during meet and confer efforts, plaintiff clarified the
request to: all the incident reports, redacted of patient information, generated from the
19 units where plaintiff resided from 2018 through the current date. The documents are
20 sought to show a pattern of repeated violations by the facility that should have put the
facility and the managing agents of these units on notice of shortcomings in patient care.
21 Given this purpose, plaintiffs are entitled to documents extending a few years before Mrs.
Newton’s admission. Consistent with what is mentioned above, plaintiffs are required to
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make a showing of recklessness based on clear and convincing evidence, thus discovery of
23 this nature is critical in elder abuse cases and the scope of discovery is much different than
the run-of-the-mill “malpractice” case. Plaintiffs intend to show that there were ongoing
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pressure ulcer problems in at this hospital, and other incidents that should have sounded
25 the alarms, that the supervising agents knew about them, and did nothing to prevent them,
leading to Mrs. Newton’s neglect. Moreover, the months after her discharge are relevant to
26 adoption, approval and ratification of the poor treatment Mrs. Newton received.
27 Defendants did not make any relevancy objections. Instead their objections
focused on attorney-client, work product, and 1157 privileges. Defendants assert that the
28 mere fact that these items are entered into their “MIDAS” system, such action converts
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
them to “records of organized committees” exempt from disclosure under Evidence Code
section 1157. This is absurd. Incident reports are not protected by peer review privileges
under these circumstances. In fact, the opposite is true. Incident reports are the reports
generated by those who observe the incident. These raw reports are not the reports “of the
committee.”
Privileges are statutory constructs, not policy determinations made by the courts on
ade novo basis. The underlying factual shortcomings make the privilege wholly
inapplicable under the scenario presented in this case. To be sure, Evidence Code section
1157 protects the “proceedings and records of organized committees” or “peer review
bodies as defined in section 805 of the Business and Professions Code” from discovery.
That is, when the committee holds their meetings to discuss quality assurance issues, their
conversations, the reports the committee generates, the recommendations they make, the
minutes of their meetings are all protected from disclosure. Plaintiff is not seeking any of
that information. To date, defendants cite no cases, statutes or regulations that support
their position that the reports generated by floor nurses, charge nurses and those providing
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care, that describe the incident at or near the time of the events are in any way protected.
ll To be certain, defendants have never offered any evidence to date by way of declaration,
or even in the meet and confer process, that a peer review board or organized committee
12 who generated any of the documents sought in this case.
13 Evidence Code 1157 provision protects the proceedings and records of hospital or
medical review committees having the responsibility of evaluation and improvement of
14 the quality of care rendered in a hospital. Privileges are generally disfavored in the law
and must be strictly construed. Fox v. Kramer (2000) 22 Cal. 4th 531, 547. Further, the
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burden of establishing entitlement to nondisclosure rests with the party resisting discovery.
16 Santa Rosa Memorial Hospital v. Superior Court (1985) 174 Cal. App. 3d 711, 727.
Failing to show that the records complied with the strict statutory constructs of Evidence
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Code §1157, takes them out of the privilege defendant now asserts in withholding the
18 documents.
It should be noted here according to the testimony that there is was a failure here,
19 pursuant to California Code of Civil Procedure Section 2025.230 to produce the Person
20 Most Qualified as requested in our deposition notice and there was a corresponding failure
to take any steps to see whether incident reports existed as requested. (See Exhibit 9.)
21 California Code of Civil Procedure Section 2025.230 requires that the PMQ deponent
22 must be prepared to testify “to the extent of any information known or reasonably
available.”
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Request No. 35 - Request 35 sought “All applications by THE HOSPITAL to the
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California Department of Health and Human Services, and the Health Care Finance
25 Administration regarding the operation, licensure and medical reimbursement of or to THE
HOSPITAL the two calendar years preceding PLAINTIFF’S residency.” Defendants
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objected only two grounds: relevance and over-breath and refused to produce records.
27 Good cause exists for their production: The facility’s application to relevant governing
agencies contains representations, covenants and promises that underlie the hospital’s
28 licensure. This includes agreements regarding staffing and maintaining quality care, both of
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
which are core issues in Mrs. Newton’s case. Moreover, these would be representations,
covenants and promises that managing agents are making regarding ensuring quality care.
Documents showing what promises were made to the State of California, contrasted with
facts in this case that show these promises made by managing agents were not being kept
are highly probative of recklessness, malice, fraud and oppression - all of which plaintiff is
required to show that a managing agent participated in by clear and convincing evidence.
This increased burden of proof should extend the net of discovery, not retract it as
defendants suggest. These documents are plainly relevant. Moreover, they are limited in
time to the “two calendar years preceding PLAINTIFF’s” admission. Two years is the
appropriate amount of time to show an ongoing pattern and practice of making promises,
not following through with them, failing to make promised changes, and continuing to have
patients suffer the same repeated injuries similar to Mrs. Newton’s - hospital acquired
pressure ulcers (HAPU’s). DPH records show repeated deficiencies for HAPUs, plaintiff
should be entitled to see what covenants, promises, and changes were promised in their
various applications to the various oversight agencies
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ll Request No. 37 - Request 37 asks for “any and all DOCUMENTS from any source...
concerning complaints by any person or entity about any of the following at THE
12 HOSPITAL: (and lists 21 categories of complaints relevant to this case, i.e. - pressure
13 ulcers, understaffing, failing to monitor, etc.) Good cause clearly exists for documents that
demonstrate a history of complaints, and the corresponding inference of notice of quality of
14 care issues that are central to those alleged herein. Defendant’s witness testified that these
complaints would all be contained in its MIDAS system. (See Exhibit 10.) The witness
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testified that the complainants, such as family members can call in and the complaint is
16 entered into the system, or in the case of employees, they can actually enter the complaint
in themselves. Defendant, however, failed to produce the log that is clearly responsive and
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relevant to the request. Jd. The very log that captures the various real-time complaints
18 throughout the hospital is directly responsive to Request 37. As discussed at length above,
privilege objections have no merit in refusing to produce responsive documents not
19 generated by a quality assurance committee. The statements made by witnesses or ascribed
20 by a hospital employee at or near the time the witness is making the complaint is not a
communication that is protected by any privilege in California.
21 Any privacy objections that defendants make are of course subject to a balancing
test, which, here, clearly and overwhelming favors the plaintiff’s interests. Moreover, the
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privacy interests involved can be balanced by a HIPAA complaint protective order, which
23 plaintiff told defendants they were willing to enter into prior to even bringing a motion to
compel. HIPAA allows for disclosure of third-party information if the appropriate
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protective orders are in place. (See 45 CFR § 164.512(e)). Thus, plaintiff seeks unreacted
25 complaints of any and all individuals responsive to Request 37 contained in the MIDAS
system, subject to a HIPAA compliant protective order. Plaintiffs have a compelling interest
26 in the information sought. The deposition notice and proposed use ofa protective order are
27 appropriately tailored to that interest, and Plaintiffs' interest overcomes any countervailing
privacy interest.
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
Requests No. 38-40; 58 these requests asked Defendants to provide documents identifying
the supervisory and discretionary decision-making employees including those who make
planning level decisions and those who sit on the governing board, including job
descriptions of the same. Good causes exists for the production of these documents: as
mentioned above, this is not a run-of-the-mill professional negligence case. Plaintiff
alleges and intends to show that the understaffing and lack of care that led to her neglect
was engaged in by managing agents. In addition plaintiff alleges and intends to show that
managing agents ratified the neglectful conduct. Merely asking for documents identifying
who these individuals are so, for instance, they can be deposed is clearly relevant and good
causes exists. Defendant objected vague and ambiguous, irrelevant, overbroad and
violative of business and corporate privacy rights. The objections are not well founded. The
names of these supervising agents are not subject to privacy objections (see the arguments
above). Moreover, Plaintiffs have relegated these requests to the calendar year that plaintiff
was a resident (2019), thus the request is not overbroad. Defendants seem to be consistently
making the “relevance” objection regarding supervisory and governing board members.
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Yet, I presume defendants will be making arguments at trial that we are required to show
ll that the neglect of Mrs. Newton was engaged in, ratified, adopted or approved by a
managing agent in order to get the enhanced remedies under the Elder Abuse Act. Given
12 that is defendant’s (assumed) position, their relevance objection is not well founded and
13 they should be required to produce responsive documents.
14 Requests No. 44-46 - the requests asked for minutes of meetings between shareholders,
governing bodies, or boards of directors. Good cause exists for the production of these
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documents. As described at length above, given the burden of proof of showing conduct of
16 the corporate actors, what issues of which they had notice and their failures to address these
issues, complaints and concerns related to patient care, plaintiffs are entitled to documents
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showing notice, knowledge of the failings that inevitably led to Mrs. Newton’s neglect. The
18 minutes will also show their direct participation in such by memorializing their notice of,
and positions on, budgeting, DPH surveys, lawsuits, deficiencies, complaints and the like.
19 Notice during a relevant time frame - here limited two two years - seems reasonable in light
20 of the steps that can be taken (or not taken) during that timeframe from a management
perspective. Failures by the governing body to address these issues will support plaintiffs’
21 contention that the reckless neglect plaintiff suffered was a result of failures on the part of
managing agents, which plaintiffs are required to show under the Elder Abuse Act.
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Because plaintiffs are attempting to show a pattern and practice in this regard, plaintiffs are
23 entitled to seek documents extending beyond the time of plaintiffs residency and relating to
patient care issues other than those involving plaintiff. For these reasons, and the other
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reasons stated above, these documents are relevant, and have been universally discoverable
25 in every elder abuse case I’ve done. They touch upon no privilege, there is no attorney
client privilege or work product privilege with regard to corporate meeting minutes, in fact,
26 often when attorneys brief corporate boards, the minutes will so reflect and will not contain
27 privileged information. Moreover, the corporate meeting minutes are not quality assurance
meetings protected by the limited privileges of 1157 or the “Patient Safety Work Privilege”
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
defendants object to, and do not even come close to meeting the elemental requirements
that would invoke such a privilege, described at length above.
Requests No. 50 - 51 requested the insurance policy as applied to this matter and any
reservation of rights letter. It should be noted that defendants did not serve objections to
the production of this document, instead they indicated they would provide it:
“Responding Party will comply with this request.” Moreover, defendants did not provide a
complete copy of the insurance policy, but instead provided a two page certificate of
liability insurance. This is not the policy. Please provide the complete policy. You did not
object to this production either, you indicated you would comply with the request. Good
causes exists for the discovery of these documents, as both California statutory and case
law expressly provide for it. In California, pretrial discovery in a civil action is governed
by the Civil Discovery Act, Code Civ. Proc., § 2016.010 et seq. As a general matter,
information is discoverable if it is relevant to the subject matter of an action and,
additionally, is either admissible in evidence or reasonably calculated to lead to the
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discovery of admissible evidence. Code Civ. Proc., § 2017.010. (See California Code, Code
ll of Civil Procedure § 2017.210; Catholic Mutual Relief Society v. Superior Court, (2007) 42
Cal. 4th 358.
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Attached hereto as Exhibit 8 is a true and accurate copy of excerpts from the PMQ deposition
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indicating there was an incident report generated for Mrs. Newton. Attached hereto as Exhibit 9 is
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a true and accurate copy of excerpts from the PMQ deposition indicating the deponent did not even
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look for responsive documents.
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I declare under penalty of perjury under the laws of the state of California and of my own
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personal knowledge that the foregoing is true and correct and that if called upon, I could and
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would testify thereto.
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Executed in Sacramento, California, on Monday, October 5, 2020.
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RD Sean R. Laird
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
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27 EXHIBIT 1
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PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL
DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER.
Sean R. Laird (SBN 214916)
The Law Firm of Sean R. Laird
805 16th Street
Sacramento, CA 95814
(916) 441-1636
(916) 760-9002
seanlairdlaw@gmail.com
Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
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PATSY NEWTON, individually; HAROLD Case No. 20CV09091
ll NEWTON; individually; SUZANNE BOLEN,
individually. NOTICE OF ORAL AND VIDEOTAPED
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DEPOSITION OF PERSON MOST
13 Plaintiffs, QUALIFIED FROM ENLOE MEDICAL
CENTER REGARDING CERTAIN
14 VS.
DOCUMENTS AND REQUEST FOR
15 PRODUCTION OF DOCUMENTS AT
ENLOE MEDICAL CENTER; and DOES | -
DEPOSITION.
16 50, inclusive,
17 Defendants, Hon. Tamara L. Mosbarger
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20 Complaint Filed: 5/29/2020
Trial Date: None Set
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TO DEFENDANT(S) AND THEIR ATTORNEY OF RECORD:
23 PLEASE TAKE NOTICE that at the time, date and place specified below, Plaintiff will
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take the oral and videotaped depositions of the witness identified below, before a Certified
25 Shorthand Reporter from the firm of Sacramento Deposition Services., or before any notary public
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authorized to administer oaths in the State of California and before a videographer who is present
27 at the specified time and date. Pursuant to CRC 3.1010, this deposition may be taken via
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videoconference. Plaintiff reserves the right to be personally present at the deposition, without
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NOTICE OF ORAL AND VIDEOTAPED DEPOSITION OF PERSON MOST QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING
CERTAIN DOCUMENTS AND REQUEST FOR PRODUCTION OF DOCUMENTS.
1 giving prior notice, pursuant to CRC 3.1010(a)(3). The Plaintiff reserved the right to use the
2 videotaped depositions at trial pursuant to CCP 2025.220 and 2025.620. The depositions will
continue, day to day, excepting Sundays and holidays, until completed.
This Notice is being served on the following parties and/or attorneys for parties:
Attorneys for ENLOE MEDICAL CENTER;
Robert Zimmerman
Schuering Zimmerman & Doyle, LLP
400 University Ave,
Sacramento, CA 95825
PLEASE TAKE FURTHER NOTICE that pursuant to CCP §§2025.220(a)(4) and
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2025.280(a), said deponent is required to bring with him/her to the deposition the following
ll
ORIGINAL documents for inspection and COLOR photocopying and the NATIVE (ESI)
12
electronic version of the medical records. Failure to comply with this request will result in a
13
formally noticed Motion to Compel Production of each item, and all costs incurred in bringing said
14
motion will be requested.
15
WITNESS: Person or Persons Most Qualified From Enloe Medical Center Regarding
16
the Following Subject Areas:
17
The existence of the documents requested below;
18
The electronic creation, duplication, and/or storage of the documents requested
19
below;
20
Any and all document retention/destruction policies that would relate to any of
21
the documents requested below;
22
The location of the documents requested below;
23
The organization, indexing, and/or filing of the documents requested below;
24
The method of search for the documents requested below;
25
The completeness of the documents produced; and
26
The authenticity of the documents produced.
27
28
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NOTICE OF ORAL AND VIDEOTAPED DEPOSITION OF PERSON MOST QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING
CERTAIN DOCUMENTS AND REQUEST FOR PRODUCTION OF DOCUMENTS.
PLACE: 1528 Esplanade
Chico, CA 94926
DATE: Thursday, September 3, 2020
TIME: 10:00 a.m.
PLEASE TAKE FURTHER NOTICE THAT each of the above deponents is directed to
bring to his or her depositions the documents identified below.
REQUESTS FOR PRODUCTION
1 The ORIGINAL RECORDS in their NATIVE (ESJ) version, including their native
electronic version, of any writings regarding Patsy Newton, including, but not limited to, medical
and psychosocial records or chart notes, lab tests, x-rays, reports, correspondence, office records,
office charts, billing and accounting records, consultation records, contracts, written admission
10
agreements, and all other manner of DOCUMENTS (for purposes of this PMQ notice and the
ll
request for documents sought herein, the term “DOCUMENTS” shall mean any writing or
12
tangible thing from which data or information can be obtained or translated [if necessary through
13
detection devices into usable form]) pertaining to Patsy Newton.
14
2. All ORIGINAL PHOTOGRAPHS of Patsy Newton, including but not limited to
15
all photographs of her wound taken during any of her stays at YOUR FACILITY.
16
3 All billing records of any kind relating to Patsy Newton.
17
4 All policy and procedure manuals in effect at YOUR FACILITY or YOUR
18
HOSPITAL (for purposes of this PMQ notice and the request for documents sought herein, the
19
terms “YOU,” “YOUR” and “YOUR FACILITY” or “YOUR HOSPITAL" shall mean Enloe
20
Medical Center including its agents and employees and investigators and/or anyone working on
21
your behalf) during the residency of Patsy Newton that address any of the following topics: (1)
22
pressure sore protocols; (2) monitoring of patients for pressure sores; (3) prevention of pressure
23
sores; (4) assessment of pressure sores; (5) staging of pressure sores; (6) identification of
24
pressure sores; (7) monitoring of patients for infection; (8) treatment of infection; (9)
25
administration of medication; (10) pain assessment; (11) pain management; (12) documentation
26
of care; (13) notification of family members and/or surrogate decision makers of change in
27
patient condition; (14) notification of physician of change in patient condition; (15) hydration/
28
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NOTICE OF ORAL AND VIDEOTAPED DEPOSITION OF PERSON MOST QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING
CERTAIN DOCUMENTS AND REQUEST FOR PRODUCTION OF DOCUMENTS.
dehydration; and (16) nutrition/malnutrition (17) bladder output / urine output monitoring and
assessment. (18) initial nursing assessments / weekly assessments / skin assessments.
5. Any Nursing Policy and Procedure Manuals pertaining to the operation of YOUR
FACILITY in effect during the residency of Patsy Newton, for the unit or units wherein Ms.
Newton resided.
6. Any Hospital Administration Policy and Procedure Manuals pertaining to the
operation of YOUR FACILITY in effect during the residency of Patsy Newton
7
Any and all job descriptions for any employee of YOUR FACILITY who
provided any care to Patsy Newton, in effect during the residency her residency.
10 8 Please provide the Floor Plan for YOUR HOSPITAL (“HOSPITAL” means
ll Enloe Medical Center, located at 1531 Esplanade, Chico, CA 95926) showing the entire layout of
12 the rooms, nurses stations, etc. during Mr. Newton’s stay.
13 9, Please provide the nursing department organizational chart for YOUR
14 HOSPITAL in effect in September 2019 - December 2019, for all departments on each floor
15 PLAINTIFF (“PLAINTIFF” means only Patsy Newton in these Requests) stayed, during the
16 relevant times for PLAINTIFF’s stay at YOUR HOSPITAL.
17 10. Please provide the organizational chart for YOUR HOSPITAL in effect in August
18 2019 - December 2019.
19 11. Please provide YOUR organizational chart in effect in August 2019 - December
20 2019.
21 12. Please provide Assignment Sheets for the relevant time periods of each unit in
22 which PLAINTIFF stayed at the HOSPITAL, from August 2019 - December 2019.
23 13. Please provide Staffing Schedules for the relevant time periods of each unit in
24 which PLAINTIFF stayed at the HOSPITAL, from August 2019 - December 2019.
25 14, Please provide time cards for all nursing staff who worked in the each unit in
26 which PLAINTIFF stayed at the HOSPITAL from August 2019 - December 2019.
27 15. Please provide YOUR 2017 Nursing Department budget for each unit in which
28 PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 - December 2019.
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NOTICE OF ORAL AND VIDEOTAPED DEPOSITION OF PERSON MOST QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING
CERTAIN DOCUMENTS AND REQUEST FOR PRODUCTION OF DOCUMENTS.
16. Please provide YOUR 2018 Nursing Department budget for each unit in which
PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 - December 2019.
17. Please provide YOUR 2019 Nursing Department budget for each unit in which
PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 - December 2019.
18. Please provide YOUR 2020 Nursing Department budget for each unit in which
PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 - December 2019.
19. Please provide the the HOSPITAL’s Nursing Management Policies in effect in
September of 2019.
20. Please provide any and all DOCUMENTS (“DOCUMENT®” means any writing
10 or tangible thing from which data or information can be obtained or translated (if necessary
ll through detection devices into usable form), known to you or in your custody, possession or
12 control, which is (or can be) printed, recorded, or reproduced by any process. This definition
13 expressly includes, but is not limited to, documents stored on computers, emails, text messages,
14 electronic messages, databases, originals, copies, photographs, calendars, diaries, and
15 handwritten documents or notes) showing the acuity levels (by use of “PCS” or “Medicus”) on
16 every shift for the unit in which PLAINTIFF was a patient from August 2019 - December 2019.
17 21. Please provide any and all DOCUMENTS showing the acuity levels (by use of
18 “PCS” or “Medicus”) on every shift for each unit in which PLAINTIFF was a patient from
19 August 2019 - December 2019.
20 22. Please provide the Patient census in the unit of the HOSPITAL for each shift of
21 each day during which PLAINTIFF was a patient from August 2019 - December 2019.
22 23. Please provide the policies in effect at the HOSPITAL that provide direction for
23 regulatory compliance regarding acuity staffing.
24 24. Any and all DOCUMENTS regarding determinations YOU made that licensed
25 nursing staff assigned to care for PLAINTIFF in September 2019 demonstrated current
26 competence in providing care before they were assigned to PLAINTIFF.
27
28
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NOTICE OF ORAL AND VIDEOTAPED DEPOSITION OF PERSON MOST QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING
CERTAIN DOCUMENTS AND REQUEST FOR PRODUCTION OF DOCUMENTS.
25. Any and all DOCUMENTS regarding methods by which minimum licensed
nursing staffing ratios were maintained during breaks of nurses assigned to care for PLAINTIFF
between August 2019 - December 2019.
20. Any and all DOCUMENTS regarding the criteria for assignment of nursing
personnel in effect at the HOSPITAL between August 2019 - December 2019.
27. All Incident or Accident Reports at the HOSPITAL concerning PLAINTIFF.
28. All Incident or Accident Reports at the HOSPITAL concerning all other residents
who were in the same unit, at the same time as PLAINTIFF between August 2018 - current
date. (Names and identifying information of other residents should be redacted for privacy
10 purposes and are specifically excluded from this request.)
Preview
Superior Court of California F Sean R. Laird (SBN 214916) County of Butte The Law Firm of Sean R. Laird | 805 16th Street 10/5/2020 L Sacramento, CA 95814 (916) 441-1636 D (916) 760-9002 By Deputy Electronically FILED seanlairdlaw@gmail.com Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 10 PATSY NEWTON, individually; HAROLD Case No. 20CV01091 ll NEWTON; individually; SUZANNE BOLEN, individually. DECLARATION OF SEAN R. LAIRD 12 IN SUPPORT OF PLAINTIFF PATSY Plaintiffs, NEWTON’S MOTION TO COMPEL 13 DOCUMENTS FROM DEFENDANT 14 VS. ENLOE MEDICAL CENTER. 15 ENLOE MEDICAL CENTER; and DOES | - 16 50, inclusive, DATE Octomber 28, 2020 TIME: 9:00 a.m. 17 Defendants, DEPT: 1 18 Hon. Tamara L. Mosbarger 19 20 Complaint Filed: 5/29/2020 21 Trial Date: 12/14/2020 22 23 24 25 26 27 28 -1- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. I, SEAN R. LAIRD, declare as follows: 1 Tam an attorney at law, duly licensed to practice in the courts of the state of California. I am the attorney of record for plaintiff Patsy Newton. Except where I have stated otherwise, I have personal knowledge of the facts stated herein and if called as a witness I could testify competently as to the matters on which I declare. 2. This is a tragic case of elder neglect by defendant which caused the horribly debilitating pressure ulcer that exposed Mrs. Newton’s flesh and bone and caused her to be bedridden and severely debilitated. Plaintiff has alleged elder abuse and neglect. Due to Mrs. Newton’s advanced age and constellation of precarious health conditions this matter has been set 10 for preferential trial on December 14, 2020. Plaintiff served a notice of deposition on Defendant ll Enloe Medical Center to produce a Persons Most Qualified regarding certain documents and the 12 production of those documents. (See Exhibit 1.) Defendant served objections and thereafter 13 produced a single witness and refused to produce documents responsive to many of plaintiff’s 14 requests. (See Exhibit 2.) Plaintiff's counsel made efforts right after to the deposition to begin to 15 meet and confer, on the record. (See Exhibit 3.) In addition, plaintiff’s counsel made extensive 16 efforts thereafter, in writing, to meet and confer on the production of documents. (See Exhibit 4.) 17 Despite this effort, defendants maintained their position as to the disputed documents and, 18 moreover, despite indicating they would provide documents responsive to some requests, have 19 failed to do so to date, requiring plaintiff to seek an order for production. (See Exhibit 5.) 20 Plaintiff’s counsel will continue to meet and confer with defendants in order to attempt to narrow 21 the scope of disagreement and will notify the Court if defendants produce responsive documents. 22 (See Exhibit 6.) Attached hereto as Exhibit 1 is a true and accurate copy of plaintiff’s Notice of 23 Deposition of PMQ from Enloe Medical Center regarding documents and request for production of 24 documents. Attached hereto as Exhibit 2 is a true and accurate copy of Defendants Amended 25 Objections to plaintiff's PMQ deposition notice. Attached hereto as Exhibit 3 is a true and 26 accurate copy of counsel’s initial efforts to meet and confer on the documents at issue herein. 27 Attached hereto as Exhibit 4 is a true and accurate copy of plaintiff’s September 7, 2020 meeting 28 and conferring on the disputes. Attached hereto as Exhibit 5 is a true and accurate copy of -2- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. defendant’s September 15, 2020 corresponding replying to plaintiff’s meet and confer efforts. Attached hereto as Exhibit 6 is a true and accurate copy of plaintiff’s correspondence to defendants dated October 5, 2020 notifying counsel that we are willing to continue to meet and confer and will notify the court of further resolution of issues. 3 Documentary evidence forms the critical basis of any elder abuse case. Before other discovery can proceed effectively, including the depositions of the numerous caregivers, Plaintiff requires the underlying documentation to address the various allegations made in the complaint in order to formulate cross examination of percipient witnesses. Jd. Plaintiffs emphasize that this is an elder abuse case in which plaintiffs bear a heightened burden of proof in establishing 10 not only that defendants neglected Mrs. Newton, but also that the neglect was reckless, malicious, ll oppressive or fraudulent and that the reckless neglect was engaged in, authorized or ratified by a 12 “managing agent.” (See CACI 3103.) Given this burden, plaintiffs naturally are entitled to 13 documents showing that nursing providers and key management personnel were aware of the 14 widespread problems occurring at their facility and did little to nothing to address them. Jd. 15 Plaintiffs have alleged that key management personnel directly participated in the neglect and 16 ratified the neglect of Mrs. Newton. (See Complaint at §] 25-32.) The documents requested are 17 key components to this showing. /d. Plaintiffs are entitled to these documents and testimony in 18 order to properly conduct depositions that have already begun and must be completed on a 19 preferential timeline. Jd. 20 4 Good cause supports an order compelling defendants to produce the documents 21 requested in Plaintiffs PMQ deposition notice to Enloe Medical Center. As of the filing of this 22 motion defendants have failed to produce the following documents despite agreeing to do so, in 23 writing: 24 Documents Which Have Been Agreed To, Yet Not Produced: Request Nos. 4-6 & 19. These requests seek Policy & Procedure Manuals that govern 25 various employees. Request No. 4 seeks all policy and procedure manuals regarding a 26 number of patient care issues relevant to this case that were in place during plaintiff’s residency. Request No. 5 seeks a copy of any nursing policy and procedure manuals in 27 effect during plaintiff’s residency. Similarly, Request No. 19 seeks a copy of all 28 nursing management care policies, procedures and manuals that were in effect during the residency of plaintiff. Good cause for the documents exist, as the facility’s policy -3- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. and procedure manuals are extremely probative to the issues in this case. These manuals reflect the facility’s own policies that personnel are not only expected to know about certain patient care issues, but are also required to follow in providing care to residents. It is plaintiffs’ position that the care provided to plaintiff grossly failed to meet the facility’s own policies and procedures on numerous occasions. Failure to follow policies and procedures and failure to insure that the nursing staff is familiar with the policies and procedures constitutes recklessness, in that the individuals involved knew that there was a high probability that this conduct would cause harm and knowingly disregarded this risk. Requests No. 20-23 ;25; 29; 36; 56 these individual requests seek documents that demonstrate the acuity level (amount of care needs) of the various residents that hospital staff was tasked with providing care to in the same unit as Mrs. Newton, the census (number of patients) and documents which showed how staffed maintained sufficient staff to care for all of the needs of all of the patients at all times, including breaks. At the PMQ 10 deposition, the deponent indicated there was a “Rationale Document” that was discussed ll post-deposition that defense counsel indicated he would locate and produce in writing. (See Exhibit 5.) These have not been produced as of yet. Plaintiff also requested, “All audits, 12 studies, or reports concerning, referring or relating to the quantitative or qualitative 13 adequacy of the staff of THE HOSPITAL and which were conducted or otherwise prepared in the calendar year (2019) PLAINTIFF resided at THE HOSPITAL.” 14 Defendant objected on various privilege grounds, but failed to produce a privilege log so plaintiff could address the veracity of those privileges. As discussed more below, the 15 documents and data in underlying reports, made by percipient witnesses regarding staffing 16 are not protected by a claim of privilege or quality assurance. (See the arguments related to Requests 27, 28 and 30, below.) Moreover, any privacy concern must be balanced and can 17 be obviated with a protective order, which plaintiffs are willing to enter. 18 Request No. 53 As to defendants indicated they would provide Assignment Despite 19 Objection forms (“ADO’s”) for the requested time period, “September 2017 and the present 20 date.” The supplemental production was limited to 2019. A glance at the one document provided shows the exact type of evidence that demonstrate unequivocally that nurses 21 providing care to Mrs. Newton told their supervisors that: “The staffing/skill mix was insufficient to the individual patient care needs/requirements of patients due to failure to 22 provide additional staff based on acuity.” (See Exhibit 7.) Additionally nurses in this 23 document were concerned that the staffing mix would not provide breaks by a direct care RN to prevent fatigue, accidents and errors. /d. Additionally these nurses indicated that 24 direct patient care duties did not allow time for charge nurse duties and would cause non- 25 compliance with the required 1:5 ratio. Jd. These statements directly support the statements and allegations made by Mrs. Newton in her complaint. Moreover, these documents show 26 the paper trail to demonstrate that supervisors were notified and other departments in 27 charge of “staffing” were notified of these deficiencies. Jd. We asked for all ADO from these units for a two year (relevant) period to show the notice that supervisors had of 28 complaints of understaffing and complaints that residents care needs could not be met. -4- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. Showing this notice, and the facility’s lack of responsiveness will strongly support the recklessness, malice, oppression and fraud allegations plaintiff has made, because of the awareness of these concerns and the lack of the corporate decision makers to rectify these problems. Attached hereto as Exhibit 7 is a true and accurate copy of the ADO produced at the PMQ deposition - Exhibit 16 to the deposition. 5 Good cause supports an order compelling defendants to produce the documents requested below in Plaintiffs PMQ deposition notice to Enloe Medical Center. As of the filing of this motion defendants have failed to produce the following documents, failed to provide privilege logs consistent with their objections, and have maintained their objections, necessitating 10 this motion: ll Documents Which Defendants Have Refused to Produce: 12 Requests No. 15 - 18; 49. - Requests 15-18; 49 requested nursing department budgets for the units in which plaintiff stayed, between the years 2017-2020. Defendants served 13 objections on the following grounds: Right to Privacy, relevance. No other grounds. The 14 relevancy of the documents are unquestionable. To begin, the request is not seeking any financial information because of the nature of what the document is. A budget is simply a 15 forward-looking plan regarding expenses and spending. It tells you nothing about the “financial condition” ie. - relative wealth, economic strength, profits, losses and so on of 16 Enloe Medical Center. Even so, under controlling California case law, plaintiffs may use 17 evidence ofa defendant’ profits or financial condition in the liability phase of a trial when such evidence is relevant to liability. See, e.g., Rawnsley v. Superior Court, 183 Cal. 18 App. 3d 86 (1986); Notrica v. State Compensation Ins. Fund, 70 Cal. App. 4 911, 939 19 (1999). Further, the documents are entirely relevant given the allegations of plaintiffs” complaint. Plaintiff’s allegation that defendant was insufficiently staffed is relevant to 20 liability as plaintiffs believe insufficient staffing of the facility contributed to the reckless 21 neglect of plaintiff and that managing agents purposefully underfunded the units, causing the failures in patent care that let to Mrs. Newton’s neglect. The facility’s budget is 22 relevant because plaintiffs’ expert will use and rely upon the budget to assess whether the facility had sufficient staffing. Specifically, the facility’s budget will show how much 23 defendants budgeted to the nursing department and to each level of nursing personnel 24 licensed, unlicensed, and supervisory charges in particular). If defendants inadequately budgeted from the outset, such evidence will powerfully support plaintiffs’ contention that 25 the reckless neglect plaintiff suffered was authorized, participated in, or ratified by a 26 managing agent. To pursue this theory of liability, plaintiffs are entitled to gather records regarding defendant’s budgeting practices for the time frame requested to show a pattern 27 and practice of insufficient staffing on the part of the facility. Accordingly, these requests 28 are not “irrelevant.” -5- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. As to defendant’s privacy objection, this objection lacks merit. First, as a business entity, Enloe itself does not have a per se right to privacy. See, e.g., Roberts v. Gulf Oil Corp., 147 Cal. App. 3d 770, 796-97 (1983). The right to privacy must be balanced against the plaintiff’s rights in this lawsuit to relevant information, especially when it can be protected from widespread disclosure. Given that the request is narrowly tailored to the units/departments where plaintiff resided, in a reasonable time frame, that will show a pattern and practice of under-budgeting (and corresponding understaffing) and given that plaintiffs have an heightened burden of proof to show recklessness by a managing agent through clear and convincing evidence, this type of documentation is exactly the kind that can empirically support plaintiff’s position and that trial courts have allowed to be examined in the past. Any privacy concern can be obviated by plaintiff’s willingness to enter into a protective order, which we are willing to do. Requests No. 27, 28 and 30. - Requests 27, 28, and 30 request various incident and investigative reports, both those specifically related to Mrs. Newton and others related to 10 similarly situated patients whose care triggered the generation of an incident report that ll would, in turn, place managing agents on notice of quality of care concerns at the hospital. Hospitals are required, pursuant to California law, to generate incident reports in relation 12 to certain triggering events that are typically indicative of poor quality of care. For 13 instance, any time a patient develops a hospital acquired pressure ulcer (like the one Mrs. Newton developed herein), the hospital is required to generate an incident report. The 14 PMQ deponent indicated that there was, in fact, such an incident report generated for Mrs. Newton. Despite this, defendants refused to produce it. (See and Exhibit 8.) 15 Records from the Department of Public Health show numerous other hospital 16 acquired pressure ulcers at Enloe Medical Center which would have triggered the generation of an incident report. Similarly, we are entitled to other incident reports related 17 to the units where plaintiff resided for a relevant time period to show notice of quality of 18 care concerns. It should be noted that during meet and confer efforts, plaintiff clarified the request to: all the incident reports, redacted of patient information, generated from the 19 units where plaintiff resided from 2018 through the current date. The documents are 20 sought to show a pattern of repeated violations by the facility that should have put the facility and the managing agents of these units on notice of shortcomings in patient care. 21 Given this purpose, plaintiffs are entitled to documents extending a few years before Mrs. Newton’s admission. Consistent with what is mentioned above, plaintiffs are required to 22 make a showing of recklessness based on clear and convincing evidence, thus discovery of 23 this nature is critical in elder abuse cases and the scope of discovery is much different than the run-of-the-mill “malpractice” case. Plaintiffs intend to show that there were ongoing 24 pressure ulcer problems in at this hospital, and other incidents that should have sounded 25 the alarms, that the supervising agents knew about them, and did nothing to prevent them, leading to Mrs. Newton’s neglect. Moreover, the months after her discharge are relevant to 26 adoption, approval and ratification of the poor treatment Mrs. Newton received. 27 Defendants did not make any relevancy objections. Instead their objections focused on attorney-client, work product, and 1157 privileges. Defendants assert that the 28 mere fact that these items are entered into their “MIDAS” system, such action converts -6- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. them to “records of organized committees” exempt from disclosure under Evidence Code section 1157. This is absurd. Incident reports are not protected by peer review privileges under these circumstances. In fact, the opposite is true. Incident reports are the reports generated by those who observe the incident. These raw reports are not the reports “of the committee.” Privileges are statutory constructs, not policy determinations made by the courts on ade novo basis. The underlying factual shortcomings make the privilege wholly inapplicable under the scenario presented in this case. To be sure, Evidence Code section 1157 protects the “proceedings and records of organized committees” or “peer review bodies as defined in section 805 of the Business and Professions Code” from discovery. That is, when the committee holds their meetings to discuss quality assurance issues, their conversations, the reports the committee generates, the recommendations they make, the minutes of their meetings are all protected from disclosure. Plaintiff is not seeking any of that information. To date, defendants cite no cases, statutes or regulations that support their position that the reports generated by floor nurses, charge nurses and those providing 10 care, that describe the incident at or near the time of the events are in any way protected. ll To be certain, defendants have never offered any evidence to date by way of declaration, or even in the meet and confer process, that a peer review board or organized committee 12 who generated any of the documents sought in this case. 13 Evidence Code 1157 provision protects the proceedings and records of hospital or medical review committees having the responsibility of evaluation and improvement of 14 the quality of care rendered in a hospital. Privileges are generally disfavored in the law and must be strictly construed. Fox v. Kramer (2000) 22 Cal. 4th 531, 547. Further, the 15 burden of establishing entitlement to nondisclosure rests with the party resisting discovery. 16 Santa Rosa Memorial Hospital v. Superior Court (1985) 174 Cal. App. 3d 711, 727. Failing to show that the records complied with the strict statutory constructs of Evidence 17 Code §1157, takes them out of the privilege defendant now asserts in withholding the 18 documents. It should be noted here according to the testimony that there is was a failure here, 19 pursuant to California Code of Civil Procedure Section 2025.230 to produce the Person 20 Most Qualified as requested in our deposition notice and there was a corresponding failure to take any steps to see whether incident reports existed as requested. (See Exhibit 9.) 21 California Code of Civil Procedure Section 2025.230 requires that the PMQ deponent 22 must be prepared to testify “to the extent of any information known or reasonably available.” 23 Request No. 35 - Request 35 sought “All applications by THE HOSPITAL to the 24 California Department of Health and Human Services, and the Health Care Finance 25 Administration regarding the operation, licensure and medical reimbursement of or to THE HOSPITAL the two calendar years preceding PLAINTIFF’S residency.” Defendants 26 objected only two grounds: relevance and over-breath and refused to produce records. 27 Good cause exists for their production: The facility’s application to relevant governing agencies contains representations, covenants and promises that underlie the hospital’s 28 licensure. This includes agreements regarding staffing and maintaining quality care, both of -7- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. which are core issues in Mrs. Newton’s case. Moreover, these would be representations, covenants and promises that managing agents are making regarding ensuring quality care. Documents showing what promises were made to the State of California, contrasted with facts in this case that show these promises made by managing agents were not being kept are highly probative of recklessness, malice, fraud and oppression - all of which plaintiff is required to show that a managing agent participated in by clear and convincing evidence. This increased burden of proof should extend the net of discovery, not retract it as defendants suggest. These documents are plainly relevant. Moreover, they are limited in time to the “two calendar years preceding PLAINTIFF’s” admission. Two years is the appropriate amount of time to show an ongoing pattern and practice of making promises, not following through with them, failing to make promised changes, and continuing to have patients suffer the same repeated injuries similar to Mrs. Newton’s - hospital acquired pressure ulcers (HAPU’s). DPH records show repeated deficiencies for HAPUs, plaintiff should be entitled to see what covenants, promises, and changes were promised in their various applications to the various oversight agencies 10 ll Request No. 37 - Request 37 asks for “any and all DOCUMENTS from any source... concerning complaints by any person or entity about any of the following at THE 12 HOSPITAL: (and lists 21 categories of complaints relevant to this case, i.e. - pressure 13 ulcers, understaffing, failing to monitor, etc.) Good cause clearly exists for documents that demonstrate a history of complaints, and the corresponding inference of notice of quality of 14 care issues that are central to those alleged herein. Defendant’s witness testified that these complaints would all be contained in its MIDAS system. (See Exhibit 10.) The witness 15 testified that the complainants, such as family members can call in and the complaint is 16 entered into the system, or in the case of employees, they can actually enter the complaint in themselves. Defendant, however, failed to produce the log that is clearly responsive and 17 relevant to the request. Jd. The very log that captures the various real-time complaints 18 throughout the hospital is directly responsive to Request 37. As discussed at length above, privilege objections have no merit in refusing to produce responsive documents not 19 generated by a quality assurance committee. The statements made by witnesses or ascribed 20 by a hospital employee at or near the time the witness is making the complaint is not a communication that is protected by any privilege in California. 21 Any privacy objections that defendants make are of course subject to a balancing test, which, here, clearly and overwhelming favors the plaintiff’s interests. Moreover, the 22 privacy interests involved can be balanced by a HIPAA complaint protective order, which 23 plaintiff told defendants they were willing to enter into prior to even bringing a motion to compel. HIPAA allows for disclosure of third-party information if the appropriate 24 protective orders are in place. (See 45 CFR § 164.512(e)). Thus, plaintiff seeks unreacted 25 complaints of any and all individuals responsive to Request 37 contained in the MIDAS system, subject to a HIPAA compliant protective order. Plaintiffs have a compelling interest 26 in the information sought. The deposition notice and proposed use ofa protective order are 27 appropriately tailored to that interest, and Plaintiffs' interest overcomes any countervailing privacy interest. 28 -8- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. Requests No. 38-40; 58 these requests asked Defendants to provide documents identifying the supervisory and discretionary decision-making employees including those who make planning level decisions and those who sit on the governing board, including job descriptions of the same. Good causes exists for the production of these documents: as mentioned above, this is not a run-of-the-mill professional negligence case. Plaintiff alleges and intends to show that the understaffing and lack of care that led to her neglect was engaged in by managing agents. In addition plaintiff alleges and intends to show that managing agents ratified the neglectful conduct. Merely asking for documents identifying who these individuals are so, for instance, they can be deposed is clearly relevant and good causes exists. Defendant objected vague and ambiguous, irrelevant, overbroad and violative of business and corporate privacy rights. The objections are not well founded. The names of these supervising agents are not subject to privacy objections (see the arguments above). Moreover, Plaintiffs have relegated these requests to the calendar year that plaintiff was a resident (2019), thus the request is not overbroad. Defendants seem to be consistently making the “relevance” objection regarding supervisory and governing board members. 10 Yet, I presume defendants will be making arguments at trial that we are required to show ll that the neglect of Mrs. Newton was engaged in, ratified, adopted or approved by a managing agent in order to get the enhanced remedies under the Elder Abuse Act. Given 12 that is defendant’s (assumed) position, their relevance objection is not well founded and 13 they should be required to produce responsive documents. 14 Requests No. 44-46 - the requests asked for minutes of meetings between shareholders, governing bodies, or boards of directors. Good cause exists for the production of these 15 documents. As described at length above, given the burden of proof of showing conduct of 16 the corporate actors, what issues of which they had notice and their failures to address these issues, complaints and concerns related to patient care, plaintiffs are entitled to documents 17 showing notice, knowledge of the failings that inevitably led to Mrs. Newton’s neglect. The 18 minutes will also show their direct participation in such by memorializing their notice of, and positions on, budgeting, DPH surveys, lawsuits, deficiencies, complaints and the like. 19 Notice during a relevant time frame - here limited two two years - seems reasonable in light 20 of the steps that can be taken (or not taken) during that timeframe from a management perspective. Failures by the governing body to address these issues will support plaintiffs’ 21 contention that the reckless neglect plaintiff suffered was a result of failures on the part of managing agents, which plaintiffs are required to show under the Elder Abuse Act. 22 Because plaintiffs are attempting to show a pattern and practice in this regard, plaintiffs are 23 entitled to seek documents extending beyond the time of plaintiffs residency and relating to patient care issues other than those involving plaintiff. For these reasons, and the other 24 reasons stated above, these documents are relevant, and have been universally discoverable 25 in every elder abuse case I’ve done. They touch upon no privilege, there is no attorney client privilege or work product privilege with regard to corporate meeting minutes, in fact, 26 often when attorneys brief corporate boards, the minutes will so reflect and will not contain 27 privileged information. Moreover, the corporate meeting minutes are not quality assurance meetings protected by the limited privileges of 1157 or the “Patient Safety Work Privilege” 28 -9- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. defendants object to, and do not even come close to meeting the elemental requirements that would invoke such a privilege, described at length above. Requests No. 50 - 51 requested the insurance policy as applied to this matter and any reservation of rights letter. It should be noted that defendants did not serve objections to the production of this document, instead they indicated they would provide it: “Responding Party will comply with this request.” Moreover, defendants did not provide a complete copy of the insurance policy, but instead provided a two page certificate of liability insurance. This is not the policy. Please provide the complete policy. You did not object to this production either, you indicated you would comply with the request. Good causes exists for the discovery of these documents, as both California statutory and case law expressly provide for it. In California, pretrial discovery in a civil action is governed by the Civil Discovery Act, Code Civ. Proc., § 2016.010 et seq. As a general matter, information is discoverable if it is relevant to the subject matter of an action and, additionally, is either admissible in evidence or reasonably calculated to lead to the 10 discovery of admissible evidence. Code Civ. Proc., § 2017.010. (See California Code, Code ll of Civil Procedure § 2017.210; Catholic Mutual Relief Society v. Superior Court, (2007) 42 Cal. 4th 358. 12 Attached hereto as Exhibit 8 is a true and accurate copy of excerpts from the PMQ deposition 13 indicating there was an incident report generated for Mrs. Newton. Attached hereto as Exhibit 9 is 14 a true and accurate copy of excerpts from the PMQ deposition indicating the deponent did not even 15 look for responsive documents. 16 I declare under penalty of perjury under the laws of the state of California and of my own 17 personal knowledge that the foregoing is true and correct and that if called upon, I could and 18 would testify thereto. 19 Executed in Sacramento, California, on Monday, October 5, 2020. 20 21 22 23 RD Sean R. Laird 24 25 26 27 28 -10- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT 1 28 -ll- PLAINTIFF PATSY NEWTON'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF HER MOTION TO COMPEL DOCUMENTS FROM DEFENDANT ENLOE MEDICAL CENTER. Sean R. Laird (SBN 214916) The Law Firm of Sean R. Laird 805 16th Street Sacramento, CA 95814 (916) 441-1636 (916) 760-9002 seanlairdlaw@gmail.com Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 10 PATSY NEWTON, individually; HAROLD Case No. 20CV09091 ll NEWTON; individually; SUZANNE BOLEN, individually. NOTICE OF ORAL AND VIDEOTAPED 12 DEPOSITION OF PERSON MOST 13 Plaintiffs, QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING CERTAIN 14 VS. DOCUMENTS AND REQUEST FOR 15 PRODUCTION OF DOCUMENTS AT ENLOE MEDICAL CENTER; and DOES | - DEPOSITION. 16 50, inclusive, 17 Defendants, Hon. Tamara L. Mosbarger 18 19 20 Complaint Filed: 5/29/2020 Trial Date: None Set 21 22 TO DEFENDANT(S) AND THEIR ATTORNEY OF RECORD: 23 PLEASE TAKE NOTICE that at the time, date and place specified below, Plaintiff will 24 take the oral and videotaped depositions of the witness identified below, before a Certified 25 Shorthand Reporter from the firm of Sacramento Deposition Services., or before any notary public 26 authorized to administer oaths in the State of California and before a videographer who is present 27 at the specified time and date. Pursuant to CRC 3.1010, this deposition may be taken via 28 videoconference. Plaintiff reserves the right to be personally present at the deposition, without -1- NOTICE OF ORAL AND VIDEOTAPED DEPOSITION OF PERSON MOST QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING CERTAIN DOCUMENTS AND REQUEST FOR PRODUCTION OF DOCUMENTS. 1 giving prior notice, pursuant to CRC 3.1010(a)(3). The Plaintiff reserved the right to use the 2 videotaped depositions at trial pursuant to CCP 2025.220 and 2025.620. The depositions will continue, day to day, excepting Sundays and holidays, until completed. This Notice is being served on the following parties and/or attorneys for parties: Attorneys for ENLOE MEDICAL CENTER; Robert Zimmerman Schuering Zimmerman & Doyle, LLP 400 University Ave, Sacramento, CA 95825 PLEASE TAKE FURTHER NOTICE that pursuant to CCP §§2025.220(a)(4) and 10 2025.280(a), said deponent is required to bring with him/her to the deposition the following ll ORIGINAL documents for inspection and COLOR photocopying and the NATIVE (ESI) 12 electronic version of the medical records. Failure to comply with this request will result in a 13 formally noticed Motion to Compel Production of each item, and all costs incurred in bringing said 14 motion will be requested. 15 WITNESS: Person or Persons Most Qualified From Enloe Medical Center Regarding 16 the Following Subject Areas: 17 The existence of the documents requested below; 18 The electronic creation, duplication, and/or storage of the documents requested 19 below; 20 Any and all document retention/destruction policies that would relate to any of 21 the documents requested below; 22 The location of the documents requested below; 23 The organization, indexing, and/or filing of the documents requested below; 24 The method of search for the documents requested below; 25 The completeness of the documents produced; and 26 The authenticity of the documents produced. 27 28 -2- NOTICE OF ORAL AND VIDEOTAPED DEPOSITION OF PERSON MOST QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING CERTAIN DOCUMENTS AND REQUEST FOR PRODUCTION OF DOCUMENTS. PLACE: 1528 Esplanade Chico, CA 94926 DATE: Thursday, September 3, 2020 TIME: 10:00 a.m. PLEASE TAKE FURTHER NOTICE THAT each of the above deponents is directed to bring to his or her depositions the documents identified below. REQUESTS FOR PRODUCTION 1 The ORIGINAL RECORDS in their NATIVE (ESJ) version, including their native electronic version, of any writings regarding Patsy Newton, including, but not limited to, medical and psychosocial records or chart notes, lab tests, x-rays, reports, correspondence, office records, office charts, billing and accounting records, consultation records, contracts, written admission 10 agreements, and all other manner of DOCUMENTS (for purposes of this PMQ notice and the ll request for documents sought herein, the term “DOCUMENTS” shall mean any writing or 12 tangible thing from which data or information can be obtained or translated [if necessary through 13 detection devices into usable form]) pertaining to Patsy Newton. 14 2. All ORIGINAL PHOTOGRAPHS of Patsy Newton, including but not limited to 15 all photographs of her wound taken during any of her stays at YOUR FACILITY. 16 3 All billing records of any kind relating to Patsy Newton. 17 4 All policy and procedure manuals in effect at YOUR FACILITY or YOUR 18 HOSPITAL (for purposes of this PMQ notice and the request for documents sought herein, the 19 terms “YOU,” “YOUR” and “YOUR FACILITY” or “YOUR HOSPITAL" shall mean Enloe 20 Medical Center including its agents and employees and investigators and/or anyone working on 21 your behalf) during the residency of Patsy Newton that address any of the following topics: (1) 22 pressure sore protocols; (2) monitoring of patients for pressure sores; (3) prevention of pressure 23 sores; (4) assessment of pressure sores; (5) staging of pressure sores; (6) identification of 24 pressure sores; (7) monitoring of patients for infection; (8) treatment of infection; (9) 25 administration of medication; (10) pain assessment; (11) pain management; (12) documentation 26 of care; (13) notification of family members and/or surrogate decision makers of change in 27 patient condition; (14) notification of physician of change in patient condition; (15) hydration/ 28 -3- NOTICE OF ORAL AND VIDEOTAPED DEPOSITION OF PERSON MOST QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING CERTAIN DOCUMENTS AND REQUEST FOR PRODUCTION OF DOCUMENTS. dehydration; and (16) nutrition/malnutrition (17) bladder output / urine output monitoring and assessment. (18) initial nursing assessments / weekly assessments / skin assessments. 5. Any Nursing Policy and Procedure Manuals pertaining to the operation of YOUR FACILITY in effect during the residency of Patsy Newton, for the unit or units wherein Ms. Newton resided. 6. Any Hospital Administration Policy and Procedure Manuals pertaining to the operation of YOUR FACILITY in effect during the residency of Patsy Newton 7 Any and all job descriptions for any employee of YOUR FACILITY who provided any care to Patsy Newton, in effect during the residency her residency. 10 8 Please provide the Floor Plan for YOUR HOSPITAL (“HOSPITAL” means ll Enloe Medical Center, located at 1531 Esplanade, Chico, CA 95926) showing the entire layout of 12 the rooms, nurses stations, etc. during Mr. Newton’s stay. 13 9, Please provide the nursing department organizational chart for YOUR 14 HOSPITAL in effect in September 2019 - December 2019, for all departments on each floor 15 PLAINTIFF (“PLAINTIFF” means only Patsy Newton in these Requests) stayed, during the 16 relevant times for PLAINTIFF’s stay at YOUR HOSPITAL. 17 10. Please provide the organizational chart for YOUR HOSPITAL in effect in August 18 2019 - December 2019. 19 11. Please provide YOUR organizational chart in effect in August 2019 - December 20 2019. 21 12. Please provide Assignment Sheets for the relevant time periods of each unit in 22 which PLAINTIFF stayed at the HOSPITAL, from August 2019 - December 2019. 23 13. Please provide Staffing Schedules for the relevant time periods of each unit in 24 which PLAINTIFF stayed at the HOSPITAL, from August 2019 - December 2019. 25 14, Please provide time cards for all nursing staff who worked in the each unit in 26 which PLAINTIFF stayed at the HOSPITAL from August 2019 - December 2019. 27 15. Please provide YOUR 2017 Nursing Department budget for each unit in which 28 PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 - December 2019. -4- NOTICE OF ORAL AND VIDEOTAPED DEPOSITION OF PERSON MOST QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING CERTAIN DOCUMENTS AND REQUEST FOR PRODUCTION OF DOCUMENTS. 16. Please provide YOUR 2018 Nursing Department budget for each unit in which PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 - December 2019. 17. Please provide YOUR 2019 Nursing Department budget for each unit in which PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 - December 2019. 18. Please provide YOUR 2020 Nursing Department budget for each unit in which PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 - December 2019. 19. Please provide the the HOSPITAL’s Nursing Management Policies in effect in September of 2019. 20. Please provide any and all DOCUMENTS (“DOCUMENT®” means any writing 10 or tangible thing from which data or information can be obtained or translated (if necessary ll through detection devices into usable form), known to you or in your custody, possession or 12 control, which is (or can be) printed, recorded, or reproduced by any process. This definition 13 expressly includes, but is not limited to, documents stored on computers, emails, text messages, 14 electronic messages, databases, originals, copies, photographs, calendars, diaries, and 15 handwritten documents or notes) showing the acuity levels (by use of “PCS” or “Medicus”) on 16 every shift for the unit in which PLAINTIFF was a patient from August 2019 - December 2019. 17 21. Please provide any and all DOCUMENTS showing the acuity levels (by use of 18 “PCS” or “Medicus”) on every shift for each unit in which PLAINTIFF was a patient from 19 August 2019 - December 2019. 20 22. Please provide the Patient census in the unit of the HOSPITAL for each shift of 21 each day during which PLAINTIFF was a patient from August 2019 - December 2019. 22 23. Please provide the policies in effect at the HOSPITAL that provide direction for 23 regulatory compliance regarding acuity staffing. 24 24. Any and all DOCUMENTS regarding determinations YOU made that licensed 25 nursing staff assigned to care for PLAINTIFF in September 2019 demonstrated current 26 competence in providing care before they were assigned to PLAINTIFF. 27 28 -5- NOTICE OF ORAL AND VIDEOTAPED DEPOSITION OF PERSON MOST QUALIFIED FROM ENLOE MEDICAL CENTER REGARDING CERTAIN DOCUMENTS AND REQUEST FOR PRODUCTION OF DOCUMENTS. 25. Any and all DOCUMENTS regarding methods by which minimum licensed nursing staffing ratios were maintained during breaks of nurses assigned to care for PLAINTIFF between August 2019 - December 2019. 20. Any and all DOCUMENTS regarding the criteria for assignment of nursing personnel in effect at the HOSPITAL between August 2019 - December 2019. 27. All Incident or Accident Reports at the HOSPITAL concerning PLAINTIFF. 28. All Incident or Accident Reports at the HOSPITAL concerning all other residents who were in the same unit, at the same time as PLAINTIFF between August 2018 - current date. (Names and identifying information of other residents should be redacted for privacy 10 purposes and are specifically excluded from this request.)