Preview
Superior Court of California
ROBERT H. ZIMMERMAN, Bak No. 84345 County of Butte
SCHUERING ZIMMERMAN & DOYLE, LLP 7/7/2021
400 University Avenue
Sacramento, California 95825-6502
(916) 567-0400
FAX: 568-0400
By
op mH Glerk
Deputy
Electronically FILED
Attorneys for Defendant ENLOE MEDICAL CENTER
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
10 PATSY NEWTON, individually; HAROLD NO. 20CV01091
NEWTON, individually; SUZANNE
11 BOLDEN, individually, ASSIGNED TO JUDGE TAMARA L.
MOSBARGER FOR ALL PURPOSES
12 Plaintiffs,
DEFENDANT ENLOE MEDICAL
13 vs. CENTER'S BRIEF REGARDING
ADMISSIBILITY OF ENLOE'S
14 ENLOE MEDICAL CENTER; and DOES 1 - COMPLIANCE WITH CDPH PLAN OF
50, et al., CORRECTION AND CDPH'S FINDING OF
15 NO DEFICIENCIES
Defendants.
16
17 I,
18 INTRODUCTION
to address the
19 Defendant ENLOE MEDICAL CENTER ("Enloe") submits this brief
Department of
20 admissi bility of evidence showing Enloe's compliance with California
deficiencies in Enloe's
21 Public Health (CDPH) plans of correction and CDPH's finding of no
22 treatment of Ms. Newton.
23 Il.
24 FACTUAL BACKGROUND
25 During the course of the trial, the court has admitted into evidence three prior
red
26 deficiencies from the California Department of Public Health related to hospital-acqui
27 pressure ulcers regarding three different patients; none of which address the issues in this
28 case. As testified to, Enloe reported Mrs. Newton's hospital-acquired pressure ulcerto the
01366509.WPD 1
DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY OF ENLOE'S
CIES
COMPLIANCE WITH CDPH PLAN OF CORRECTION AND CDPH'S FINDING OF NO DEFICIEN
CDPH on September 24, 2019. The CDPH investigated the matter as required and came
to the conclusion that there were no deficiencies in Ms. Newton’s care and treatment.
(See exhibit A.)
Il.
ARGUMENT
As Enloe has previously observed, Nevarrez v. San Marino Skilled Nursing &
Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 120-123, held that CDPH notices of
investigation, statements of deficiencies, and plans of correction involving a plaintiff are
inadmissible to show a hospital's misconduct. Nonetheless, plaintiffs have relied at trial
10 on CDPH documents involving other patients to support their erroneous argument that
to
11 Enloe was on notice of deficiencies it needed to correct and is therefore subject
12 heightened remedies under the Elder Abuse Act.
13 In view of plaintiffs’ improper reliance on CDPH documents, this court has
CDPH plans
14 essentially required Enloe to introduce evidence showing its compliance with
uent remedial
15 of correction involving other patients, which is not admissible as a subseq
was notified of Mrs.
16 measure, Plaintiff has also introduced testimony that the CDPH
to not allow
17 Newton’s hospital-acquired pressure ulcer. It is extremely prejudicial
to Mrs. Newton.
18 defendant to introduce evidence of the investigation and findings related
have opened the door
19 This evidence is admissible for two related reasons. First, plaintiffs
20 to the admission of CDPH documents and related evidence through their extensive
to show that Enloe did
21 reliance on similar evidence. Second, this evidence is admissible
that Enloe was on
22 not act recklessly or maliciously and to rebut any evidence suggesting
23 notice of alleged deficiencies.
on of
24 Contrary to plaintiffs' contention, Nevarrez does not authorize the admissi
25 CDPH documents only when they help the plaintiffs' case. Nor does Nevarrez bar
's claims (an
26 admission of CDPH evidence presented for the purpose of refuting a plaintiff
27 issue that Nevarrez never addressed). As a matter of fundamental fairness, Enloe should
28 ///
01366509.WPD 2
DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY OF ENLOE'S
CIES
COMPLIANCE WITH CDPH PLAN OF CORRECTION AND CDPH'S FINDING OF NO DEFICIEN
be permitted to refute plaintiffs' arguments by relying on evidence showing its compliance
with CDPH directives and CDPH's finding of deficiencies involving Ms. Newton's care.
A Plaintiffs Have Opened the Door to the Admission of Evidence Showin
Enloe's Compliance With CDPH Plans of Correction and CDPH's Finding of No
Deficiencies in Enloe's Treatment of Ms. Newton.
A party who introduces evidence on an issue can open the door for further
evidence on that issue. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1147.) Trial
courts "should strive to prevent unfairness to either side when one side presents evidence
ona point, then tries to prevent the other side from responding." (People v. Steele (2002)
27 Cal.4th 1230, 1248; see also Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640,
10 1683 ("Where a party has ‘opened the door' on an area, it is estopped from complaining
11 that its opponent has profited by it"].)
12 Here, the admission of CDPH documents involving other patients likely prejudiced
a pattern of
13 the jury against Enloe by suggesting that Enloe may have engaged in
ract that undue
14 neglectful conduct and that Mrs. Newton fell victim to it. To counte
with the CDPH's
15 prejudice, Enloe had to introduce evidence showing its compliance
made inadmissible by
16 instructions and its plans of correction which has been specifically
introduced evidence
17 Health and Safety Code section 1280(f). In addition, plaintiffs have
CDPH of Mrs. Newton's
18 and the court has admitted evidence of Enloe’s notification of the
be allowed to introduce the
19 pressure ulcer. Moreover, it is only equitable that defendant
Newton. Having opened
20 CDPH's favorable conclusion regarding Enloe's treatment of Ms.
about Enloe's efforts to
21 the door to such evidence, plaintiffs cannot fairly complain
plaintiffs’ arguments. Without a balanced understanding of the CDPH
22 counteract
undue prejudice to
23 evidence, the jury is certain to be mislead in a manner that causes
24 Enloe.
25 _
26 11
27 _
28 //1
01366509.WPD 3
OF ENLOE'S
DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY
CORRECT ION AND CDPH'S FINDING OF NO DEFICIENCIES
COMPLIANCE WITH CDPH PLAN OF
B. Evidence Showing Enloe's Compliance With CDPH Plans of Correction and
CDPH's Findin, of No Deficiencies in Enloe's Treatment of Ms. Newton is
Admissible to Show That Enloe Did Not Act Recklessly or Maliciously, and to
Rebut Plaintiffs' Contention That Enloe Was on Notice of Deficiencies.
The standards for imposing heightened remedies on an employer under the Elder
Abuse Act generally parallel those for imposing punitive damages. (Welf. & Inst. Code, §
15657; Delaney v. Baker (1999) 20 Cal.4th 23, 31.) Case law involving punitive damages
is therefore instructive.
In the punitive damages context, evidence of a defendant's compliance with
applicable regulatory guidance can show that the defendant did not act maliciously and
6
10 is therefore not liable for punitive damages. (See Kim v. Toyota Motor Corp. (2018)
of the
11 Cal.5th 21, 36-37 [a defendant's compliance with industry standards is probative
626 F.2d
12 appropriateness of its conduct]; Nader v. Allegheny Airlines, Inc. (D.C. Cir. 1980)
practice
13 1031, 1035 [reversing punitive damage award related to an airline's overbooking
sed its approval
14 because the governing federal agency "had publicly and formally expres
206 [defendant's
15 of the practice"]; Stone Man, Inc. v. Green (Ga. 1993) 435 S.E.2d 205,
of behavior which
16 "compliance with county, state, and federal regulations is not the type
(5th ed. 1984) 36, *71
17 supports an award of punitive damages"]; Prosser & Keeton, Torts
should bar liability
18 p. 233, fn. 41 ["In most contexts. compliance with a statutory standard
19 for punitive damages"].)
Enloe's compliance with CDPH directives and CDPH's
20 Under this authority,
conclusion regarding Ms. Newton's care are inconsistent with plaintiffs’
21 favorable
remedies.
22 contention that Enloe acted so culpably that it should be subject to heightened
to comply
23 IfEnloe had truly acted recklessly or maliciously, it would not have endeavored
CDPH muster.
24 with CDPH directives, nor would its treatment of Ms. Newton have passed
steps
25 Similarly, the evidence is relevant to show why Enloe acted reasonably by not taking
Enloe's
26 to modify any staffing oversight. For this reason, too, plaintiffs’ objections to
27 evidence are meritless.
28 MIT
01366509.WPD
4
DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY OF ENLOE'S
CIES
COMPLIANCE WITH CDPH PLAN OF CORRECTION AND CDPH'S FINDING OF NO DEFICIEN
Cc The Probative Value Substantially Outweighs the Danger of Unfair Prejudice
to Plaintiffs
If the court were to weigh the evidence of the CDPH conclusion of no deficiencies
with regard to Enloe, it would clearly find that it was prejudicial to plaintiff because it
benefits Enloe. However, plaintiff has introduced evidence of three unrelated CDPH
deficiencies and evidence that Enloe notified the CDPH of Mrs. Newton’s pressure ulcer.
This evidence is before the jury. Now, Enloe is seriously prejudiced by not being allowed
to introduce evidence that the CDPH did not find any deficiencies in connection with Ms.
Newton. The jury will be confused about the outcome of the investigation given the
10 evidence that has been presented. Itis patently unfair to Enloe to be unable to cure the
ll evidence placed before the jury. Even if the court does not introduce evidence of no
for the truth of the matter asserted, the court should permit Enloe to
12 deficiencies
the evidence for the limited purpose of showing Enloe’s compliance with
13 introduce
14 previous plans of correction. This is relevant and probative to show curative evidence
repeatedly placed
related to the three other deficiencies that plaintiff has voluntarily and
did not find any
16 into evidence. Therefore, the court should allow evidence that the CDPH
17 deficiencies in this case.
18 Iv.
19 CONCLUSION
ce evidence of
20 For the foregoing reasons, this court should permit Enloe to introdu
21 CDPH's finding of no deficiencies in Enloe's treatment of Ms. Newto
July 6, 2021 & DOYLE, LLP
22 Dated:
23
24
Y parse ENLOE MEDICAL
26
27
28
01366509.WPD 5)
DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY OF ENLOE'S
CIES
COMPLIANCE WITH CDPH PLAN OF CORRECTION AND CDPH'S FINDING OF NO DEFICIEN
EXHIBIT A
State of California-Health and Human Services Agency oa?
ae
eH
California Department of Public Health =
%
el
CBPH
a
o 3
GAVIN NEWSON
TOMAS J. ARAGON, M.0., D1.P.H
Governor
Oirector und State Public Hesith Otficer
February 23, 2021
Letter 4
IMPORTANT NOTICE - PLEASE READ CAREFULLY
Mike Wiltermood, Administrator
Enloe Medical Center
1531 Esplanade
Chico, CA 95926-3310
Dear Administrator:
dent
survey for entity reported inci
On February 3, 2021, an abbreviated sta ndard ment of Publ ic
no. CA00656338 was conducted at your fa cilily by the California Depart ity
te Agency), to de termine if your facil
Health, Licensing and Certification Program (Sta
rements for nursing homes
was in compliance with federal participation requi
programs.
participating in the Medicare and/or Medicaid
aid S ervices (CMS) form, entitled
The enclosed Centers for Medicare and Medic thal no
Correction” ( CMS-2567), documents
“Statement of Deficiencies and Plan of visit. Plea se sign,
deficiencies of participation requir ements
were iden! tified during this
ess below) by Marc h 9, 2021 .
date, and return this form to our 0 ffice (see addr
NOTE: Providers registered to participat e in the
ASPEN Web: Electronic Plan of
ents made in the CMS ~ 2567 and
Correction (ePOC) application must revi ew the comm
owledged, the deficiency-free
select the “acknowledge SOD" function. Once ackn
survey's POC status changes to closed. Th e “Altestalion
of POC Submittal Terms and
a hard copy signature is not
Conditions” will serve as an electronic signal lure: therefore,
required.
please contact
If you have questions concerning the instructions contained in this letter,
Susan McBride, RN, Health Facilities Evaluator Supervisor, at 530-895-6711.
Sincerely.
pp.
Joanne Gilchrist, RN
District Manager
paca CMS-2567
.
Cali inia Department of Public Health
Licensing and Centification,Chico District Office
126 tvlisston Ranch Bivd., Gico, CA 95926 (530) 895-6711
Internat Address: www cdph.ca.qov
PRINTED: 02/07/2021
FORM APPROVED
Califomia Department of Public Health
(Xt) PROVIDER/SUPPLIERICLIA 1X2) MULTIPLE CONSTRUCTION DATE
‘STATEMENT OF DEFICIENCIES ‘COMPLETED
AND PLAN OF CORRECTION IDENTIFICATION NUMBER: A. BUILDING:
A230000013 8, WING 02/03/2021
NAME OF PROVIDER OR SUPPLIER STREET ADDRESS, CITY. STATE, ZIP CODE
4531 ESPLANADE
ENLOE MEDICAL CENTER CHICO, CA 95926
aeTAG
‘SUMMARY STATEMENT OF DEFICIENCIES
EACH DEFICIENCY MUST BE PRECEDEO BY FULL
REGULATORY OR LSC IDENTIFYING INFORMATION)
PREFIX
TAG
PROVIDER'S PLAN OF CORRECTION BE
(EACH CORRECTIVE ACTION SHOULOPRUTE
(CROSS-REFERENCED TO THE APPRO
DEFICIENCY)
E 000) Initial Comments £000
: The following reflects the findings of the California
: Department of Public Health during an
* Investigation of a facility reported incident.
Facllity reported Incident: 656338
;
The Inspection was limited to the specific facility
' reported incident investigated and does no
| represent the findings of a full inspection of the
+ facility.
Representing the Department: 39942, Health
| Facllities Evaluator Nurse (HFEN)
j No deficiencies were issued for facility reported
: incident 656338.
Ucensing and Ceriification Dinston
TITLE (6%8) DATE,
PROVIDERVSUPPLIER REPRESENTATIVE'S SIGNATURE °
LABORATORY OIRECTOR'S,
4 ol. ced ~Mhenl/ Dee}
Wcontinvation shodt 1 of 1
STATE FORM aan QiT714
PRINTED: 02/07/2021
FORM APPROVED
Califomia Department of Public Health (X3) DATE SURVEY
‘STATEMENT OF DEFICIENCIES {K1) PROVIDETUSUPPLIERICLIA (K2) MULTIPLE CONSTRUCTION: COMPLETED
AND PLAN OF CORRECTION IDENTIFICATION NUMBER: A. BUILOING:
WING 02/03/2021
CA230000013
NAME OF PROVIDER OR SUPPLIER STREET ADDRESS, CITY. STATE, ZIP CODE
1531 ESPLANADE
ENLOE MEDICAL CENTER CHICO, CA 95926
PROVIDER'S PLAN OF CORRECTION COMPLETE,
1 ‘SUMMARY STATEMENT OF DEFICIENCIES CORRECTIVE ACTION SHOULD BE ‘OATE
pREEIK EACH
Paar ' {EACH DEFICIENCY MUST BE PRECEDED BY FULL GROS S-RE FERENCED TO THE APPROPRIATE
| REGULATORY OR LSC IDENTIFYING INFORMATION} TAG EFICIENCY)
A ood Initial Comments A000
|i
i
i
Ao01
‘A oot] informed Adverse Event Notification
Health and Safety Code Section 1279.1 (c),
' "The facllity shall Inform the patlent or the party
responsible for the patient of the adverse event
by the time the report is made.”
The CDPH verified that the facility informed the
+ patient or the party responsible for the patient of
\ the adverse event by the time the report was
! made.
1
Ucensing ad Certification Olvision TITLE (6) DATE *
LABORATORY DIRECTOR'S GR PROVIO! \ER/SUPPLIER REPRESENTATIVE'S SIGNATURE
a tf continuation shee! 1c! 1
STATE FORM Qi
Proof of Service by Electronic Transmission - Civil
[Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5;
Cal. Rules of Court, rules 10.503, 2.100-2.119, 2.251]
I, Kimberly A. Powers, declare:
At the time of service, | was over 18 years of age and not a party to this action. My
business address is: 400 University Avenue, Sacramento, California 95825.
On July 7, 2021, I served the following documents:
DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY OF
ENLOE'S COMPLIANCE WITH CDPH PLAN OF CORRECTION AND CDPH'S FINDING OF
10 NO DEFICIENCIES
11 By e-mail or electronic transmission: Based on a court order or an agreement
to accept service by e-mail or electronic transmission, | caused the
12 of the parties
documents to be sent to the persons at the e-mail addresses listed below. | did not
13
14 receive, within a reasonable time after the transmission, any electronic message or other
15 indication that the transmission was unsuccessful.
16 Attorney Representing Phone/Fax/E-Mail
17 Sean R. Laird Plaintiffs PHONE: 916-441-1636
The Law Firm of Sean R. Laird FAX: 916-760-9002
18 805 16" Street EMAIL:
Sacramento, CA 95814 eanlairdlaw@gmail.com
19
20 I declare under penalty of perjury, under the laws of the State of California, that the
21 foregoing is true and correct, and that this declaration was executed on July 7, 2021, at
22 Sacramento, California.
23
24 himberly
A. Pow¢rs
25 1579-12195
26
27
28
Preview
Superior Court of California ROBERT H. ZIMMERMAN, Bak No. 84345 County of Butte SCHUERING ZIMMERMAN & DOYLE, LLP 7/7/2021 400 University Avenue Sacramento, California 95825-6502 (916) 567-0400 FAX: 568-0400 By op mH Glerk Deputy Electronically FILED Attorneys for Defendant ENLOE MEDICAL CENTER SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 10 PATSY NEWTON, individually; HAROLD NO. 20CV01091 NEWTON, individually; SUZANNE 11 BOLDEN, individually, ASSIGNED TO JUDGE TAMARA L. MOSBARGER FOR ALL PURPOSES 12 Plaintiffs, DEFENDANT ENLOE MEDICAL 13 vs. CENTER'S BRIEF REGARDING ADMISSIBILITY OF ENLOE'S 14 ENLOE MEDICAL CENTER; and DOES 1 - COMPLIANCE WITH CDPH PLAN OF 50, et al., CORRECTION AND CDPH'S FINDING OF 15 NO DEFICIENCIES Defendants. 16 17 I, 18 INTRODUCTION to address the 19 Defendant ENLOE MEDICAL CENTER ("Enloe") submits this brief Department of 20 admissi bility of evidence showing Enloe's compliance with California deficiencies in Enloe's 21 Public Health (CDPH) plans of correction and CDPH's finding of no 22 treatment of Ms. Newton. 23 Il. 24 FACTUAL BACKGROUND 25 During the course of the trial, the court has admitted into evidence three prior red 26 deficiencies from the California Department of Public Health related to hospital-acqui 27 pressure ulcers regarding three different patients; none of which address the issues in this 28 case. As testified to, Enloe reported Mrs. Newton's hospital-acquired pressure ulcerto the 01366509.WPD 1 DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY OF ENLOE'S CIES COMPLIANCE WITH CDPH PLAN OF CORRECTION AND CDPH'S FINDING OF NO DEFICIEN CDPH on September 24, 2019. The CDPH investigated the matter as required and came to the conclusion that there were no deficiencies in Ms. Newton’s care and treatment. (See exhibit A.) Il. ARGUMENT As Enloe has previously observed, Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 120-123, held that CDPH notices of investigation, statements of deficiencies, and plans of correction involving a plaintiff are inadmissible to show a hospital's misconduct. Nonetheless, plaintiffs have relied at trial 10 on CDPH documents involving other patients to support their erroneous argument that to 11 Enloe was on notice of deficiencies it needed to correct and is therefore subject 12 heightened remedies under the Elder Abuse Act. 13 In view of plaintiffs’ improper reliance on CDPH documents, this court has CDPH plans 14 essentially required Enloe to introduce evidence showing its compliance with uent remedial 15 of correction involving other patients, which is not admissible as a subseq was notified of Mrs. 16 measure, Plaintiff has also introduced testimony that the CDPH to not allow 17 Newton’s hospital-acquired pressure ulcer. It is extremely prejudicial to Mrs. Newton. 18 defendant to introduce evidence of the investigation and findings related have opened the door 19 This evidence is admissible for two related reasons. First, plaintiffs 20 to the admission of CDPH documents and related evidence through their extensive to show that Enloe did 21 reliance on similar evidence. Second, this evidence is admissible that Enloe was on 22 not act recklessly or maliciously and to rebut any evidence suggesting 23 notice of alleged deficiencies. on of 24 Contrary to plaintiffs' contention, Nevarrez does not authorize the admissi 25 CDPH documents only when they help the plaintiffs' case. Nor does Nevarrez bar 's claims (an 26 admission of CDPH evidence presented for the purpose of refuting a plaintiff 27 issue that Nevarrez never addressed). As a matter of fundamental fairness, Enloe should 28 /// 01366509.WPD 2 DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY OF ENLOE'S CIES COMPLIANCE WITH CDPH PLAN OF CORRECTION AND CDPH'S FINDING OF NO DEFICIEN be permitted to refute plaintiffs' arguments by relying on evidence showing its compliance with CDPH directives and CDPH's finding of deficiencies involving Ms. Newton's care. A Plaintiffs Have Opened the Door to the Admission of Evidence Showin Enloe's Compliance With CDPH Plans of Correction and CDPH's Finding of No Deficiencies in Enloe's Treatment of Ms. Newton. A party who introduces evidence on an issue can open the door for further evidence on that issue. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1147.) Trial courts "should strive to prevent unfairness to either side when one side presents evidence ona point, then tries to prevent the other side from responding." (People v. Steele (2002) 27 Cal.4th 1230, 1248; see also Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 10 1683 ("Where a party has ‘opened the door' on an area, it is estopped from complaining 11 that its opponent has profited by it"].) 12 Here, the admission of CDPH documents involving other patients likely prejudiced a pattern of 13 the jury against Enloe by suggesting that Enloe may have engaged in ract that undue 14 neglectful conduct and that Mrs. Newton fell victim to it. To counte with the CDPH's 15 prejudice, Enloe had to introduce evidence showing its compliance made inadmissible by 16 instructions and its plans of correction which has been specifically introduced evidence 17 Health and Safety Code section 1280(f). In addition, plaintiffs have CDPH of Mrs. Newton's 18 and the court has admitted evidence of Enloe’s notification of the be allowed to introduce the 19 pressure ulcer. Moreover, it is only equitable that defendant Newton. Having opened 20 CDPH's favorable conclusion regarding Enloe's treatment of Ms. about Enloe's efforts to 21 the door to such evidence, plaintiffs cannot fairly complain plaintiffs’ arguments. Without a balanced understanding of the CDPH 22 counteract undue prejudice to 23 evidence, the jury is certain to be mislead in a manner that causes 24 Enloe. 25 _ 26 11 27 _ 28 //1 01366509.WPD 3 OF ENLOE'S DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY CORRECT ION AND CDPH'S FINDING OF NO DEFICIENCIES COMPLIANCE WITH CDPH PLAN OF B. Evidence Showing Enloe's Compliance With CDPH Plans of Correction and CDPH's Findin, of No Deficiencies in Enloe's Treatment of Ms. Newton is Admissible to Show That Enloe Did Not Act Recklessly or Maliciously, and to Rebut Plaintiffs' Contention That Enloe Was on Notice of Deficiencies. The standards for imposing heightened remedies on an employer under the Elder Abuse Act generally parallel those for imposing punitive damages. (Welf. & Inst. Code, § 15657; Delaney v. Baker (1999) 20 Cal.4th 23, 31.) Case law involving punitive damages is therefore instructive. In the punitive damages context, evidence of a defendant's compliance with applicable regulatory guidance can show that the defendant did not act maliciously and 6 10 is therefore not liable for punitive damages. (See Kim v. Toyota Motor Corp. (2018) of the 11 Cal.5th 21, 36-37 [a defendant's compliance with industry standards is probative 626 F.2d 12 appropriateness of its conduct]; Nader v. Allegheny Airlines, Inc. (D.C. Cir. 1980) practice 13 1031, 1035 [reversing punitive damage award related to an airline's overbooking sed its approval 14 because the governing federal agency "had publicly and formally expres 206 [defendant's 15 of the practice"]; Stone Man, Inc. v. Green (Ga. 1993) 435 S.E.2d 205, of behavior which 16 "compliance with county, state, and federal regulations is not the type (5th ed. 1984) 36, *71 17 supports an award of punitive damages"]; Prosser & Keeton, Torts should bar liability 18 p. 233, fn. 41 ["In most contexts. compliance with a statutory standard 19 for punitive damages"].) Enloe's compliance with CDPH directives and CDPH's 20 Under this authority, conclusion regarding Ms. Newton's care are inconsistent with plaintiffs’ 21 favorable remedies. 22 contention that Enloe acted so culpably that it should be subject to heightened to comply 23 IfEnloe had truly acted recklessly or maliciously, it would not have endeavored CDPH muster. 24 with CDPH directives, nor would its treatment of Ms. Newton have passed steps 25 Similarly, the evidence is relevant to show why Enloe acted reasonably by not taking Enloe's 26 to modify any staffing oversight. For this reason, too, plaintiffs’ objections to 27 evidence are meritless. 28 MIT 01366509.WPD 4 DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY OF ENLOE'S CIES COMPLIANCE WITH CDPH PLAN OF CORRECTION AND CDPH'S FINDING OF NO DEFICIEN Cc The Probative Value Substantially Outweighs the Danger of Unfair Prejudice to Plaintiffs If the court were to weigh the evidence of the CDPH conclusion of no deficiencies with regard to Enloe, it would clearly find that it was prejudicial to plaintiff because it benefits Enloe. However, plaintiff has introduced evidence of three unrelated CDPH deficiencies and evidence that Enloe notified the CDPH of Mrs. Newton’s pressure ulcer. This evidence is before the jury. Now, Enloe is seriously prejudiced by not being allowed to introduce evidence that the CDPH did not find any deficiencies in connection with Ms. Newton. The jury will be confused about the outcome of the investigation given the 10 evidence that has been presented. Itis patently unfair to Enloe to be unable to cure the ll evidence placed before the jury. Even if the court does not introduce evidence of no for the truth of the matter asserted, the court should permit Enloe to 12 deficiencies the evidence for the limited purpose of showing Enloe’s compliance with 13 introduce 14 previous plans of correction. This is relevant and probative to show curative evidence repeatedly placed related to the three other deficiencies that plaintiff has voluntarily and did not find any 16 into evidence. Therefore, the court should allow evidence that the CDPH 17 deficiencies in this case. 18 Iv. 19 CONCLUSION ce evidence of 20 For the foregoing reasons, this court should permit Enloe to introdu 21 CDPH's finding of no deficiencies in Enloe's treatment of Ms. Newto July 6, 2021 & DOYLE, LLP 22 Dated: 23 24 Y parse ENLOE MEDICAL 26 27 28 01366509.WPD 5) DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY OF ENLOE'S CIES COMPLIANCE WITH CDPH PLAN OF CORRECTION AND CDPH'S FINDING OF NO DEFICIEN EXHIBIT A State of California-Health and Human Services Agency oa? ae eH California Department of Public Health = % el CBPH a o 3 GAVIN NEWSON TOMAS J. ARAGON, M.0., D1.P.H Governor Oirector und State Public Hesith Otficer February 23, 2021 Letter 4 IMPORTANT NOTICE - PLEASE READ CAREFULLY Mike Wiltermood, Administrator Enloe Medical Center 1531 Esplanade Chico, CA 95926-3310 Dear Administrator: dent survey for entity reported inci On February 3, 2021, an abbreviated sta ndard ment of Publ ic no. CA00656338 was conducted at your fa cilily by the California Depart ity te Agency), to de termine if your facil Health, Licensing and Certification Program (Sta rements for nursing homes was in compliance with federal participation requi programs. participating in the Medicare and/or Medicaid aid S ervices (CMS) form, entitled The enclosed Centers for Medicare and Medic thal no Correction” ( CMS-2567), documents “Statement of Deficiencies and Plan of visit. Plea se sign, deficiencies of participation requir ements were iden! tified during this ess below) by Marc h 9, 2021 . date, and return this form to our 0 ffice (see addr NOTE: Providers registered to participat e in the ASPEN Web: Electronic Plan of ents made in the CMS ~ 2567 and Correction (ePOC) application must revi ew the comm owledged, the deficiency-free select the “acknowledge SOD" function. Once ackn survey's POC status changes to closed. Th e “Altestalion of POC Submittal Terms and a hard copy signature is not Conditions” will serve as an electronic signal lure: therefore, required. please contact If you have questions concerning the instructions contained in this letter, Susan McBride, RN, Health Facilities Evaluator Supervisor, at 530-895-6711. Sincerely. pp. Joanne Gilchrist, RN District Manager paca CMS-2567 . Cali inia Department of Public Health Licensing and Centification,Chico District Office 126 tvlisston Ranch Bivd., Gico, CA 95926 (530) 895-6711 Internat Address: www cdph.ca.qov PRINTED: 02/07/2021 FORM APPROVED Califomia Department of Public Health (Xt) PROVIDER/SUPPLIERICLIA 1X2) MULTIPLE CONSTRUCTION DATE ‘STATEMENT OF DEFICIENCIES ‘COMPLETED AND PLAN OF CORRECTION IDENTIFICATION NUMBER: A. BUILDING: A230000013 8, WING 02/03/2021 NAME OF PROVIDER OR SUPPLIER STREET ADDRESS, CITY. STATE, ZIP CODE 4531 ESPLANADE ENLOE MEDICAL CENTER CHICO, CA 95926 aeTAG ‘SUMMARY STATEMENT OF DEFICIENCIES EACH DEFICIENCY MUST BE PRECEDEO BY FULL REGULATORY OR LSC IDENTIFYING INFORMATION) PREFIX TAG PROVIDER'S PLAN OF CORRECTION BE (EACH CORRECTIVE ACTION SHOULOPRUTE (CROSS-REFERENCED TO THE APPRO DEFICIENCY) E 000) Initial Comments £000 : The following reflects the findings of the California : Department of Public Health during an * Investigation of a facility reported incident. Facllity reported Incident: 656338 ; The Inspection was limited to the specific facility ' reported incident investigated and does no | represent the findings of a full inspection of the + facility. Representing the Department: 39942, Health | Facllities Evaluator Nurse (HFEN) j No deficiencies were issued for facility reported : incident 656338. Ucensing and Ceriification Dinston TITLE (6%8) DATE, PROVIDERVSUPPLIER REPRESENTATIVE'S SIGNATURE ° LABORATORY OIRECTOR'S, 4 ol. ced ~Mhenl/ Dee} Wcontinvation shodt 1 of 1 STATE FORM aan QiT714 PRINTED: 02/07/2021 FORM APPROVED Califomia Department of Public Health (X3) DATE SURVEY ‘STATEMENT OF DEFICIENCIES {K1) PROVIDETUSUPPLIERICLIA (K2) MULTIPLE CONSTRUCTION: COMPLETED AND PLAN OF CORRECTION IDENTIFICATION NUMBER: A. BUILOING: WING 02/03/2021 CA230000013 NAME OF PROVIDER OR SUPPLIER STREET ADDRESS, CITY. STATE, ZIP CODE 1531 ESPLANADE ENLOE MEDICAL CENTER CHICO, CA 95926 PROVIDER'S PLAN OF CORRECTION COMPLETE, 1 ‘SUMMARY STATEMENT OF DEFICIENCIES CORRECTIVE ACTION SHOULD BE ‘OATE pREEIK EACH Paar ' {EACH DEFICIENCY MUST BE PRECEDED BY FULL GROS S-RE FERENCED TO THE APPROPRIATE | REGULATORY OR LSC IDENTIFYING INFORMATION} TAG EFICIENCY) A ood Initial Comments A000 |i i i Ao01 ‘A oot] informed Adverse Event Notification Health and Safety Code Section 1279.1 (c), ' "The facllity shall Inform the patlent or the party responsible for the patient of the adverse event by the time the report is made.” The CDPH verified that the facility informed the + patient or the party responsible for the patient of \ the adverse event by the time the report was ! made. 1 Ucensing ad Certification Olvision TITLE (6) DATE * LABORATORY DIRECTOR'S GR PROVIO! \ER/SUPPLIER REPRESENTATIVE'S SIGNATURE a tf continuation shee! 1c! 1 STATE FORM Qi Proof of Service by Electronic Transmission - Civil [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules 10.503, 2.100-2.119, 2.251] I, Kimberly A. Powers, declare: At the time of service, | was over 18 years of age and not a party to this action. My business address is: 400 University Avenue, Sacramento, California 95825. On July 7, 2021, I served the following documents: DEFENDANT ENLOE MEDICAL CENTER'S BRIEF REGARDING ADMISSIBILITY OF ENLOE'S COMPLIANCE WITH CDPH PLAN OF CORRECTION AND CDPH'S FINDING OF 10 NO DEFICIENCIES 11 By e-mail or electronic transmission: Based on a court order or an agreement to accept service by e-mail or electronic transmission, | caused the 12 of the parties documents to be sent to the persons at the e-mail addresses listed below. | did not 13 14 receive, within a reasonable time after the transmission, any electronic message or other 15 indication that the transmission was unsuccessful. 16 Attorney Representing Phone/Fax/E-Mail 17 Sean R. Laird Plaintiffs PHONE: 916-441-1636 The Law Firm of Sean R. Laird FAX: 916-760-9002 18 805 16" Street EMAIL: Sacramento, CA 95814 eanlairdlaw@gmail.com 19 20 I declare under penalty of perjury, under the laws of the State of California, that the 21 foregoing is true and correct, and that this declaration was executed on July 7, 2021, at 22 Sacramento, California. 23 24 himberly A. Pow¢rs 25 1579-12195 26 27 28