Ten residents claim elder abuse and neglect at nursing home. $13.5M. Alameda County.

Summary

Operator of Bay Area nursing home is found liable for multiple injuries and deaths owing to elder abuse and neglect.

The Case

Case Name: Ledesma, et al. v. Mariner Health Care, Inc., et al.
Court and Case Number: Alameda County Superior Court / RG19025110
Date of Verdict or Judgment: Thursday, October 14, 2021
Type of Case: Elder Abuse, Negligence
Plaintiffs:
Elders: J.R. Ledesma (deceased at age 80), James Cearley, Jr. (age 75), Frances McCalope (age 74), Jacqueline Rice (deceased at 70), Jose Sanchez (deceased at 72); John Seelig (age 85), Louie Sira (deceased at 67), and Russell Taylor (deceased at 70). Dependent Adults: Feleai Brown Ah-Hing (age 58) and Chanova Wilson (age 45).
Defendants:
Parkview Operating Company, LP
Mariner Health Central, Inc.

The Result

Gross Verdict or Award: $13,500,000 ($4.6 million in compensatory and wrongful death damages $8.9 million in punitive damages.)
Award as to each Defendant:
Jury polls:

Phase 1: Unanimous that Mariner had a caretaking or custodial relationship of the 10 residents.

Phase 2: Unanimous verdicts of violation of residents’ rights with fraud for all 10; mostly unanimous verdicts of elder abuse and neglect with recklessness and fraud for Ah-Hing, Cearley, Ledesma, McCalope, Rice, Sanchez, Seelig and Sira, negligence for the living residents, and wrongful death of Ledesma and Sira by negligence and neglect with malice and fraud; verdicts of no elder abuse for Taylor and Wilson; and verdict of negligence for Wilson.

Phase 3: Unanimous findings for wrongful death and punitive damages for all 10.
Contributory/Comparative Negligence: Liability: 60% Mariner Health Central, Inc. (“Mariner”); 40% Parkview Operating Company, LP (“Parkview”). Punitive Damages: 70% Mariner; 30% Parkview based on amount awarded against each.
Economic Damages:
Violation of residents’ rights: maximum amount under Cal. Health & Safety Code § 1430(b) of $500 for each elder and dependent adult.

Survival damages for elder abuse: Ledesma $572,500; Rice $280,000; Sanchez $415,000; and Sira $885,000.

Dependent adult and elder abuse and neglect and/or negligence damages for Ah-Hing $220,000 (includes $20,000 future); Cearley $485,000; McCalope $437,500 (includes $20,000 future); Seelig $212,500 and Wilson $360,000.

Wrongful death for Ledesma heirs $357,532.58; and Sira heirs $353,077.50.
Punitive Damages:
2.5 times the eight Phase 2 neglect verdicts as follows: Ledesma $1,431,250; Ah-Hing $550,000; Cearley $1,212,500; McCalope $1,093,750; Rice $700,000; Sanchez $1,037,500; Seelig $531,250; and Sira $2,212,500; and $80,000 for violation of Wilson’s rights and $20,000 for violation of Taylor’s rights.
Trial or Arbitration Time: Phase 1: 7 1/2 days; Phase 2: 26 days; Phase 3: 3 1/2 days.
Jury Deliberation Time: Phase 1: Under 2 hours; Phase 2: 3 weeks; Phase 3: Over 4 days.
Jury Polls: See Additional Notes (below).
Post Trial Motions & Post-Verdict Settlements: With the elder abuse and neglect enhanced remedy findings of recklessness and violation of residents’ rights, plaintiffs will be filing a post-judgment motion for attorneys’ fees and costs.

The Attorneys

Attorney for the Plaintiff:
Law Office of Susan Kang Gordon by Susan Kang Gordon, Orinda.

Fiore Achermann, ALC by Jennifer Fiore, San Francisco.

Johnson Moore by Jody Moore, Thousand Oaks.
Attorney for the Defendant:
Mariner Health Care by Darryl Ross, Mission Viejo.

Lewis Brisbois Bisgaard & Smith LLP by Bryan Reid, San Bernardino.

The Experts

Plaintiff’s Medical Expert(s):
Kathryn Locatell, M.D., geriatrics.

Christopher Cherney, standard of care.

Pamela Sharkey, RN, standard of care.
Defendant's Medical Expert(s):
Walter Hekimian, standard of care.

Susan Acquisto, DNP, standard of care.

Karen Josephson, M.D., geriatrics.

Gary Steinke, M.D., geriatrics.

James E. Spar, M.D., psychotropic medications.
Plaintiff's Technical Expert(s):
Jamie Mills, economics.

Ernest Tosh, Esq., staffing.

Facts and Background

Facts and Background:
Ten nursing home Parkview Healthcare Center residents brought claims for violation of their resident rights, elder abuse and neglect and negligence against the facility licensee,Parkview Operating Company, LP, and the related management company, Mariner. The violations allegedly occurred between 2017 and early 2021.
Plaintiff's Contentions:
That the evidence showed chronic understaffing that resulted in harm to the residents and violations of their rights.

Plaintiffs contended that Mariner in fact operated the facility as it controlled the policies, people and the profits.
Defendant's Contentions:
That plaintiffs were old and sick, which had nothing to do with neglect; they were experiencing "natural progressions" of life.

That lack of documentation didn't mean the care was not provided. That residents refused care, including wound care. That residents consented to the psychotropic drugs they were given.

That good care was provided at all times and defendants never deviated from the standards of care.

Injuries and Other Damages

Physical Injuries claimed by Plaintiff:
In addition to violations of their resident rights, the main claims of elder abuse and neglect and/or negligence of the 10 were:

Ah-Hing – malnutrition while on feeding tube and being weaned off, and pressure ulcers;

Cearley – 43 falls, 16th fall with hip fracture, and improper use of psychotropic medication;

Ledesma – 16 falls, last one with hip fracture and malnutrition with failure to thrive, leading to death;

McCalope – poor hygiene/incontinence care, failure to shower and pressure ulcers;

Rice – poor hygiene, failure to shower, pressures ulcers and assault;

Sanchez – wounds and improper use of psychotropic medications;

Seelig – at least 17 falls; last one in January 2021 with closed head injury, and improper use of psychotropic medications;

Sira – wound on heel that became gangrenous and required above-the-knee amputation, leading to death;

Taylor – lower leg wound; and

Wilson – sexual assaults by another resident and being left outside, suffering hypothermia.

Most of the 10 also suffered from scabies multiple times due to inadequate infection-control measures and recurring outbreaks.

Additional Notes

Insurer: Ascot and Hudson

All settlement offers were made confidentially.

Trial by Zoom of preference case for three elders and one dependent adult; preference motion was granted in January 2021, after being first brought in 2020.

Jose Sanchez, Jacqueline Rice and Russell Taylor died in 2020 while their cases were pending (some due to COVID).

The trial started May 18, 2021, with over 40 motions in limine and 402 hearings.

Defendants’ motion to bifurcate was granted in part, and the Court ordered 4 phases of trial: (1) whether Mariner had care or custody of the Plaintiffs in order to be liable for elder neglect; (2) liability for violation of residents’ rights, elder abuse and neglect, and negligence, and whether Defendants engaged in malice, oppression or fraud; (3) amount of punitive damages; and (4) wrongful death damages. The last two phases were combined.