By: Sezen Z. Oygar
Neil, Dymott, Frank, McFall & Trexler APLC
San Diego, CA
If you havent experienced it yet, the chances are, you will. Whether you represent a skilled nursing facility or other health care provider, defending a case premised upon the violation of the Patients Bill of Rights just became a little more complicated; and even sweeter for plaintiffs. Section 1430(b), California Health & Safety Code, permits current or former residents of skilled nursing facilities, or intermediate care facilities, to bring civil actions against the licensee of a facility who violates any right of a resident. The most common suit involves a violation of the Patients Bill of Rights, but can also include a violation of any other right provided by federal or state law or regulation. The rights of California patients are typically found in Title 22 of the California Code of Regulations, the California Health and Safety Code, or the California Welfare Institutions Code. Patients Federal rights are typically found in Title 42 United States Code or Title 42 Code of Federal Regulations. Further, with no contrary statutory law, the right to an action pursuant to section 1430(b) survives the death of the patient or resident.[1] With a countless number of rights held in the palm of a patients hand, nursing home residents now have a new and successful weapon in California courts: Carte blanche statutory interpretation of Section 1430(b) Health & Safety Code.
Section 1430(b) carries multiple weapons. Not only does section 1430(b) provide civil action for a violation of rights, but it also carries a very big carrot at the end of a daunting stick: injunctive relief, fines, attorney fees and costs. From a licensees perspective there is no carrot; its just a very expensive stick. First, liability is strict in that plaintiffs do not have to prove injury or actual damages. Second, the plain language of the statute expressly designates vicarious liability. Third, injunctive relief is expressly provided. Fourth, waivers of residents rights to sue are contrary to public policy and will be deemed void. Finally, if a resident can prove a violation of rights, fines and attorneys fees are expressly provided for. Here is the kink: Section 1430(b), which imposes liability on a licensee for the acts of its employees, states in pertinent part [t]he licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue. From the plain language of the statute, one would logically conclude the licensee, if liable, would be subject to a flat fee of $500, plus attorney fees and costs. Unfortunately, this is where the interpretations vary and there is little to no case law to serve as guidance. Rather plaintiffs are supporting their position in a carte blanche manner. In various cases, plaintiffs have argued the $500 fee is not merely a single fee. Rather, plaintiffs have argued they are entitled to $500 per day, per violation. Plaintiffs argue the clear intent behind the statute (and senate bill 1930 which inevitably became section 1430(b)) was to protect and ensure the rights of nursing home residents, raise the quality of care and increase residents safety by protecting their personal and private rights. While no one would argue patients rights are not inherently important, a carte blanche approach to section 1430(b) seems unduly harsh, particularly from a strict constructionist point of view.
To further complicate matters, 1430(b) actions are typically one of multiple causes of action. Other causes of action typically joined are Elder and Dependent Abuse, Unfair Business Practices, Battery, Negligence, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Fraud, Fiduciary Abuse, and Constructive Fraud. Further, in an attempt to increase their per violation pay out, plaintiffs are encouraged to list as many rights violations as possible to support their 1430(b) cause of action. With an onslaught of causes of actions, one can assume attorney fees, should they be awarded, will be high.
What can Defendants do?
In light of recent successes by plaintiffs who were awarded as much as $305,000 pursuant to 1430(b), what are defendants options? First if the facts of the case allow, counsel should consider serving Code of Civil Procedure, section 998 offer for $500.01 for each violation. Should the plaintiff reject the offer and receive a defense verdict, plaintiff is prohibited from recovery of all fees and must pay the prevailing defendants costs from the time of the offer.
To counter the view that section 1430(b) allows for a $500 fine per violation, per day, it seems that a defendants best argument is statutory interpretation. The question of a $500 fee per violation, per day is best addressed by the plain meaning of the statute. In dealing with the question of statutory interpretation, courts attempt to discern the Legislatures intent with caution as to give the statutes words their plain common sense meaning.[2] Plaintiffs argue the $500 fee is per violation and per day, yet no where on the face of the statute can one find the words per violation or per day. Further, in 2004 the California Legislature proposed an amendment to section 1430(b) to increase the $500 fee. The Legislature proposed an increase from $500 to $5,000. Ultimately the increase was not enacted into law, representing the Legislatures intent to maintain a reasonable limit on the fee. The Legislature did amend the statute to allow former residents to bring a 1430(b) action and amended the statute to include violations for any state or federal right. Thus, while the Legislature broadened who could assert a 1430(b) action and what rights would fall under a 1430(b) action, the monetary cap remained the same. Accordingly, based on the plain meaning and a strict constructionist interpretation of the statute, there is no wiggle room to allow residents to recover $500 per violation, per day.
As these matters work their way into our court system, only time will tell how the California courts will weigh the varying interpretations.
Sezen Z. Oygar is an associate in the San Diego office of Neil, Dymott, Frank, McFall & Trexler. Her practice areas include healthcare and professional liability litigation.
For more information on Neil Dymott, visit the International Society of Primerus Law Firms or neildymott.com.
[1] Fitzhugh v. Granada Healthcare & Rehab. Ctr. (2007) 150 Cal.App.4th 469, 474.
[2] Ste. Marie v. Riverside County Regional Park & Open-Space Dist. (2009) 46 Cal.4th 282, 288.