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The state of California is selling the Ronald Reagan State Building at Third and Spring streets as part of an effort to make up a $21 billion deficit. <i>Photo by Gary Leonard.</i>
A California Court of Appeal was in the news recently for a case it decided last year which drastically reduced the recovery of damages against abusive nursing homes. Decided by a panel of three justices sitting in Los Angeles (and left intact by the California Supreme Court), the decision in Nevarrez v. San Marino Skilled Nursing and Wellness Centre, if taken to its logical conclusion, would limit attorneys' fees awards as well and, therefore, the availability of remedies to elderly patients who are injured by abusive nursing home practices.

For more, click past the orange squiggle of corporate health care.

At issue in Nevarrez was how to interpret the $500 limit on damages against a skilled nursing facility established by California Health and Safety Code section 1430(b).

The California Legislature enacted Health and Safety Code section 1430 in 1973; in 1982 it added section (b) to create a private right of action for any patient injured by a violation of the California Patient's Bill of Rights as set forth in Section 72527 of Title 22 of the California Code of Regulations. Section (b) also authorizes a court to enjoin, or stop, the practices leading to each violation. Finally, it also limits the patient's damages to $500 and makes the nursing home pay the patient's attorney's fees.

Because the statutory language talks in terms of each violation, it was always assumed that the $500 limit was a limit for each violation proven. That all changed with Nevarrez. The Nevarrez court refused to read "per violation" into the $500 limit and turned the custom and practice of assessing penalties per violation against the patient.

When subdivision (b) was added to section 1430, administrative penalties were expressly to be assessed ―for each and every violation. The absence of this phrase from subdivision (b) supports the inference that the phrase was intentionally left out of that subdivision, especially in light of the regularity with which it appears in penalty provisions throughout the Health and Safety Code.

Accordingly, the court reduced the statutory award from $7,000 (for 14 violations) to $500.

Why this Matters
Now that corporations are truly people and continue to take over American health care, we are wise to protect those methods that hold the profit motive in check against our most vulnerable Americans--those in long-term facilities hidden from view of the public. Abuses are rampant; just last month a Massachusetts jury awarded a woman $14 million dollars against a nursing home for repeated instances of abuse.

A difference of $6,500 may not seem that great in the scheme of things, but it is helpful to look at the entire picture of a negligence lawsuit. Typically each violation of the Patient's Bill of Rights also creates a medical malpractice cause of action, and lawyers usually sue for negligence as well. This is what the California Legislature intended when it passed Section 1430, making the nursing home pay for the injured patients' attorneys' fees which would not have been paid in the negligence arena.  (Without a provision for the lawyers to get paid, they simply cannot afford to help injured people. While many lawyers do take pro bono cases, there are not enough of them skilled in this area of law to help all the people at risk.) Of course, the Massachusetts verdict above was large enough to guarantee that the lawyers at Crowe and Mulvey would be paid, so the issue of attorneys' fees was never a question. But not every case is a multi-million dollar case, and victims whose injuries don't translate to money verdicts may not get the help they need.

The Nevarrez decision, if taken to its logical conclusion, would threaten the availability of lawyers to help these vulnerable people. Say a grandmother was injured in a fall because a nursing home repeatedly failed to protect her. While her injuries could be substantial to her in terms of the pain they cause her, they may not be sufficient legally to interest a contingency fee law firm in taking the negligence case for one third of those damages. The attorneys' fees award in Section 1430 allowed lawyers to take these cases, knowing that their fees for all the work on the negligence causes of action would be paid by the nursing home on the statutory side for each violation of the Patient Bill of Rights.

Under Nevarrez, there is arguably no longer a need to prove each violation, as one violation affords the maximum $500 allowed by the statute. Thus, lawyers who win these cases will now have a hard time justifying all the time they spent proving the negligence causes of action. Without a guarantee of attorneys' fees, lawyers will be hard-pressed to take righteous but unprofitable cases, and THAT would be a green light for corporations to neglect these vulnerable patients.

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