Proposed federal legislation attacks California's elder abuse and dependent adult law

With this incoming Administration, I became concerned that we would focus on Trump's antics and the fact that Kellyanne Conway was sitting on a couch in the Oval Office with her legs folded underneath her.  Meanwhile, the House has been busy stripping away our rights.  To address a new bill, H.R. 1215, I asked Kim Valentine, one of our top elder abuse attorneys, to share her my concerns, which should be yours as well.  She told me that a very important law in California is quietly under attack, a law that is designed to protect our vulnerable elders and disabled adults.  Here is what she wrote: 

In 1991, the California Legislature declared elderly and dependent adults were at a greater risk of abuse, neglect or abandonment.  California has a responsibility to protect these vulnerable individuals. For these reasons, California enacted the Elder Abuse and Dependent Adult Civil Protection Act ("EADACPA") to make it financially feasible for civil cases to be brought against nursing home operators for fraudulent and bad acts that harm vulnerable people.  Facts uncovered in these civil cases have been used by public prosecutors to recover millions in fines for billing fraud against large corporate operators of nursing homes. (See, e.g., “Life Care Centers of America Inc. Agrees to Pay $145 Million...” https://www.justice.gov/opa/pr/life-care-centers-america-inc-agrees-pay-145-million-resolve-false-claims-act-allegations; “Nursing Home Operator to Pay $48 Million...” https://www.justice.gov/opa/pr/nursing-home-operator-pay-48-million-resolve-allegations-six-california-facilities-billed.) 

Within the next week, proposed federal legislation known as the “Protecting Access to Care Act of 2017,” (H.R. 1215 - https://www.congress.gov/bill/115th-congress/house-bill/1215/text) is likely to be discussed on the floor of the House of Representatives.  If approved, the bill will then go to the Senate floor. The proposed legislation puts financial caps on all medical negligence cases in the United States. (For 40 years, California has had a cap on medical malpractice cases, but it has done little, if anything, to fix healthcare in this state.) 

Hidden within H.R. 1215 is language that will expand - not just the damage caps nationwide - but will gut elder abuse litigation across the United States.  Claims against nursing homes will be covered under this new law. (See "Definitions.") Elder Abuse cases against large corporate chains are notoriously expensive.  It typically costs hundreds of thousands of dollars to prove those large operators are committing fraud.  If H.R. 1215 is enacted, elder abuse cases will no longer be economically feasible.  Here are just a few examples of past situations: 

• A nursing home illegally “dumped” a blind and oxygen-dependent resident at a motel with a package of ramen noodles and a non-functioning oxygen tank. Within three days, he is dead from a lack of oxygen.
•  An 88-year-old stroke sufferer is raped by nursing home worker and contracts genital herpes http://www.cnn.com/interactive/2017/02/health/nursing-home-sex-abuse-investigation/
•  An 80-year-old unattended dementia patient walked out of a locked dementia unit, through the streets and parking lots before she was struck by a truck and died as the result of blunt force trauma. 

         Enactment of H.R. 1215, as currently written, with the inclusion of nursing homes, will leave America’s elderly and disabled population susceptible to increasing abuse, neglect, assault and rape with no recourse. Abusive and neglectful nursing homes will be left to operate without fear of reprisal or liability.  Without laws in place to protect their victims, nursing homes will have no financial incentive to provide adequate care.  Any speculative fiscal savings promised by H.R. 1215 will be greatly outweighed by the increase in government costs for taking care of the vulnerable and infirm. 

             To avoid this result, please contact your representatives and tell them you stand on the side of the elderly and disabled.  Demand they vote against H.R. 1215. Find your congressperson here, http://www.house.gov/representatives/find/, and contact Senator Kamala Harris at (202) 224-3553, and Senator Diane Feinstein at (202) 224-3841. Call today and let your voice be heard!

Ms. Valentine has dedicated her career in the practice of law to advocating for the vulnerable, the injured and the infirm. Her focus is to ensure that individuals are not needlessly taken advantage of or exposed to unnecessary harm. Her clients ages span from newborn children to elderly as old as 104. She practices in the areas of elder abuse, medical malpractice, products liability, serious personal injury, and government tort claims litigation.

An Appeal to Reason

When I picked the title of my blog, An Appeal to Reason, I thought it was a clever title.  It had the word "appeal" in it to describe the type of work I do, but it also focused on the process that one uses to write a brief. Looking back, the title was not particularly descriptive of the purpose of the blog, which was to advise trial attorneys on how to preserve their cases for appeal. Over time, I found that many of my clients were reading the blog to get a sense of who I was. They were not interested in my tips; they were laypeople looking for some justice.

As we enter 2017, I feel that providing tips to trial attorneys seems so insignificant, although I am hopeful that trial attorneys will get involved in the fight. We are facing so many potential catastrophes from climate change, droughts, lack of clean water, refugees reshaping the world, wars on everything from drugs to women's reproductive rights, that publishing tips to a small group of people has little interest for me now.  

But the title An Appeal to Reason is significant. I want to appeal to reason and hope that we can turn around this growing tidal wave of hate, racism and discrimination. We fought so hard as a country to give people fundamental rights, such as voting and making choices about their future, that I am not willing to go back to the Dark Ages when being different was a death sentence. And women were controlled by men. And religious freedom means freedom only when you believe what I believe. I look at our progress and I just cannot go back.  

Ever since it was announced that Trump had been elected, many of us have depressed. This is not the world we want. (I suppose I can't speak for everyone, but the people I talk to agree.) So, now is the time to speak out.  If we don't vote, if we don't speak out, we deserve what we get. The question is: do we deserve Trump? 

Supreme Court abolishes automatic depublication rule

For many years, we have operated under the rule that when the California Supreme Court grants a petition for review, the decision by the Court of Appeal can no longer be cited as valid law. A new rule, which took effect on July 1, 2016, changes the rule of automatic depublication. Pursuant to California Rules of Court, rule 8.1150(e)(1)(B), the “Grant of review by the Supreme Court of a decision by the Court of Appeal does not affect the appellate court’s certification of the opinion for full or partial publication.” The Court of Appeal opinion will be citable while the Supreme Court case is pending.  However, the published opinion will have “no binding or precedential effect, and may be cited for potentially persuasive value only.” (Cal. Rules of Court, rule 8.1150(e).) The Supreme Court still retains the power to order publication or to “order depublication of part of an opinion at any time after granting review.” (Cal. Rules of Court, rule 8.1105(e)(2).) After review by the Supreme Court, the Court of Appeal’s opinion can be cited unless the Supreme Court orders otherwise and “has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.”  When citing an opinion that is pending review, the citation should note that review has been granted as well as any subsequent action by the Supreme Court. The Supreme Court intends to revisit this rule in three years to determine the practical effects of the rule and whether to continue it.

-- 

My New Book – How to Find and Keep a Good Attorney - is Out!

For many months I have been working on a new book, How to Find and Keep a Good Lawyer, which I decided to release through Bench Press Publishing as a mini-ebook. I also decided to release the book first through Amazon’s Kindle Direct Publishing platform. You can now purchase the book exclusively through Amazon by following this link:https://goo.gl/eEUAHv  

Why did I write this book? My main area of specialty is that of an appellate attorney, which means that I often get involved at the tail end of a case, not its beginning. So, it is unlikely that the book would produce many new clients for me. 

Basically, here is why I wrote this book:  as an appellate attorney, I am often consulted once the case has been tried. That means the client has already used and relied on the services of a trial lawyer. But my job requires me to analyze what happened at the trial below. Mistakes are often made by everybody and some do not justify reversal of the trial court’s judgment. Some of those mistakes involve choices of strategy and can’t be addressed by an appeal. 

What I observed and heard from clients after over 38 years of experience is how their trial attorney handled their case. Most people are aware that going to trial is not a “sure thing” and they take their chances. But they want a fair chance or a trial on the merits. Sometimes that doesn’t happen because of their choice of attorneys and the choices or strategy the attorney employs. So, the choice of an attorney is of fundamental importance (and we all understand that after watching People v. O.J. Simpson) and can seriously affect a litigant’s chances of success.

In Honor of William Kopeny

 In a world that has grown increasingly violent, I have become accustomed to hearing reports of tragic, painful deaths. (The morning news about the shooting in Orlando, Florida is just another example.) When one dies peacefully in his or her sleep, we celebrate the death as a “good” death.  We are saddened nonetheless because a loss is still a loss. We just don’t want our loved ones to suffer.  

It is with great sadness that I mourn the loss of William Kopeny, a fellow appellate attorney. I knew Bill for many years, but we didn’t know each other that well.  I had only one appeal again him. During the course of the appeal, I would joke with Bill that we were both so damned polite, how could we get anything done because we would each implore the other to go first. 

I mourn Bill, not for the time I spent with him, but because the world was a better place with him in it. He was a true gentleman and he really cared about people and his work. Civility is a problem in our profession, but it was never one with Bill. He was always polite. He could teach a lot of attorneys some lessons in civility.

I am sure that Bill’s kindness started with his family and friends. I am happy that I experienced it personally. Death may have come quickly and quietly for Bill, but we still feel the loss of a fine man.  But we will always celebrate his life and our memories of him.