Elder Care Alert: Dept. of Public Health Citations Inadmissible as Evidence Against Nursing Home in Elder Abuse Case

In Nevarrez v. San Marino Skilled Nursing and Wellness Centre, et al., 2013 WL 2436633, plaintiff, Samuel Nevarrez, sued the owner and management company of a skilled nursing facility, for elder abuse, negligence and violations of Health & Safety Code. Plaintiff had multiple falls while residing at the nursing home, one of which resulted in him hitting his head and having to undergo brain surgery.

As a result of the fall, the Department of Public Health (DPH) conducted an investigation and a DPH investigator issued a class A citation and a statement of deficiencies. The citation included the nursing home’s plan of correction, as well as the investigator’s review of Nevarrez’s records, three staff declarations, and an exit interview with the facility’s administrator. It also included the investigator’s conclusion that the fall could have been averted had staff responded to Nevarrez’s alarm sooner. San Marino appealed the citation and it was not yet final at the time of trial.

Before trial, Nevarrez filed a pre-trial motion to have the citation admitted into evidence, arguing it was admissible to establish negligence per se under Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233 (Norman), and it fell within the exception to the hearsay rule for official records in Evidence Code §1280. The trial court granted Nevarrez’s motion. At trial, the citation was referenced repeatedly during the examination of various witnesses, and was the cornerstone of the closing argument by plaintiff’s counsel. The jury returned a verdict for plaintiff on all three causes of action. Defendants appealed on the ground that the admission of the citation was prejudicial.

The appellate found that the trial court abused its discretion in admitting the citation and statement of deficiencies into evidence. The appellate court reasoned that the trial court’s reliance on Norman was misplaced because Norman simply held the trial court in that case erred in refusing to give a negligence per se instruction when that instruction was supported by an investigator’s testimony that he found the defendant nursing home had violated certain regulations. Norman did not address the admissibility of the citation.

The appellate court further held that the citation was not admissible under Evidence Code §1280 because the citation relied on sources other than the investigator’s personal observation. It also held that there was no justification for not ordering the plan of corrections redacted since it is inadmissible under Health and Safety Code §1280(f) and is a remedial measure under Evidence Code §1151. As to the investigator’s opinions and conclusions, the appellate court found that it should not have been admitted as it was an improper legal conclusion and interfered with the jury’s function as a fact finder.

The appellate court also noted that the admission of the class A citation was inadmissible in this instance under Evidence Code §352 because it created undue prejudice to defendants by insinuating that appellants must be liable because the state issued a citation against the nursing home.

This ruling addresses an issue that has been a subject of debate in almost every negligence and elder abuse case where citations are involved. It is a favorable ruling for long-term care providers and can hopefully be used to eliminate the prejudice which results from citations being admitted into evidence.

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June 7, 2013