When you entrust a family member to the care of a facility, there’s an expectation of compassion and empathy to be given. Often times family members don’t have the time or resources to properly help care for their loved one full time, and you have to trust that the facility you choose can implement a care plan and take responsibility for your loved one. Many reputable nursing & care facilities seek to hire the best caretakers and have strict operating procedures in place to make sure your family member is getting the best care available and the attention that they need. However, ABC recently reported that nearly 30% of elderly residents at care facilities endure some sort of physical, emotional or financial abuse.

This news prompted us to seek comment from one of the Inland Empire’s premier injury litigators, Cory Weck of McCune Wright Arevalo, LLP in Ontario, who’s recently litigated two elder abuse cases involving care facilities.

InlandEmpireLawyers.com: How long have you worked as a personal injury lawyer?

Mr. Weck: I’ve been a lawyer for over 20 years, but I’ve practiced nothing but personal injury law on behalf of individuals for the past 15 years

InlandEmpireLawyers.com: What are the most common ways cases of caretaker abuse discovered?

Mr. Weck: Usually abuse is discovered when it’s too late and the consequences are irreversible.  Since the family often doesn't live in close proximity to the home where their loved one is located, it’s usually a call from the ER when they first become aware that something bad had occurred.

InlandEmpireLawyers.com: What are the alert signals that family members should look for, or be aware of that would indicate elder abuse?

Mr. Weck: Do you notice a significant change in your loved one’s demeanor?  Do you notice bruising?  Do you notice that they don’t seem to want to eat anymore?  Is there a lot of turnover in the staff? 

InlandEmpireLawyers.com: Are there any reporting agencies or resources people can use to research complaints against a facility or care taker?

Mr. Weck: Yes there are agencies both at the local level and the state level one can report complaints to against the facility like Adult Protective Services in San Bernardino or Riverside Counties.

InlandEmpireLawyers.com: What should someone do if they suspect that a loved one is being abused by someone at a care facility?

Mr. Weck: It really depends on the severity of the abuse.  For more minor type of complaints I would start with the facility management and then work up through the chain of command if your concerns are not addressed. For more serious events immediately file a complaint with your county agency and the state. If serious or deadly harm occurred I would advise seeking local counsel who has experience in these types of claims.

National Center on Elder Abuse: https://ncea.acl.gov/resources/state.html
National Center for State Courts: http://www.ncsc.org/Topics/Children-Families-and-Elders/Elder-Abuse/Resource-Guide.aspx

Photo Credit: https://pixabay.com/en/users/Unsplash-242387/

Whenever a trial date is set, a party may demand simultaneous exchange of expert witness information (Code of Civil Procedure § 2034.210).

If a party fails to comply with the exchange of expert witness information, and the other side objects, “the trial court shall exclude from evidence the expert opinion” of said witness. (Code of Civil Procedure § 2034.300)

The recent case of Perry v. Bakewell Hawthorne, LLC, (2017) Cal. Lexis 1351, raised a novel issue as it relates to the above sections. Perry was a personal injury matter wherein the plaintiff fell on defendant’s property. Defendant moved for summary judgment, which was set to be heard after the exchange of expert witness information.

In his opposition, plaintiff used the declarations of two experts to demonstrate that the stairs he fell on were in disrepair and did not comply with building code and industry standards. The problem was that neither of these two declarants had been identified in the expert witness information exchange.

The issue became whether the exclusionary rule of CCP § 2034.300 applied only to the use of those experts at trial or whether it also applied at the summary judgment stage.

Ultimately, the Supreme Court of California held looked to the Section governing motions for summary judgment – CCP § 437c. They held, Section 437c(d) requires that affidavits and declarations submitted in summary judgment proceedings “set forth admissible evidence.” They held that when the court determines an expert opinion is inadmissible because disclosure requirements were not met, the opinion must be excluded from consideration at summary judgment if an objection is raised.

In this matter, because the declarations attached to the opposition to motion for summary judgment were by two experts whom would be excluded from testifying at trial, their declarations were similarly inadmissible to refute the defendant’s motion for summary judgment.

Published By: Jean-Simon Serrano


Photo Credit: https://www.flickr.com/photos/surreynews/