Jarman: A nightmare year for nursing home residents gets worse

Please forgive California nursing home residents if they have already begun their countdown to New Year's Day 2021. Last March, federal, state, and local governments imposed a near-complete ban on visitation between residents and their families to stop coronavirus infections. It hasn't worked. Approximately one out of every 25 nursing home beds in California has been occupied by a resident killed by COVID-19 so far in 2020. Added to this mix of isolation and misery, on August 17, the California Supreme Court ruled in Jarman v. HCR Manorcare, 2020 DJDAR 8895, that residents whose rights are violated may only recover a paltry $500 via civil litigation, regardless of how many rights are violated and how often.

Health and Safety Code Section 1430(b) provides residents with the ability to sue their nursing home if any of their federal or state rights are violated. The statute's remedy portion states the nursing home "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." Initially, the prospect of a $500 recovery did not inspire much resident rights litigation and 1430(b) essentially laid dormant for 20 years after its passage in 1982.

In the early 2000s, as public enforcement of nursing home resident rights worsened, the use of 1430(b) began to gain momentum. One big reason for the momentum was the willingness of trial courts to grant damages per violation. In 2010, a Humboldt County jury awarded $677 million against the Skilled Healthcare nursing home chain for chronic understaffing at 22 nursing homes, assigning $500 damages, per day, for every resident who was subjected to the chain's failure to meet the state's daily minimum staffing requirement. Section 1430(b) had begun to fulfill its promise of empowering residents to enforce the rights meant to protect them from harm and indignity.

In 2013, 1430(b) was dealt a blow by Nevarrez v. San Marino Skilled Nursing, 221 Cal. App. 4th 102 (2013). In Nevarrez, the 2nd District ruled that the $500 damages available in 1430(b) were the maximum a plaintiff could receive in a lawsuit, regardless of the number of violations they suffered. The Nevarrez opinion was contradicted in the 4th District's Jarman opinion in 2017 (9 Cal. App. 5th 807). That court held that the $500 damages for residents apply per cause of action, not per lawsuit.

With the split in authority, the Supreme Court granted review of Jarman. In a 5-2 decision, the court overruled the 4th District and found that the $500 statutory damages are a cap per lawsuit, not per rights violation. The majority opinion, written by Justice Ming Chin, found the language regarding the remedy unclear but, given related statutes that expressly refer to consequences for "each violation," 1430(b)'s failure to do so is noteworthy.

The majority then addressed the concern that preoccupied many justices during oral argument: the practical problems of determining what constitutes a violation when rights overlap and the difficulty distinguishing continuous versus separate violations. The lack of explication in the statute as to how to calculate discrete rights violations was viewed as evidence the Legislature did not intend 1430(b)'s $500 damages to apply separately to each right violated.

More evidence of 1430(b)'s limited scope of damages was that it addresses nonharmful "class C" resident rights violations which, at $500 per violation, would be worth more than the $250 available (in 1982, when 1430(b) was adopted) in damages for more serious "class B" violations available through Section 1430(a). Certainly, the Legislature did not intend the anomalous result of greater awards for lesser harms.

Finally, the majority found that "policy arguments" weigh in favor of a $500 cap per lawsuit because the attorney fees, costs and injunctive relief remedies in 1430(b) are "abundant" disincentives preventing nursing homes from violating the rights of their residents. Additionally, residents are free to bring other tort claims such as the Elder and Dependent Adult Civil Protection Act to better compensate victimized residents.

The dissenting opinion of Justice Mariano-Florentino Cuéllar began by referencing the horrible recent news coming from nursing homes to emphasize the extreme vulnerability of residents and why 1430(b)'s clear purpose of deterring rights violations can only be satisfied when damages are apportioned for each violation. Limiting residents to $500 per lawsuit is an interpretation that strays too far from that purpose. To the dissenters, 1430(b) only makes sense if the $500 is available for each rights violation; otherwise, offending nursing homes can simply buy the right to violate a resident's rights for a mere $500 and nominal attorney fees.

The dissent took issue with the idea that injunctions, attorney fees, and other tort claims would adequately protect residents from rights violations. If these remedies were sufficient to protect resident rights, the legislature would not have bothered with a de minimis $500 damages award. Without damages proportionate to wrongdoing, the per lawsuit cap renders the $500 damages "useless."

The end of the dissent explains how other remedial statutes with ambiguous language are clarified by courts and judicial reasoning. The dissent essentially accuses the majority of shirking any line drawing on what constitutes a rights violation because it is too complicated, to the significant detriment of nursing home residents.

The Jarman ruling and dissent highlight a significant disagreement about the most sensible interpretation of Section 1430(b). The majority felt the statute made most sense with a $500 cap and was unwilling to exert itself in favor of nursing home residents. The dissent felt otherwise, stating the $500 cap rendered 1430(b) "almost purely symbolic, sounding in the key of a faint whimper rather than a remedy."

Given the state's woeful performance safeguarding residents' rights, 1430(b) litigation has been their best means for protection. The Jarman decision changes that, inviting nursing homes to ignore resident rights even more than they have been. Residents can still seek an injunction that will stop illegal conduct but injunctive relief will not make them whole or deter future bad conduct. The Supreme Court has wrecked 1430(b) as an instrument of justice. For nursing home residents and the people who care about them, 2020 cannot end soon enough. 