Confidential

Facts

The plaintiff is Mary Schipull, a 91-year-old retired schoolteacher. The defendant is Imperial Park Senior Care
Community. In May 2004, plaintiff SchipullÆs daughter, Susan Calhoun, had to travel outside of California.
Calhoun could not take the plaintiff on her trip and no other family members were available to care for the
plaintiff. Calhoun chose the defendant to be the "care custodian," per the Welfare Institutions Code Section
15610.17(j), for the plaintiff from May 13 to May 26, 2004. The defendant presented itself as specializing in
elders with AlzheimerÆs disease.

On May 13, Calhoun took the plaintiff to the defendantÆs facility. She presented the then-administrator Vicki
Sobowits a check for $1,260 for the residential care of the plaintiff. Calhoun left the plaintiff with the defendant
following repeated assurances that the plaintiff would be well treated and cared for. The defendant employees
included Colette Lee, Vicki Sobowits and Vicki Kaiser.
On May 21, Calhoun called the defendant facility to see how the plaintiff was doing. Donna Hildreth, an
employee of the defendantÆs, answered the call. Hildreth did not say anything about the plaintiff, as the call
was taken over by defendant Sobowits. Defendant Sobowits assured Calhoun that the plaintiff was fine.
However, Calhoun was told that the plaintiff could not come to the telephone. Calhoun called the defendant
facility again the following day. She spoke the plaintiff. The plaintiff was crying and sounded low-spirited. She
could not express to Calhoun what was wrong. Calhoun dismissed it, thinking the plaintiff simply missed her.
She assumed the sad tone of the plaintiffÆs voice and her crying were not related to any other reason.
On May 26, Calhoun went to the defendant facility to pick up the plaintiff. Defendants Sobowits and Lee showed
Calhoun to the plaintiff. The plaintiff was in the AlzheimerÆs Unit. Defendants Sobowits and Lee informed
Calhoun for the first time that there had been an "incident" in defendant LeeÆs office. The plaintiff thought that
a male resident was the plaintiffÆs father. Thus, the plaintiff allegedly interfered with defendant LeeÆs services
toward the male resident. The plaintiff allegedly hit defendant Lee. Out of self-defense, defendant Lee
restrained the plaintiff. This caused bruising to the plaintiffÆs arms. Defendant Sobowits also told Calhoun that
a report was filed with authorities.
Believing the explanation, Calhoun took the plaintiff home. Later, Calhoun found the plaintiff to be suffering
from severe back pain. She also had extensive bruising on her arms. Further, the plaintiff was sad and
distraught. She was progressively unable to ambulate, make her bed or accomplish daily living activities on her
own. Before her stay at the defendant facility, the plaintiff was capable of accomplishing such activities.
Calhoun learned from three former employees of the defendant that on May 21 around 5:00 p.m., half an hour
before Calhoun called and spoke to Hildreth and defendant Sobowits, defendant Lee was angry with the
plaintiff for constantly entering defendant LeeÆs office. Defendant Lee had grabbed and twisted the plaintiffÆs
arms, then pulled her into the dining area. Defendant Lee had her hand up ready to hit the plaintiffÆs face and
called her a "bitch." She observed people witnessing this and pulled the plaintiff into the hallway. She then
violently pushed the plaintiff into a chair and used threats to keep her in the chair.
The three former employees reported the incident to their supervisor, defendant Sobowits. Defendant Kaiser also
knew of these events and was a friend of defendant Lee. None of the defendants made a report of the abuse to
any regulatory or law enforcement agency. Defendant Lee was allowed to continue at the defendant facility.
Further, none of the defendants did anything to help the plaintiff. * * *

The plaintiff claimed that the failure of the defendants to report the abuse was their express approval of the abuse.
Specifically, the plaintiff claimed that defendant La Mirada Associates, acting through and by its managing
agents, defendants Sobowits and Kaiser, approved of defendant LeeÆs assault and battery of the plaintiff when
they concealed it by failing to report it. Defendant La Miranda also failed to report it to the plaintiffÆs doctor
and attorney-in-fact and responsible family member; failed to obtain medical attention for the plaintiffÆs
injuries; lied to Calhoun about what happened and about filing a report with authorities; professed to perform
an internal investigation only, which purported to absolve defendant Lee; permitted defendant Lee to continue
at the facility even though it knew the assault and battery took place.
The plaintiff claimed that these actions violated the regulatory and statutory duties of the defendants. Thus, the
plaintiff was entitled to the presumption of elder abuse per se pursuant to Norman v. Life Care Centers of
America (2003). The plaintiff also claimed that the T12 spinal fracture was due to the assault and battery. It
resulted in severe and continuous back pain. The plaintiff also sustained severe and continuous cognitive
decline due to the assault and battery. The assault and battery caused the plaintiff severe psychological damage
shown in her depression, insomnia and fear of strangers. The plaintiff also demonstrated a loss of interest in
life. The plaintiffÆs expert testified to a causative link between the T12 compression fracture and the abuse of the
plaintiff. He also testified to reasons for the continued cognitive decline. Another expert testified to the
psychological bases for continued cognitive decline and as a proximate result of the abuse, and of the neglect of
care and attention following the abuse. Another expert testified to the regulatory violations.
DEFENDANTSÆ CONTENTIONS:
The defendants denied the allegations. They maintained that no assault and
battery occurred. They also argued that the incident was one in which defendant Lee suffered assault and battery
by the plaintiff when she was trying to restrain the out-of-control plaintiff. According to the defense, the
plaintiff went out of control when she was denied access to an elderly resident who was unreceptive to her
romantic overtures. She began pounding on the door with her firsts and shoes to gain access to the resident.
When defendant Lee attempted to escort her away, the plaintiff grappled with her and then sat herself down
harshly in a chair. For her remaining five days at the facility, the plaintiff made no complaints of pain and
continued with her normal activities.
The defense also claimed that after discharge, no medical care was sought for over one week until disgruntled and
bitter former employees of the facility reported to the plaintiffÆs adult daughter that her mother had been
"abused." The defense claimed that these reports were also inaccurate. Other eyewitness reports did not match
up with the former employeesÆ reports.
The T12 compression fracture in the plaintiffÆs spine was non-traumatic in origin, pre-existed the event, and did
not involve any abuse of the plaintiff. It had also healed without any sequelae. The plaintiffÆs cognitive decline
and other physical and psychological impairments since her stay at the defendant facility were caused by the
natural progression of AlzheimerÆs disease, not by any of the plaintiffÆs claimed incidents. Further, a Life Care
Plan, if any, for the plaintiff should be limited to the cost of "comfort measures" only, as the plaintiff did not

Settlement Discussions

Six months before trial, the plaintiff served a C.C.P. Section 998 offer in the amount of $400,000 on the defendant facility and defendant Lee. The offer did not result in a response. Collette Lee R.N. had not pleaded nolo contendre to the felony assault charges. After her plea, the entire complexion of the case changed and settlement was strongly encouraged and mediations were held. Defendant Lee contends that after her plea agreement, the plaintiffÆs demand rose to $2 million.

Specials in Evidence

The claimed damages include a Life Care Plan for medical costs totaling $445,000.

Damages

Further damages include those for emotional distress, physical pain and suffering, punitive damages, attorney fees and expert witness fees.

Injuries

* * * * (CONTINUED FROM DEFENSE CONTENTIONS) The defense expert testified that the defense medical exam showed no cognitive impairments connected to a traumatic event. The plaintiffÆs cognitive impairment was due to her AlzheimerÆs disease. Another expert testified that the defense mental examination of the plaintiff showed no psychiatric damage related to a traumatic event. Further, the plaintiff did not remember such an event. Any psychiatric impairment was due to her AlzheimerÆs disease. Another defense expert testified that studies have shown that eyewitnesses can mistakenly perceive the restraint of an out-of-control AlzheimerÆs patient to be assault and battery. Another expert testified that the T12 compression fracture was not connected to any traumatic event. The etiology of this compression fracture was non-traumatic in nature. One of the experts testified that although there was hematoma connected with the fracture, it had fully healed and the plaintiff sustained no sequelae. A defense witness testified that the defendants complied with all regulatory obligations and the standard of practice regarding their investigation and reporting. Further, the Title 22 provisions of the California Code of Regulations do not set forth the standard of care for the defendants. They are only guidelines for the operation of such a facility. Another expert testified that the minimal cost for a Life Care Plan was $21,897. Defendant Lee further claimed that she cooperated completely with an internal investigation by the facility, by the State licensing agency, and federal agents to whom she had personally submitted three separate incident reports. She further contends that while vehemently denying the allegations against her, the cost of criminal defense and her deteriorating health caused the defendant to accept an agreement where a plea was entered of nolo contendere. INJURIES: The claimed injuries are T12 compression fracture, arms bruises, severe back pain, emotional distress, cognitive decline, sleeplessness and depression.

Result

The settlement result was $825,000.

Other Information

* * * (CONTINUED FROM FACTS) Calhoun was distressed by the employeeÆs reports and the significant change in the plaintiffÆs medical condition and demeanor. Calhoun took the plaintiff to the doctor. An examination and MRI revealed a spinal compression fracture at the T12 level that occurred very recently. Calhoun contacted Adult Protective Services. The California Dept. of Social Services (DSS) investigated. The DSS investigation showed that each of the defendants professed to perform an internal investigation, had allowed defendant Lee to continue at the facility, did not report the incidents, and had violated regulations. Further, Calhoun got in touch with the County of Los Angeles SheriffÆs Dept. This set in to motion a criminal investigation and the prosecution of criminal charges against defendant Lee for the physical abuse of the plaintiff. Defendant Lee entered a plea of nolo contendere to felony elder abuse of the plaintiff. She was found guilty on Oct. 12, 2005. This plea had the equivalent legal effect as a plea of guilty. When the plaintiffÆs physical abuse occurred, defendant Lee was 5Æ11". She weighed 170 pounds. The plaintiff was 4Æ10" and weighed 85 pounds. OTHER INFORMATION: Defendant LeeÆs plea of no contest to criminal charges of felony elder abuse and the deposition admissions by the defendantÆs managing agents that they were aware of the abuse, in addition to their failure to report it, were important factors in the settlement negotiation.