Facts

This case involves the trial of one of two landmark California Supreme Court cases in the field of Elder Law. The first case is Delaney vs. Baker and the present case is Covenant Care vs. Superior Court, decided in 2004.

Plaintiffs, Lourdes Inclan, then 41, and Juan C. Inclan, then 38, are children of the decedent Juan A. Inclan (72). Plaintiffs lived on the East coast and decedent lived in Southern California beginning 1993. Because of difficulties with day to day activity decedent began living in assisted living facility, Le Bleu Chateau in October, 1995.

On Oct. 26, 1996, he was put on hospice by his physician for what was described as end-stage Parkinson's disease. The physician, however, had not seen the patient for six months. Coordinated Hospice (GHHS) began hospice service on Oct. 26, 1996, and transferred the patient to Riverdale Convalescent Home (Covenant Care) on Jan. 27, 1997. Mr. Inclan remained at Riverdale until he was transferred by hospice personnel to Laurelwood Nursing Facility (owned by GCI Properties, Inc.) On March 21, 1997, where he remained until his death on March 27, 1997.

During the time frame in question Mr. Inclan lost approximately one-third of his body weight and by the time of his death he appeared severely malnourished and dehydrated. Photographs taken two days after death show that he looked like a concentration camp victim. During care by the defendants Mr. Inclan developed 14 pressure ulcers, most of which were Stage III and Stage IV.

Causes of action were Elder abuse, willful misconduct, intentional infliction of emotional distress (by both plaintiffs and by decedent) fraud, constructive fraud, and wrongful death.

PLAINTIFF'S CONTENTIONS:
Plaintiffs alleged that decedent lost one-third of his body weight while under the case of defendants and suffered from severe malnutrition and dehydration. Defendants should have provided a feeding tube to maintain nutrition and build up his ability to prevent and/or heal pressure ulcers. Lourdes had authorized a naso-gastric tube for feeding in October 1996, but no tube was ever placed. She testified that this was what the plaintiffs and the decedent had wanted.

Plaintiffs alleged that Mr. Inclan did not suffer from end stage Parkinson's disease and that their father could have been maintained for 10 years. For that reason they claimed that the decedent was not properly a hospice patient, especially because the physician who put him on hospice had not seen the patient for six months.

The plaintiffs alleged that defendants breached the standard of care on multiple occasions by failing to comply with numerous state and federal regulations. They claimed that they were never notified as to changes of condition, did not know of the severe bedsores and were not given an opportunity to decide if the patient should be transferred from one facility to another.

As to Covenant Care, plaintiffs alleged that although regulations require Riverdale to have a physician see the patient within 72 hours of admission, no physician saw Mr. Inclan for 29 days. During that time he allegedly deteriorated, developed numerous decubiti, and was malnourished and dehydrated. Additionally, plaintiffs contended that Riverdale failed to follow physician orders for occupational therapy, physical therapy, and speech therapy and later failed to follow physician orders for a specialty bed for the bedsores, and a wound evaluation. Riverdale also failed to notify the family of the transfer to Laurelwood.

Plaintiffs claim that during the decedent's stay of almost two months at Riverdale, he severely deteriorated such that by the time of his transfer to Laurelwood, he was in the dying process.

The plaintiffs also claimed that all three defendants engaged in this activity in an effort to maximize profits at the expense of the patient and in order to increase payments from Medicare.

As to the hospice service (GHHS), and Westbrook, plaintiffs contended that the decedent should not have been placed on hospice in the first place, did not have a physician directly involved in the patient's care, or evaluation of his eligibility for hospice and failed to properly direct patient's care such that he became severely malnourished and dehydrated, developed numerous bedsores and ultimately died.

Given the numerous Stage III and IV bedsores plaintiffs contended that the decedent was in significant pain despite the misleading records at the facility. The plaintiffs claimed that there were fraudulent changes in the records, but did not call a questioned documents expert.

As to the hospice defendants, plaintiffs further alleged that Jay Westbrook countermanded orders by a physician at Riverdale for a specialty bed and transfer for a wound evaluation. These defendants also failed to provide for a feeding tube.

As to Laurelwood, plaintiffs claimed that they did not notify the family of the transfer and that because Mr. Inclan was in the final stages of the dying process and his body was shutting down, they were not competent to take care of him. Allegedly he needed acute care, rather than nursing home care.

Plaintiffs' nursing home expert, Susan Campbell, R.N., a former DHS investigator testified to the numerous violations of regulations by Riverdale and Laurelwood. The treatment and death of the decedent had been investigated by the Department of Health Services, and by the Glendale Police Department. No criminal charges were filed, although DHS did find deficiencies which were not brought out during trial.

Plaintiffs alleged intentional infliction of emotional distress as against GHHS and Westbrook and on behalf of the decedent, alleged IIED as against all defendants. They also claimed that the death occurred as a result of the improper conduct. Because the conduct was malicious, fraudulent, oppressive, and/or reckless they claimed punitive damages as against Covenant Care and Jay Westbrook. Punitive damages against the Grancare defendants were dismissed in bankruptcy proceedings.

DEFENDANT'S CONTENTIONS:
Defendants contended that the patient was properly on hospice, and that he passed away as a consequence of conditions directly arising from his end-stage Parkinson's disease.

The defendants called decedent's cousin, 79 year old Hortensia Gonzalez to testify that decedent did not want a feeding tube. She was the only family member who saw the decedent at any of the defendant facilities. Other than in March of 1996 when the son came out and saw his father in California, neither child visited the decedent although they called on a regular basis. Lourdes was involved in telephonic communications with some of the healthcare providers concerning her father.

Defendants called experts to testify concerning the dying process and the fact that malnutrition and dehydration were part of the process of inanition which gave the decedent the appearance of a concentration camp victim, caused him to develop bedsores, and prevented their healing.

Dr. Luxenberg testified for the defense that all of the care was within the standard of care although he made the concession that several regulations were violated, particularly the regulation requiring that a physician see the patient within 72 hours of admission to Riverdale.

Defendants contended that the decedent was already on his downhill course before he appropriately went on hospice and that nothing defendants could have done would have made any difference in the outcome. Hospice involves paliative, rather than curative care, and the main goal was to keep him comfortable. The records reflect that there were no complaints of pain.

Settlement Discussions

There were four mediations in this case: two in California and two in New York near plaintiffs' residence. Before trial, plaintiffs demanded $14 million dollars. Defendants offered a package of $2 million dollars: $1,350,000 from Covenant Care ($1 million dollars C.C.P. 998 offer in November 2005) and $650,000 on behalf of the Grancare defendants. Plaintiff hinted at a lower demand during trial but never presented a firm lower demand.

Result

Jury found for Covenant Care California Inc., GCI Properties, Inc., and Jay Westbrook on all causes of action [willful misconduct, IIED (by both plaintiffs and decedent) fraud constructive fraud, elder abuse, and wrongful death]. Jury found against GHHS for willful misconduct awarding pre-death pain and suffering damages of $80,000. This will be reduced to zero dollars on JNOV because pre-death pain and suffering can only be recovered in elder abuse cause of action. Additionally, any damages would be reduced by 30 percent fault attributed to Lourdes Inclan. Also, any judgment would have been reduced by $100,000 paid by a settling co-defendant approximately eight years ago. Plaintiffs filed a motion for new trial JNOV. Since preparation of this summary, the parties have agreed that the defendants will waive costs in exchange for a waiver by plaintiffs of all motions and appeals, completely resolving the case.

Deliberation

four days.

Length

8 weeks