Stephen Garcia and David Medby Author Article on Elder Abuse Statutes in the Daily Journal

In the article, “Rein in the Abuse of an Elder Abuse Statute” published by the Daily Journal, Partners Stephen Garcia and David Medby of Garcia, Artigliere & Medby, discussed how the enacted legislation to address and enforce understaffing, one of the primary causes of violations in nursing homes, has led to abuse by private litigants and their attorneys.

In 2000, Health and Safety Code Section 1276.5 was enacted mandating a minimum of 3.2 hours of direct nursing care per patient per day; however understaffing remained rampant, largely due to the ineffectiveness of Section 1276.5.

As a solution, Health and Safety Code Section 1430 was enacted, which provides for the private enforcement of the rights of nursing home residents. Too, Section 1430(b) states that a current or former nursing home resident can bring private civil action against the licensee, as well as provides for statutory penalties of $500, for costs and attorney fees, and for injunctive relief to curb the violations.

Although Section 1430(b) is important, it has also led to abuse in recent years by private litigants and their attorneys. Private litigants routinely seized upon the statutory penalties of $500 by filing private class actions in the hopes of achieving lucrative settlements and verdicts asserting that nursing home chains were liable for $500 per violation and/or per resident.

Mr. Garcia and Mr. Medby highlighted a few cases that clarify the ambiguity of the 1430(b) language including, Nevarrez v. San Marino Skilled Nursing and Wellness Centre.