Successful challenge by Prout LeVangie to Department of Public Health AA citation- Marysville Care Center vs Department of Public Health

 

Eric S. Emanuels (eric.emanuels@proutlaw.com) of Prout ● LeVangie in Sacramento, California, successfully achieved a reduction in an ‘AA’ Citation issued by the California Department of Public Health during a superior court trial in Yuba County.  The facility favored agreement was reached after Motions in Limine and the first four witnesses called by the Department. The skilled nursing facility obtained this favorable resolution without calling a single witness on its own behalf, since the Department of Public Health (DPH) witnesses were effectively discredited through cross-examination. For over a year, the California Department of Public Health stridently refused reduction of the “AA” level citation.  During the trial, the Department of Public Health asked to interrupt the presentation of evidence to affect a resolution.


 

The defense excluded the state’s citation report from evidence under California Evidence Code Sec. 1280 and the Civil Penalty Approval Sheet under Evidence Code Sec. 1271. The department’s medical expert and the coroner were discredited on cross examination, leading to this result. The DPH District Administrator testified she was “guessing as to why” she affirmed the Civil Monetary Penalty ($100,000.00) and the “AA”citation, and had no documentation proving she even looked at anything to insure that the State Board Registered Nurse ( Health Facility Evaluator Nurse)  had done her job, before she was asked to sign the Civil Penalty Approval Sheet. By way of background a”AA” citation is the most severe that can be issued by the Department of Public Health and means that there was a regulatory violation that was the direct proximate cause of the death of the patient. It carries a penalty of $100,000.00


 

The DPH Physician Medical Consultant admitted that she only looked at partial records and that she never looked to see if this was an “unavoidable accident” as defined by the Guidelines to Surveyors. She therefore was forced to admit that she had tunnel vision and had made up her mind that this was an avoidable accident. She admitted she did not know if the patient had risk factors for stroke and on cross examination testified to that fact when shown records that the patient had risk factors for stroke. The doctor then testified there was a dilated left pupil and that this is a sign of a stroke. She had no explanation why the coroner did not examine the brain to determine if a stroke was the cause of death.


 

The coroner admitted he did not look at the brain, even though there was a dilated left pupil, and he also admitted the patient could have died from a stroke and not asphyxiation from a bedrail, which was the allegation in this case. The coroner claimed he did not look at the brain, as he had already decided the patient died from asphyxiation, based on the location of the body and the compressed larynx. He failed to quantify the degree of compression in the larynx and admitted on cross examination that the patient still could be ventilated, as he had no proof of total airway occlusion.


 

The case settled for reduction to an “A” level citation, a much lesser violation. An “A” citation essentially means there was an alleged   regulatory violation, and that it “had the potential for causing injury. The monetary penalty is only $20,000, compared to the $100,000 penalty assessed for a “AA” citation. DPH records and websites must be changed within seven days, pursuant to the terms of the settlement agreement. The provider, as part of the settlement, and DPH agreed that this this was a disputed claim, and that the settlement did not mean that the provider was admitting to any wrongdoing based on the settlement. Rather, the settlement was reached to resolve a disputed claim.

Author: Web Master
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