Case details

Plaintiffs: Assisted care facility failed to provide contracted care

SUMMARY

$2000000

Amount

Verdict-Plaintiff

Result type

Not present

Ruling
KEYWORDS
emotional distress, mental, psychological
FACTS
On April 1, 2015, plaintiff Milton Glass, a man with parkinsonism (a condition that causes a combination of movement abnormalities seen in Parkinson’s disease), slid from his lift recliner and fell to the floor at Fairwinds West Hills, an assisted living facility in West Hills. He was uninjured, so his wife, plaintiff Renee Glass, called for assistance in putting Mr. Glass back in his chair. The facility called 911 without informing the residents or responsible party. First responders and three Fairwinds staff members filled the room to assess Mr. Glass, during which time the fire captain locked Ms. Glass out of the room when she strenuously objected to the idea that her husband might be taken to an emergency room against his expressed wishes. Police were called, and an altercation ensued, during which a heavy window blind fell on Ms. Glass’ shoulder and wrist. Ms. Glass was then chemically and physically restrained, before being detained on a 5150 hold. She was eventually released within a couple of hours, as it was determined that there were no grounds to hold her. After the incident, Fairwinds allegedly attempted to evict Mr. Glass, claiming that Mr. Glass could no longer feed himself. However, the Glasses said otherwise. After being reassessed, Mr. Glass was found to be at his preadmission levels, and the eviction notice was rescinded. The Glasses sued the administrator of Fairwinds West Hills, Harold Bermudez; and the believed operators of Fairwinds West Hills (which also did business as Fairwinds-West Hills Retirement Community), Whills LLC, Leisure Care LLC, One Eighty Foundation, One Eighty Leisure Care and Care One Eighty Leisure. The Glasses alleged that the defendants’ actions constituted negligence, a breach of contract, elder abuse/neglect, financial elder abuse, negligent misrepresentation, fraud and an invasion of privacy. The matter proceeded to trial against Leisure Care LLC, Whills LLC and Bermudez only. Plaintiffs’ counsel contended that prior to moving to Fairwinds West Hills, the Glasses, their daughter and their primary care physician were completely transparent about Mr. Glass’ diagnosis of parkinsonism. Counsel also contended that Mr. Glass presented to the facility in a wheelchair during each of the 40 hours the family spent in the “selling zone,” hammering out the specifics of Mr. Glass’ time-specific needs for basic assistance with activities of daily living–showering, toileting, transfers–plus Mr. Glass’ prescription diet, the provision of which was mandated by Title 22 regulations. Plaintiffs’ counsel further contended that the facility was aware that Mr. Glass had a private caregiver working 40 hours per week, plus strong family support, and that each and every detail was fine-tuned and agreed upon before the contract was signed. Counsel argued that having those services was critical to Mr. Glass’ proper care, peace of mind, and ability to thrive and that the facility took Mr. Glass as he was and told the family to have no anxiety about adequate staffing and training specific to parkinsonism. However, plaintiffs’ counsel argued that there were pervasive and continuous violations of California’s Title 22 regulations, as well as Leisure Care’s own policies and procedures. Plaintiffs’ counsel argued that it became apparent immediately after move-in that Fairwinds West Hills could not and would not honor the contract, as breaches to the residents bill of rights were frequent and retaliatory, including a bait-and-switch threat to withhold services unless the Glasses procured an unnecessary hospital bed or agreed to switch to 24/7 private caregivers. Counsel contended that the defendants agreed to provide services on a time-specific schedule, but that they did not comply with the agreement, and that the defendants also agreed to provide a mechanical soft diet, as per state regulations and a physician’s order, but that they did not do that either. Counsel also contended that the defendants required the Glass family to guess which foods were mechanically soft and/or modify the food themselves in unsanitary conditions and that when the family tried to enforce the terms of the contract, the defendants doubled-down to try to get Mr. Glass to leave. Specifically, the Glasses claimed that the facility attempted to evict Mr. Glass, claiming that Mr. Glass could no longer feed himself, but plaintiffs’ counsel presented photographic evidence that proved otherwise. Plaintiffs’ counsel argued that the defendants engaged in subterfuge and threatened to withhold caregiving services, failed to provide the prescribed diet, conducted secret reassessments of Mr. Glass’ condition as a pretext to eviction, hid the reassessment from the primary physician in violation of Title 22 and ultimately served an improper eviction notice for which the defendants were cited by Community Care Licensing. Counsel contended the Glass family worked with their attorney and their ombudsman to mitigate any concerns, but that the interventions did nothing but ratchet up the tension. Plaintiffs’ counsel also contended that the facility failed to comply with state regulations regarding maintaining the premises, including failing to repair malfunctioning call pendants in a timely manner; failing to properly repair appliances, doors and heavy window blinds, including the one that fell on Ms. Glass; and allowing faulty smoke alarms to cacophonously false-alarm for months at all hours of the day and night. In addition, plaintiffs’ counsel argued that Leisure Care LLC was the true operator of the Fairwinds West Hills facility and that Leisure Care set up shell corporations for each its facilities in an attempt to escape liability. At the close of the plaintiffs’ case, defense counsel filed a motion for nonsuit as to all causes of action, and the motion was granted as to Bermudez only. Leisure Care’s counsel argued that different corporations handled each of Leisure Care’s facilities and that Leisure Care was not part of the specific contract for services with the Glass family. As a result, counsel argued that Leisure Care could not be liable for any alleged breach of contract or alleged negligence., Mr. and Ms. Glass, who were married for 68 years, claimed that they each suffered post-traumatic stress, mental suffering, anguish and humiliation as a result of the altercation. Ms. Glass claimed that she also suffered permanent to a wrist, a shoulder and a knee.
COURT
Superior Court of Los Angeles County, Van Nuys, CA

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