Nursing home sanctioned over discovery delays it blamed on COVID-19

By Daniel Fisher

SAN DIEGO (Legal Newsline) - A California nursing home operator deserved more than $50,000 in sanctions for repeatedly missing deadlines to turn over evidence in an elder abuse lawsuit, an appeals court has ruled. 

The fact the home supplied more than 25,000 documents and complied with more than 40 witness depositions doesn’t excuse its “continuous dilatory conduct,” the court said.

“Untimely compliance is not compliance,” California’s Fourth Appellate District Court ruled in a March 24 decision, citing a five-year battle between plaintiffs and defendants over discovery.

Emiko Matsumoto was 85 with Alzheimer’s dementia but ambulatory and capable of taking care of most of her daily needs when she fell and broke her back in a retirement home in 2016. She was admitted to Lake Forest Nursing Center, a rehabilitation facility operated by Life Care Centers of America, which is owned by Forrest L. Preston.

She fell again in January 2017 at LFNC and was found lying face down on the floor. Family members said the staff refused to call 911 until they demanded it. Matsumoto was taken to the hospital and later released to her family’s home under hospice care, where she died a few weeks later.

The family then sued LFNC, claiming the center deliberately admitted patients requiring higher levels of care so they could produce greater reimbursements, but then skimped on staff, training and supervision. The lawsuit claimed LFNC knew Matsumoto was at higher risk of falling because of her dementia and failed to implement a care plan individualized to her needs.

The trial court appointed a discovery referee who issued 11 reports on 82 discovery motions over five years, most of which the court approved. The defendants argued the Covid-19 pandemic had impaired their ability to comply with the court orders but the court ruled that defense to be “at best, troubling and at worst shameful.” The referee said but for the pandemic, the center would be looking at “doomsday sanctions” preventing it from presenting evidence in its defense.

The court ordered $34,650 in sanctions and shifted the referee’s fees to the defense. But by October 2021 the defendants, now operating with new counsel, still hadn’t complied with all the discovery orders or paid the sanctions. The judge set a trial date for Dec. 6, 2021 while the defendants said they had supplied 2,000 documents and 46 depositions had been taken.

In response to defense arguments the plaintiffs were demanding too much, the referee said “the ‘business’ of caring for the elderly, infirm, difficult patients who more often than not present with innumerable ‘co-morbidities’, add extra layers that must be sorted through in the quest to find ‘the truth.’:

“Though defendants view it otherwise, ‘extensive’ discovery called for in this case does not equate to excessive discovery,” the referee wrote.

Meanwhile, the trial date was extended until June 6, 2022. The defendants paid $50,550 in sanctions but asked the court to reconsider its discovery and sanctions orders. When the trial judge refused, the defendants appealed. But the appeals court was no more sympathetic.

“Defendants did not have the option to pick and choose which discovery obligations to honor,” the appeals court ruled, calling the Covid-19 defense false and saying a last-minute “data dump” of documents “simply cannot pass muster as good faith compliance.”

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Nursing home sanctioned over discovery delays it blamed on COVID-19