CONTENT COLUMNS. FEATURES Cover Story: Finding the Right Nursing Home for Loved Ones and Clients by Kim Valentine and Anna M. Bruty NUTS & BOLTS

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3 ORANGE COUNTY TRIAL LAWYERS ASSOCIATION OCTLA OFFICERS President Casey R. Johnson President-Elect Ted B. Wacker st Vice President Vincent D. Howard nd Vice President H. Shaina Colover rd Vice President Geraldine Ly Secretary B. James Pantone Treasurer Jonathan Dwork Parliamentarian Jerry N. Gans BOARD OF DIRECTORS Melinda S. Bell Anthony W. Burton Brent W. Caldwell Darren J. Campbell Cynthia A. Craig Robert B. Gibson T. Gabe Houston Paul E. Lee Kevin G. Liebeck H. Gavin Long Solange E. Ritchie Sarah C. Serpa Adina T. Stern Douglas B. Vanderpool Janice M. Vinci Atticus N. Wegman Immediate Past President Scott B. Cooper Executive Director Janet Thornton Editor Sarah C. Serpa Advertising Janet Thornton Graphic Designer William Suman Design, Inc Printing Innovative Printing Solutions The Gavel is published quarterly at a subscription rate of $50 per year. Periodicals postage paid at Lake Forest, California. Copyright 2014 Orange County Trial Lawyers Association. All rights reserved. Reproduction in whole or in part without written permission is prohibited. POSTMASTER: Send address changes to The Gavel, Moulton Parkway, #135, Laguna Hills, CA VOLUME 17 NUMBER 3 SUMMER 2014 CONTENT COLUMNS FEATURES Cover Story: Finding the Right Nursing Home for Loved Ones and Clients by Kim Valentine and Anna M. Bruty NUTS & BOLTS IBIDEM Editor s Commentary: Trial Lawyers Depicted on Film by Sarah C. Serpa 6 President s View: Not Afraid of Change by Casey R. Johnson THE GAVEL SUMMER In-Depth Analysis: Defendant s Net Worth Negative or Not? by Solange E. Richie 12 The Art, or Lack Thereof, of Selecting Your Jury by Robert Gibson 16 Seeking Damages in Workers Compensation Claims? by Geraldine Ly 20 Workers Comp and Structured Settlements by Patrick Farber 24 Judicial Interview with the Honorable Kirk H. Nakamura by Megan G. Demshki 18 OCTLA New Members 27 OCTLA Tidbits & Announcements Top Gun Nomination Form 42 Calendar of Events 44 Verdicts & Settlements 46 Photo Library

4 Advertisers by Services Offered Advertising and Graphic Design William Suman Design, Inc Annuities and Structured Settlements Ringler Associates James Brady Kaas Settlement Consulting Appeals and Writs Donna Bader Court Reporting Services Jilio-Ryan, Inc Employment and Wrongful Discharge Law Law Offices of Charles Pernice Exhibits and Presentation Services Executive Presentations MotionLit Video Group Court Graphix Expert Services DeVinney & Dinneen Kars Advanced Materials, Inc Nolta Construction Consulting OHM Corp Traffic Engineer Wm. Kunzman Insurance Broker Aragon-Haas Legal Associations Public Law Center Marketing Services Kevin Brown Legal Marketing Mediators & Arbitrators JAMS The Resolution Experts ADR Services, Inc Judicate West Chris Mears Mediation Medical Services Dr. Gregory Fisher, Medical Expert Doctors on Liens, Inc Personal Trainer Sarah Condor, Esq Plaintiff Legal Services Callahan & Blaine Hodes Milman Liebeck Mosier, LLP.. 11 Klein & Wilson Shernoff Bidart Echevarria Bentley Howard Law PC Bisnar Chase Consumer Attorneys LLP.. 52 Printing Services Innovative Printing Solutions Private Investigations C. Jackson Investigations Litigation Investigators Workers Comp. Legal Services Thomas F. Martin Gary E. Skawin ORANGE COUNTY TRIAL LAWYERS ASSOCIATION

5 Guidelines for Manuscript Submission The Gavel accepts unsolicited manuscripts for consideration. Articles are judged on the basis of research, writing, topic, and interest to membership of OCTLA. The Gavel follows a modified version of the California Style Manual for legal citations. Manuscripts submitted should follow those rules as closely as possible. The Gavel prefers authors to avoid footnotes or endnotes, but such use will not be a basis for declining to publish an article. Authors should submit a copy of the article on disk or via , preferably in Microsoft Word format. Please include a photo and briefbiography with all submissions. to: The Gavel retains copyright on all articles. The Gavel freely grants permission to others to reprint the article, upon their agreement to acknowledge the copyright. The editors may make editorial changes to an article, without changing its substance. Submissions to The Gavel are subject to editing. Editorial decisions are based on writing quality, subject matter, potential interest to The Gavel readers, and other concerns the Editor may deem relevant in her sole discretion. The views expressed in the content of The Gavel are those of the authors, and may not be reflective of the views or policy of the OCTLA, its board of directors, and/or its membership. The Gavel content shall not be construed as legal advice. The articles, commentary, advertisements, and/or any other content contained herein are the opinions of the authors, and are not intended to be relied upon as legal advice. The views, positions, interpretations of law and arguments of the authors herein are theirs alone, and no endorsement by the OCTLA, its board of directors, and/or its membership should be inferred by virtue of their publication in The Gavel. Trial Lawyers Depicted on Film Sarah Serpa, Esq. While browsing through the Netflix cue, I wondered, Do any of these so called legal dramas really capture what it is we face in a real courtroom? I suppose some come close, some depict exchanges we could only hope for, and some must be written by folks who have never set foot in a courtroom. I have been a member of a film salon that has met every month for the last 15 years to discuss movies previously selected by one of the members. Silent Japanese films? Check. Stan Brackage experimental films? Check. Every Lars Von Trier film? Double check, and I still have to shake off chills from time to time as some of his images are forever seared into my brain. How could it be that the only legal drama we ever selected was The Verdict? Much debate could occur with respect to the realism of the attorney depicted by Paul Newman in that film, but let us skip that for now. For this summer issue, I thought I would put together a summer movie list that might be interesting for our members. I welcome s from our members with objections, further comments, more movies for the list or whatever else suits your fancy. My Cousin Vinny: Too many priceless examples to list here. Almost seems as if the film was written for the viewing pleasure of trial attorneys. To Kill A Mockingbird: Atticus Finch: An honorable attorney or a slick hired gun? THE GAVEL SUMMER

6 The Caine Mutiny: The Court Martial segment s cross-examination of the prosecution s psychiatrist is something we should all view. Judgment at Nuremberg: Spencer Tracy at his best. The German defense attorney played by Hans Rolfe is not to be missed. Anatomy of a Murder: I think we all know a defense attorney as slick and predatory as the prosecutor played by George C. Scott. One of the best direct and cross-examinations on film. Inherit the Wind: Some say this includes the best cross-examination on film. Miracle on 34 th Street: Best creative use of documentary evidence. Philadelphia: Denzel Washington s portrayal of the I ll take anything civil attorney is a pleasure to watch. Reversal of Fortune: Fun and more fun. Jeremy Irons at his creepiest best. A Few Good Men: Okay, okay. Farfetched? Maybe. But I could still watch the You can t handle the truth scene over and over again. 4 ORANGE COUNTY TRIAL LAWYERS ASSOCIATION

7 THE GAVEL SUMMER

8 Not Afraid of Change Casey R. Johnson, Esq. Readers need not look any further than the cover of this issue of The Gavel to see that after many, many years, we ve got a new look. The time and efforts that have been expended by OCTLA s volunteer board members is inspiring and the result representing over three years of efforts - is a top to bottom new look. Taking the most obvious change first, after nearly ten years of complacency, The Gavel has undergone a complete redesign. Having served as Editor during half of those years, perpetually advocating the if it s not broken, don t fix it theory of operating it likely surprised many that I wholeheartedly supported and even advocated for an update. New design, new fonts we ve finally entered the twenty first century. OCTLA has also successfully launched its new and improved website. With an emphasis on both appearance and function, octla.org will now serve OCTLA members better than ever before and we re just getting started. Thanks to the vision and hard work of Past Presidents Doug Schroeder and Scott Cooper, as well as the tremendous dedication of technology/website committee chairmen including Jim Pantone, Paul Lee and Greg Brown (in addition to the work of all committee members) OCTLA has a fully functional website including user-friendly daily Forum posts that are easy to read and respond to and put OCTLA members in constant communication with one another. Additional features will be rolled out throughout the year, including deposition databases and document banks. If you haven t been on the new octla.org yet, log in today, update your user profile and begin taking advantage of the incredible access to information and assistance that exemplifies the spirit and mission of OCTLA. Change has also extended into OCT- LA s exemplary educational programs with OCTLA joining the ranks of travel seminar presenters co-presenting this year s Palm Springs Seminar with CAOC/ Consumer Attorneys of the Inland Empire. If you were one of the 200 attendees lucky enough to attend this year s seminar April 4-6, you experienced some of the best educational programs and presentations trial lawyers have put on in decades. Whether a new lawyer or in practice for thirty or more years, each and every panel provided a benefit to attendees the biggest complaint being the inability to attend two panels going on at the same time. Thirty years ago, before CAALA s Las Vegas seminar, the Palm Springs seminar was the biggest California trial lawyer seminar, attended by the most prominent trial lawyers in the state. OCTLA could not be more proud to be a a part of the continued revitalization of such an incredibly powerful and historically rich travel seminar and we look forward to working with our brothers and sisters in the Inland Empire and at CAOC to continue to grow and expand this amazing event. You won t want to miss next year, so mark May 1-3 on your calendar now! Not everything has to change. This year, we ll return to Grant Howald Park on September 7, 2014, for the Bench Bar Softball Game and family picnic. OCTLA will also be returning to El Niguel Country Club on Columbus Day, October 13, 2014, for the annual Bench and Bar Golf Tournament. We expect another sell-out this year, so book your foursome early! OCTLA is also continuing its tradition of change by selecting a new charity that will receive all of the proceeds of the silent and live auctions at this year s Top Gun Trial Lawyer of the Year Awards Dinner. We are returning to the stunning Laguna Beach coast, and the world class Montage Resort to honor the accomplishments of our worthy colleagues. The deadline to nominate someone for a Top Gun award is July 31, Nomination forms are available at or you can complete and fax in the nomination form on page 30. The Top Gun Awards Dinner is always a memorable evening spent honoring deserving consumer advocates and this year will be no exception. But in addition to 6 ORANGE COUNTY TRIAL LAWYERS ASSOCIATION

9 honoring friends and colleagues, OCTLA will continue the tradition of raising money for a local charity. This year s charity, High Hopes Brain Injury Treatment Program, is the oldest non-profit brain injury treatment program in the country. Started in Costa Mesa in 1975, the program has grown and continues to provide much needed services to students striving to regain function, independence and dignity. With the overwhelming majority of students (over 90%) receiving scholarship assistance in order to attend the program, funding is crucial. It is estimated that over 20,000 people in Orange County suffer a head injury every year with leading causes being transportation accidents, sporting injuries and strokes. OCTLA continues to push for change in Sacramento s perception of the funding required to adequately operate our Courts and provide access to justice. Although there will be some restoration of funding in , our courts are still grossly underfunded. We must change this inequity to ensure Justice may be had for our clients and OCTLA will continue meeting with decision-makers, both locally and in Sacramento, to reinforce the critical importance of fully funded courts. Finally, OCTLA will continue to seek to change California into a safer state for patients and allow victims of malpractice to seek proper accountability. The Troy and Alana Pack Patient Safety Act represents what is likely the only opportunity that we will have in this generation to ensure increased patient protections, including inflationary adjustment of general damages available to victims of malpractice. Change can be a good thing and the change OCTLA is helping to achieve this year will not only solidify OCTLA as one of the preeminent trial lawyer associations in the state, but will make Orange County and California a better and safer place for everyone. Embrace change it will continue to come! THE GAVEL SUMMER

10 Finding the Right Nursing Home for Loved Ones and Clients by Kim Valentine and Anna M. Bruty I n 2009, men and women over the age of 65 accounted for 12% of the U.S. population. That translates into one out of every eight US citizens. Aging Statistics, Department of Health & Human Services, (May 23, 2014). In the next twenty years, The Department of Health and Human Services Administration on Aging projects that number to double. (Id.) With this boom in age longevity, more and more Americans will find themselves in need of nursing home services. As sons or daughters, we would like to think that we can prevent our parents from experiencing any physical or mental harm at the hands of others. As lawyers, we would like to think that we will protect our senior population from the tragedy of elderly abuse. But imagine this your very healthy and vibrant mother or father trips over a rug fracturing their hip ultimately landing him or her in the hospital. That is when you receive a call. A call from the hospital discharge planner stating you need to find a facility for your parent. You may think you have days, but in most circumstances you would be wrong. Instead you will be given just a few short hours to find a nursing facility in which to place your beloved family member for the duration of their recovery. What you do in those next few hours is imperative to ensuring your mom or dad receives the quality of care they need to properly recover. As the population ages, the ability to find a proper nursing home becomes increasingly important to us on both a personal level for our loved ones, and a professional level for our clients. Who Can You Trust? Many people in this situation ask the hospital discharge planner for recommendations, while others seek out placement agencies for assistance if time permits. The common question posed to both doctors and agencies alike is: What would you do if they were your parent? However, the motivations behind these recommendations are unknown. What is known is some prestigious hospitals, as well as placement agencies, have very short lists of recommended nursing homes and many of these recommendations only received a one out of five star rating from the Centers for Medicare and Medicaid Services ( CMS ), as further explained below. As lawyers we instinctively rely not on what someone said, but rather only on what the evidence proves. Finding the proper nursing home care requires this same instinctive thought process. What Resources Can You Trust? Although very little comprehensive and reliable information regarding the quality of nursing homes exists, one helpful tool is the CMS Nursing Home Compare website at In 2008, CMS enhanced its Nursing Home Compare website to include quality ratings for all nursing homes which participate in Medicare or Medicaid programs. Design for Nursing Home Compare Five-Star Quality Rating System: A Technical User s Guide, Centers for Medicare & Medicaid Services, (2012). The site uses a five-star rating system for each nursing home. One star is the lowest rating a facility can receive, while five stars is the best rating that can be obtained. (Id.) This type of rating system allows visitors to easily identify the distinction between high and low-performing nursing homes. (See Id.) After you choose a specific nursing home to further investigate you will see that specific facility s Overall star-rating. The Overall rating is based upon each facility s performance within three different measures: 1) Health Inspections, 2) Staffing, and 3) Quality Measures. (Id.) The very first, and obvious suggestion is do not send a loved one to facilities with a one-star Overall rating if possible. Health Inspection. The first subsection of the Overall rating to further examine is the Health Inspections rating. The Health Inspection rating afforded to each facility is based upon information gathered by people who visit the facilities and conduct a standard survey process to determine whether Medicare s minimum quality requirements are met. Five-Star Quality Rating System, Centers for Medicare & Medicaid Services (March 2013). Additionally, you will see the list of deficiencies received by the specific facility. (Id.) Deficiencies are findings by the State Department of Health Services that a facility failed to meet one or more federal health requirements during a health inspection or complaint inspection. (Id.) This list will aid you in your understanding and determination by providing you with insight regarding the specific weaknesses of a particular facility. Staffing. The next component of the Overall rating further investigated is the Staffing rating. Information contained within this subcategory is of particular importance as studies have found a direct correlation between nursing home staffing levels, staffing ability, and 8 ORANGE COUNTY TRIAL LAWYERS ASSOCIATION

11 resident outcomes. Harrington, Charlene et al, Nurse Staffing Levels and Medicaid Reimbursement Rates in Nursing Facilities PMC / (2007). There is a proven associate between higher staffing levels and improved quality of care. (Bostick, Systematic Review of Studies of Staffing and Quality in Nursing Homes. nlm.nih.gov/pubmed/ (2006). Facilities are required by Medicare to input patient information to a centralized database. Design for Nursing Home Compare Five-Star Quality Rating System: A Technical User s Guide, Centers for Medicare & Medicaid Services, (2012). From that data numbers are generated which reflect the average amount of staffing hours, particularly nursing hours, provided to each patient each day. (Id.) Pursuant to California Health and Safety Code, 3.2 nursing hours per patient per day is the statutory minimum which skilled nursing facilities are required to maintain. California Health & Safety Code Nevertheless, keep in mind that good care does not typically happen at facilities providing an average 3.2 daily nursing hours to each patient. Harrington, Charlene et al, Nurse Staffing Levels and Medicaid Reimbursement Rates in Nursing Facilities Elder abuse is a serious issue in today s society and one that becomes increasingly more relevant as our population continues to age. nlm.nih.gov/pmc/articles/pmc / (2007) at 8. A study done by the Centers for Medicare and Medicaid Services found that each skilled nursing facility should dedicate at least 4.1 nursing hours per patient per day to prevent harm or jeopardy to long stay residents. (Id.) With all this in mind, attempt to choose a facility with the highest staffing number possible. Quality Measures. The last star-rating to explore further is the Quality Measures rating. There are 18 Quality Measures which can be found on the Nursing Home Compare website. Design for Nursing Home Compare Five-Star Quality Rating System: A Technical User s Guide, Centers for Medicare & Medicaid Services, (2012) at 10. Quality Measures are indicators of how well a nursing home provides care to its residents. (Id.) However, the Quality Measure star-rating is based on the facility s performance of only nine of those 18 Quality Measures. (Id.) The percentage of high risk residents with pressure sores and the percentage of residents experiencing one or more falls with major injury are two examples of the nine measures making up the basis for the Quality Measure rating earned by the facility. (Id.) The nine Quality Measures that make up the basis of the Quality THE GAVEL SUMMER

12 Measures star-rating were chosen due to their inherent validity and reliability, the extent to which the measure is under the facility s control, statistical performance and importance. (Id.) Use this to guide you in your determination of the proper facility by selecting facilities with higher Quality Measure star-ratings. Go to the Facility, Look at the The information available on the Nursing Home Compare website is just the tip of the iceberg of information one should know when choosing a nursing facility, and if time permits always attempt to visit the facility. The obvious reason for such visit is to personally inspect the conditions and quality of the facility. Additionally, keep in mind a skilled nursing facility is required by the Patient Protection and Affordable Care Act to have available for review a Statement of Deficiencies and the accompanying Plan of Correction, collectively referred to as the PPACA Pub. L , 124 Stat (c)(2)(V) The 2567 is a federal form each State must use to document health inspections or surveys. Washington State Department of Social Health Services Aging and Long-Term Support Administration The form is divided into two parts. The first section is The Statement of Deficiencies which is completed by the State s Department of Health Services and lists deficiencies, if any, found during the surveys. (Id.) The second section is The Plan of Correction, which the nursing home completes by detailing the action the facility has taken to correct the conduct which led to the deficiencies cited. (Id.) In sum, pay particular attention to the 2567 as it will have a factual summary of each of the facility s regulatory violations, the accompanying facts, and the facility s resolution for such deficiency. (See Id.) If you do not see the 2567 posted, ask to see a copy because oftentimes the most recent 2567 is only attainable through the facility. You have a right to access this information and do not let the facility persuade you otherwise. PPACA 6103(c)(2)(V) Do Not Sign an Arbitration Agreement. At this point you have chosen a facility and hopefully your diligent research resulted in choosing the best facility for your loved one or client. After making your choice typically the facility will present the resident or their representative with an overwhelming stack of papers. Buried somewhere within that pile of papers is an arbitration agreement. It should go without saying, in the unfortunate cases of elder abuse, it becomes of the utmost importance that the resident and/or the resident s representatives do not sign these. Unlike a doctor s office, under California statute, signing an arbitration agreement cannot be a precondition for admission to the facility. (California Health & Safety Code (a)) Choose Your Attending Physician. When elders are admitted to a skilled nursing facility they may be assigned an attending physician. Oftentimes, elders and their family assume the attending physician assigned is an employee of the facility, but usually they are not. Typically the assigned attending physicians of skilled nursing homes work on a revolving basis, and each has hundreds of nursing home patients. See Cato, Alan M.D. Why Nursing Homes Need More Doctors On Site nursing-homes-doctors-site.html (October 19, 2011). In practical application, often the attending physician rarely physically assesses the patient. (Id.) Instead, it is the practice of many attending physicians to provide many of their orders telephonically, relying significantly on the information gathered and communicated by the facility. (See Id.) For these reasons it is important to remember California statute provides patients or their representative with the right to select their own physician. 42 CFR (d)(1); 42 CFR Take advantage of this right, do the research and find an attending physician that best suits the needs of your loved one or client. Write a Directive. Also be aware that an increasingly common form of elder abuse is the administration of psychoactive and chemical restraints to residents without clinical justification or purely for the convenience of the staff. California Advocates for Nursing Home Reform, Toxic Medicine What You Should Know to Fight the Misuse of Psychoactve Drugs In California Nursing Homes org/reports/2010/toxic_medicine.pdf (2012). These types of medications can, in some cases, increase risk of harm or injury to many patients if not properly administered. (Id.) This is just one example of the possible breakdowns in nursing homes. To prevent this situation, and hopefully others, upon admission immediately write a directive telling the facility that under no circumstance is the facility allowed to administer new medications for any diagnosis which did not exist at time of admission unless the consent of the patient s durable power of attorney is obtained. Be Proactive. Finally, remember with elders, conditions can drastically change overnight. One day dad is mowing the lawn and the next day he is having hip surgery and being placed in a nursing home. Be proactive. Have your family members or clients sign a health care directive that allows someone trustworthy the ability to sign documents and obtain medical records to prevent the situation described above as well as many other potential care problems. Elder abuse is a serious issue in today s society and one that becomes increasingly more relevant as our population continues to age. By remembering the advice above, hopefully you and your family members will avoid the heartbreak that elder abuse in nursing homes can cause. Most importantly remember the placement of someone in a nursing home can be a life-changing decision and making such a monumental decision requires no less than the detailed thought process applied by you as lawyers in your professional capacity. Kim Valentine is the Principal attorney of Valentine Law Group, APC. The firm focuses on areas of elder and dependent adult abuse and neglect, medical malpractice and serious personal injury. She can be reached at group.com. Anna M. Bruty is an attorney at Valentine Law Group, APC. Anna can be reached at valentinelawgroup.com 10 ORANGE COUNTY TRIAL LAWYERS ASSOCIATION

13 THE GAVEL SUMMER

14 The Art, or Lack Thereof, of Selecting Your Jury by Robert Gibson to OC Superior today to start trial again. After being advised that my Judge was already handling Ilreported another trial, I made my way down to the cafeteria and took up my temporary residence at one of the tables. I fidget. I read the newspaper. I call the office. I send mindless texts. I read about the Donald Sterling fiasco. Then I begin to think about what I m going to try to accomplish during the selection of the jury. Don t get me wrong, I did think about this as I was preparing the case. However, while watching the potential jurors walk out of the giant room where they all gather, buying coffee, making phone calls, smoking cigarettes and trying to re-arrange their schedules quickly reminded me that no matter how much I want it to be true, none of them want to be here. So, what does one do? Well, I started my career thinking that jurors might actually come to like me during the case. If I could be charming, smile, tell a couple jokes, they would come to like me and therefore see things in a light most favorable to me. Uhhh, wrong. So then I figured I needed to let them really know the good stuff about my case. Get all the good stuff out so that they would be dying with anticipation to sit and serve, and would joyfully do their civic duty by compensating my client with a whole bunch of money. I d win my case during jury selection. Uhhh, wrong again. So after years of doing this, picking more juries than I care to mention, going to seminar after seminar and listening to others tell me how to do it. I finally said BS, I ll have to find a different way. I figured I d be better served if I found out why they want to find against me and my client. I decided I was not interested in picking 12 great jurors, I was interested in getting rid of the bad ones who were going to destroy my case. What to keep in mind from outset: First, jurors don t want be there. They have jobs, families, lives. Two biggest complaints about jury duty? It s inconvenient, and it s boring. What does that tell you? Don t waste time during jury selection. Get to the point. Don t ask the same thing over and over. Jury selection is crucial for us. It s horribly boring for them. Mindless blathering is not going to help. Try to make all your questions count. Second, The reality of your case. Let s face it. Some of our cases just stink. You ve got a rear ender with $500 in property damage, the photos of your car show not a lick of damage, your client went to a chiropractor you referred him/her too. Those bills are $9,000, and 5 months after being released, they go see a pain management doctor and they have an MRI which shows degenerative disc disease whatever the hell that is, and they have 3 epidurals each billed at $15,000 a pop. Oh, and 18 months after the accident there s a recommendation for surgery. My guess? You are not going 12 ORANGE COUNTY TRIAL LAWYERS ASSOCIATION

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