Cottage Park Place v. State Dept.of Public Health CA3

Filed 4/27/15 Cottage Park Place v. State Dept.of Public Health CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

COTTAGE PARK PLACE, LP, C072323

Plaintiff and Appellant, (Super. Ct. No. 34-2011- 00095103-CU-MC-GDS) v.

STATE DEPARTMENT OF PUBLIC HEALTH,

Defendant and Respondent.

A nursing assistant failed to adequately supervise an elderly resident of a nursing facility owned by plaintiff Cottage Park Place, LP, which resulted in the fall and subsequent death of the resident. Cited by defendant State Department of Public Health (the Department) for violation of a federal regulation requiring adequate supervision of residents, Cottage Park Place challenged the citation in court. The trial court entered judgment in favor of the Department, and Cottage Park Place appeals.

1

On appeal, Cottage Park Place contends: (1) our role is to review the trial court’s ruling de novo, (2) Cottage Park Place is not responsible for the nursing assistant’s inadequate supervision, and (3) various interpretive federal authorities establish that Cottage Park Place is not responsible for the nursing assistant’s inadequate supervision. We conclude: (1) Cottage Park Place’s contention that our role is to review the trial court’s ruling de novo is without merit because Cottage Park Place ignores the trial court’s credibility determination as to the nursing assistant, (2) Cottage Park Place is responsible for the nursing assistant’s inadequate supervision of the resident under the rule of nondelegable duties, and (3) Cottage Park Place’s reliance on interpretive federal authorities is forfeited because those authorities were not brought to the attention of the trial court. BACKGROUND The Long-Term Care, Health, Safety, and Security Act of 1973 (Health & Saf. Code, § 1417 et seq.) allows the Department to cite a long-term health facility for violations of state or federal laws or regulations relating to those facilities. (Health & Saf. Code, § 1423.) The most serious violation – a Class AA violation – occurs when the violation is “a direct proximate cause of death of a patient or resident of a long-term health care facility.” (Health & Saf. Code, § 1424, subd. (c).) Cottage Park Place operates Gramercy Court, a long-term skilled nursing facility, where resident Mary Anne Holden was injured on October 12, 2007, and later died of her injuries. The Department issued a Class AA citation and assessed a civil money penalty of $90,000 against Cottage Park Place for violation of 42 Code of Federal Regulations part 483.25, subdivision (h)(2), which provides: “[T]he facility must ensure that [¶] . . . [t]he resident environment remains as free of accident hazards as is possible; and [¶] . . . [e]ach resident receives adequate supervision and assistance devices to prevent accidents.”