Department of Health Services

ADMISSIBILITY OF DPH RECORDS

Department of Health Services: The DPH records in question consist of documents entitled “Statement of Deficiencies and Plan of Correction” (hereafter deficiency statements or statements of deficiency). Defendant moved to exclude the deficiency statements from evidence at trial on various grounds, including hearsay and that the records constituted evidence of bad character and if offered to prove conduct in conformity with that bad character, were inadmissible under Evidence Code section 1101, subdivision (a).

The trial judge sustained the hearsay objection and ruled the DPH statements of deficiency were inadmissible. As previously noted, the trial judge also excluded the testimony OF plaintiffs’ expert witness, who testified at an Evidence Code section 402 hearing that she reviewed 257 statements of deficiency issued by DPH to defendant over the course of nine years and based on her review of those reports, formed the opinion that “managers at CCRC did not manage the facility in a way that was providing the care and services necessary for the people that lived there, to the residents.”

Plaintiffs contend the statements of deficiency are not hearsay and in any event were not offered for the truth of their content, but rather for the non-hearsay purpose of showing that defendant had notice of various deficiencies in the performance of its staff, and that it ratified those deficiencies by failing to intercede and correct them. The court disagreed..

A. Standard of Review

We review a trial court’s ruling on the admissibility of evidence under the abuse of discretion standard. (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111.) In order to prevail on their claim, plaintiffs must not only show the trial court abused its discretion but also that the error was prejudicial in that it resulted in a miscarriage of justice. (Id. at p. 1114.) In this context, a miscarriage of justice occurs only if we are able to say, based on the entire record, that it is reasonably probable the jury would have reached a result more favorable to plaintiffs absent the error. (Ibid.)

B. Analysis

We begin our analysis with Evidence Code section 1200, which sets out the hearsay rule. (Evid. Code, § 1200, subd. (c).) “Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible except as provided by law. (Evid. Code, § 1200, subd. (b).)

The statements of deficiency at issue in this appeal set out the result of an investigation of a complaint about defendant’s nursing home and/or an inspection of that facility conducted by a representative of the DPH. The statements cite deficiencies the DPH inspector/investigator found as a result of the inspection/investigation. (See, e.g., Statement of Deficiencies and Plan of Correction regarding survey completed on January 22, 2001, by Carla Hill, H.F.E.N., representing the Department of Health Services.)

The types of deficiencies cited in the various deficiency statements at issue here run the gamut, from failing to comply with the statutory requirement to provide a minimum of 3.2 hours of nursing care per patient per day, to failure to chart physical changes in patients, such as weight loss, incontinence, and elevated temperature, and to notify a physician of those changes, to failure to give a patient medication as directed by a physician.

In addition, the deficiency statements include defendant’s plan of correction. For example, in response to the statement of deficiency regarding failure to provide 3.2 hours of nursing care per day per patient, defendant included a plan of correction that, among other things, explained “[i]llness among the staff resulted in less than desired attendance with an inability of overtime staff and on-call staff to fill in to achieve the necessary hours. This is being addressed in the following ways: Additional staff is being recruited (particularly CNAs) through advertising, signage, and calls to nursing programs, offering bonuses to existing staff for recruitment.”

We agree with the trial court that the statements of deficiency are hearsay if offered to prove the cited deficiency, i.e., they are out-of-court statements offered to prove that the deficiency cited in the statement actually occurred. Moreover, Health and Safety Code section 1280, subdivision (f) specifically states that “the act of providing a plan of correction, the content of the plan of correction, or the execution of a plan of correction, [is inadmissible] in any legal action or administrative proceeding as an admission within the meaning of Sections 1220 to 1227, inclusive, of the Evidence Code against the health facility, its licensee, or its personnel.”

Plaintiffs contend the statements of deficiency were admissible for their non-hearsay purpose—to show defendant’s notice and knowledge that the DPH had repeatedly cited defendant for violations of various statutory and regulatory requirements concerning the care of patients. In plaintiffs’ view, use of the statements of deficiency to show notice and knowledge of prior regulatory and statutory violations is a non-hearsay purpose.

While we agree that notice and knowledge is a non-hearsay purpose, in order to be relevant for that purpose, the statements of deficiency must involve the same types of violations that plaintiffs claim were committed in caring for their father. (See, e.g., Hickman v. Arons (1960) 187 Cal.App.2d 167, 171 [inspector’s notice regarding dangerous condition of building following fire was admissible to prove notice and knowledge of that danger in action for damages by family of man killed when wall of building collapsed two weeks later]; see also Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 778-779.)

Unless the statements of deficiency pertain to specific acts of negligence of the type plaintiffs claim were committed by the defendant in caring for their father, the statements constitute evidence of defendant’s bad character. As such, the deficiency statements are inadmissible under Evidence Code section 1101, subdivision (a) which makes evidence of defendant’s character trait, such as a propensity to act negligently, inadmissible if offered to prove conduct on a specific occasion, i.e., that defendant acted negligently in caring for plaintiffs’ father. “It is a fundamental rule of evidence that you cannot prove the commission of an act by showing the commission of similar acts by the same person at other times and under other circumstances. Such evidence is simply not relevant. . . .’ [Citation.]” (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 851 [Fourth Dist., Div. Two].)

Plaintiffs did not limit statements of deficiency to those, if any, involving conduct of the type they contend defendant committed in caring for their father. They sought the wholesale admission of the statements of deficiency to prove that because defendant was negligent in the past, it must have been negligent in caring for their father. The statements of deficiency are inadmissible for that purpose.

The question remains whether the statements of deficiency are admissible under any exception to the hearsay rule. The two that immediately come to mind are the business records exception and the official records exception.

The hearsay exception for business records is set out in Evidence Code section 1271 which states, “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event, if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

Plaintiffs argued in the trial court as they do in this appeal, that the deficiency statements are not hearsay because they are authenticated by the DPH and therefore are subject to judicial notice under Evidence Code section 452, subdivisions (b) and (c). Authentication means simply to establish that the document is what the proponent claims it to be, in this case a photocopy of the DHS deficiency statements issued to defendant. (See Evid. Code, § 1400.) In response to a subpoena duces tecum, the DPH provided plaintiffs with copies of statements of deficiency the DPH had issued to defendant. Those photocopies were accompanied by the affidavit required by Evidence Code section 1561. Plaintiffs submitted the photocopies of the statements of deficiency as part of their opposition to defendant’s summary judgment motion.

In Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697 (Fourth Dist., Div. Two), we explained that the custodian’s declaration required under Evidence Code section 1561 does not establish that a writing is a business record under Evidence Code section 1271 because the custodian’s declaration “is not required to state the identity’ or mode of preparation’ of the records. As a result, it will usually fail to show that [t]he sources of information and method and time of preparation’ of the records indicate their trustworthiness.

Therefore, in the face of a hearsay objection, the affidavit of the custodian, made pursuant to [section] 1561, does not satisfy the requirements of the business-records exception to the hearsay rule set forth in [section] 1271(c)-(d), and the copy of the business record, produced pursuant to [sections] 1560-1561, is inadmissible hearsay.’ [Citation.]” (Taggart, at p. 1706.) Here, as in the quoted case, the affidavit of the custodian of records does not satisfy the requirements of Evidence Code section 1271, and therefore the DPH statements of deficiency are inadmissible hearsay.

Unlike the business records exception, which requires testimony regarding the identity of the record and its mode of preparation, the public records exception to the hearsay rule does not have that requirement. The public records exception is set out in Evidence Code section 1280 and states, “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

Plaintiffs did not rely on the public records exception in the trial court and therefore did not establish the foundational requirements for the admissibility of the statements of deficiency under that exception. Consequently, we will not address that exception in this appeal. Instead, we conclude the trial court did not abuse its discretion by excluding the DPH deficiency statements from evidence at trial based on its finding that the records were hearsay and not within any exception to the hearsay rule.

Our conclusion that the DPH records are hearsay not within any exception to the hearsay rule, compels the further conclusion that the trial court did not abuse its discretion by excluding the opinion testimony of plaintiffs’ expert witness because that testimony was based entirely on inadmissible hearsay set out in the DPH statements of deficiency. Moreover, plaintiffs’ expert did not express an opinion related to a subject “sufficiently beyond common experience,” and therefore requiring the testimony of an expert. (See Evid. Code, § 801.)

According to her testimony at the Evidence Code section 402 hearing, plaintiffs’ expert witness intended to express the opinion, based on her review of the DPH deficiency statements, that defendant’s managers “did not manage the facility in a way that was providing the care and services necessary for the people that lived there, to the residents.” As plaintiffs’ expert acknowledged, a layperson who had read the 257 statements of deficiency in question would have come to the same conclusion. In short, plaintiffs’ expert witness did not express an opinion related to a subject “sufficiently beyond common experience.” Instead, she simply synthesized the content of the statements of deficiency to form a conclusion that anyone who had read the material would also have formed.

– from Steven Peck, Senior Attorney at Peck Law Group