Beginning January 1, 2004, defendants will have to make an affirmative showing that a Confidentiality provision is necessary before such a provision can be included in a settlement agreement. Also, it will be a sanctionable offense if it is shown that evidence was destroyed or altered.

Confidentiality Provisions

Assembly Bill 634 (Steinberg) was signed by Governor Davis on August 29, 2003, and adds sections 2031.1 and 2031.2 to the California Code of Civil Procedure. The main focus of the Bill deals with confidentiality agreements in settlements for Elder Abuse claims made under the EADACPA statute (Welfare & Institutions Code § 15610 et. seq.). It requires a specified showing before a confidentiality agreement in this type of proceeding may be recognized or enforced by the court. Confidentiality agreements could be upheld if: (1) The information is privileged under existing law; (2) The information is not evidence of abuse of an elder or dependent adult as described in the EADACPA statute; or (3) The party seeking to uphold the confidentiality of the information has demonstrated that there is a substantial probability that prejudice will result from the disclosure and that the party’s interest in the information cannot be adequately protected through redaction.

Essentially, the Bill obliges disclosure unless lawyers come up with a good reason why the matter should be kept secret. The bill was quietly approved by the Legislature and signed by Gov. Gray Davis despite fierce opposition from the long-term-care industry.

The Plaintiffs Bar calls the new Bill a significant victory, as it creates a statewide policy against confidential agreements in any cases alleging a violation of the Elder Abuse and Dependent Adult Civil Protection Act; and makes it an explicit misuse of the discovery process under CCP § 2023 to destroy or alter evidence in elder abuse cases. The impetus for the Bill was the claim that confidentiality provisions have become a standard operating procedure in order to hide the patterns of abuse in cases filed against nursing home/resident care facilities. The Bill seeks to allow the public to obtain information about abuse patterns by prohibiting secrecy agreements in these cases.

Business groups argued during legislative hearings that the bill could increase nursing home costs and set a precedent that would discourage settlements and thereby lead to major backlogs in the courts. Additionally, numerous chapters of Citizens Against Lawsuit Abuse argued that this bill is unnecessary, may threaten jobs, will open the door for more frivolous litigation, will discourage settlements and greatly increase the costs of litigation and insurance, and drive up costs for any business providing elder or dependent adult services, to the ultimate detriment of consumers.

Under the language of the bill, dollar amounts of settlements will remain confidential, and a judge can limit the release of other information if it is privileged under existing law, if it is not evidence of elder abuse or if “there is a substantial probability that prejudice will result from the disclosure” even if certain sections are redacted. In other words, information uncovered during the discovery phase of a case can be made public if a court determines that the information is evidence of elder abuse.

It’s difficult to show a pattern of abuse or neglect by a skilled nursing home or other facility if the information is kept secret -- and families need to know who the bad players are in order to protect their loved ones, supporters argued. Opponents argued that it simply throws more fuel on the fire, because defendants will be less willing to settle even nuisance lawsuits because they won’t want them on their record.

We believe this is an attempt to divide and conquer the “confidential settlement” by applying it to a specific industry, and we anticipate more bills using this legislative technique.

As the number and size of liability cases against nursing homes grows, the cost of liability insurance continues to skyrocket. Some insurers have fled the state.

No state law requires long-term-care homes to buy insurance. But without it, one big lawsuit can mean bankruptcy.

State regulators and others -- including California Advocates for Nursing Home Reform (www.canhr.org) -- post citation information on the Internet so customers who want to information about a certain facility can check it out for themselves. This information is available now.

Claims of Destroyed or Altered Evidence
The provision still allows protective orders for documents except those documents that are evidence of elder abuse that are not privileged, not evidence of abuse, OR not prejudicial.

The Bill originally created a new tort for destruction of relevant evidence in a civil action alleging a violation of the Elder Abuse. That new tort was removed through Amendments; however, if it is shown that evidence was in fact destroyed or altered, it is a sanctionable offense.

Many allegations are already made for “missing documents” or “altered documents” in Elder Abuse cases. Based on the new statute we will probably see a lot more motions for sanctions (monetary or terminating) because of alleged missing or altered evidence.

What Now?
AB 634 applies only to cases brought under the Elder Abuse and Dependant Adult Civil Protection Act. It
does not affect suits involving negligence against doctors or other health care providers.

The bill permits courts to lift protective orders and air settlement agreements in any civil action for violation of the Elder Abuse and Dependent Adult Protection Act unless attorneys can show why the information should remain confidential. We will probably see motions to lift protective orders and for disclosure of prior settlement agreements, but the statute is prospective, not retroactive. Whether the statute allows for disclosure of past protective orders and settlement agreements will be up for interpretation by the Courts.

There is not automatic disclosure of material. Any judge can order release after a strict balancing test in which the parties argue why it should or should not be kept confidential. Even then, the judge can redact portions of the material. Regardless, the statute shifts the burden to the nursing home or other party that opposes disclosure of confidential information to show there is no evidence of abuse or neglect. Unfortunately, it presumes a valid claim exists without the plaintiff ever showing wrongdoing.

Based upon the statute, it appears that there will be much more law and motion in Elder Abuse cases, not the least of which will be a motion by the defense at the time of settlement to include confidentiality provisions, assuming such motion is appropriate.

Michelle Hancock is resident in the firm’s Orange County office, where she focuses her practice on health law litigation, with an emphasis on elder abuse and medical malpractice matters.