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Supreme Ct. Rejected Long Standing Rule in Carrier Subrogation Case

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On June 16, 2009, fire destroyed the building in which defendant Cory Michael Hoehn and his roommate, Forest Kroll, had leased an apartment.

An investigator for the building’s insurer, plaintiff California Capital Insurance Company determined that “careless smoking” on the patio caused the fire. Although the investigator reached no conclusion about who started the fire or who was present when it began, California Capital sued Hoehn and Kroll in March 2010 for “general negligence,” alleging that they caused the fire due to “improperly discarded smoking materials.” The company asked for $472,326 in damages.

In March 2010, the company attempted to serve Hoehn with a complaint and summons in the lawsuit. The affidavit supporting the return of service stated that the summons and complaint were left with Shannon Smith and identified Smith as “Girlfriend,” “Co-Occupant,” and “a competent member of the household.” A copy of the summons and complaint was also mailed to Hoehn’s address. California Capital was unable to serve Kroll and dismissed him from the lawsuit.

In April 2011, approximately a year after attempting to serve Hoehn, California Capital requested and obtained a default judgment against Hoehn for $486,528, based on an investigator’s declaration that careless smoking habits caused the fire.

In March 2018, California Capital assigned its rights to the default judgment to Sequoia Concepts, Inc. Based on a May 2018 writ of execution, the sheriff of Placer County, in January 2020, served on Hoehn’s employer an earnings withholding order, placing a lien on Hoehn’s wages in order to begin payment of the default judgment.

In March 2020, Hoehn filed a motion to set aside the default judgment. In a supporting declaration, he stated as follows: He did “not recall receiving or seeing the Summons or Complaint at any time.” Shannon Smith “did not live with” him at the apartment and he “never received a summons or complaint or any legal paperwork from [her] at any time. He “did not receive any request for judgment or notice of a default judgment hearing” in the case. He learned that there had been a default judgment against him in January 2020, when his employer informed him that a lien had been placed on his wages. He promptly contacted an attorney who filed the motion to set aside the default judgment.

Hoehn’s motion sought relief on two theories: (1) the court should exercise its power under section 473(d) to vacate the judgment; and (2) the judgment was obtained by extrinsic fraud or mistake. The trial court, following a long line of appellate court opinions, held that relief under section 473(d) was not available because Hoehn made the motion more than two years after entry of the default judgment. Regarding Hoehn’s second asserted ground for relief, the court concluded that “the fact that the proof of service of summons misidentifies Shannon Smith as a co-occupant” did not “demonstrate that the statement constitutes extrinsic fraud.”

The Court of Appeal affirmed. Relying on Trackman v. Kenney (2010) 187 Cal.App.4th 175 (Trackman) and Rogers v. Silverman (1989) 216 Cal.App.3d 1114 (Rogers) – and rejecting Hoehn’s criticisms of those decisions – the court concluded that relief under section 473(d) was time-barred. It further concluded, like the trial court, that the mistake in service was insufficient to make out a claim of extrinsic fraud that would support equitable relief from a default judgment.

The California Supreme Court reversed in the case of California Capital Insurance Co. v. Hoehn -S277510 (November 2024)

Code of Civil Procedure section 473, subdivision (d) provides in relevant part that a court “may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” Under this provision, a party may move to vacate a judgment on the ground of improper service of process.

A line of decisions, followed by the Court of Appeal has held that such motions must be made within a “reasonable time” if the challenged judgment is not void on its face and its invalidity must be established by extrinsic evidence. To set the outer limit for what constitutes a reasonable time, courts have borrowed the two-year time limit of section 473.5, which applies where proper constructive service was given but the defendant did not receive actual notice.

The California Supreme Court granted review in this case to decide whether these decisions are correct. It held that they are not, and said that this judicially created rule finds no footing in the statute’s text, has not been adopted by the Legislature, and lacks any sound justification.

The Supreme Court therefore reversed the Court of Appeal’s judgment.

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CWCI Analyzes the Impact of Inflation on OMFS

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A new California Workers’ Compensation Institute (CWCI) analysis that examines how medical inflation impacts allowable fees under the California workers’ compensation Official Medical Fee Schedule (OMFS) finds that physician and non-physician practitioner service fees represent more than half of treatment payments in the system and that differences in inflationary factors used between OMFS and Medicare explain the growing differential between California workers’ compensation and Medicare rates for professional services.

The new analysis focuses on the price indices used to adjust various OMFS payment rates. Maximum fees for different types of medical services provided to injured workers in California are regulated by the OMFS, but each OMFS section uses distinct rules for payment calculation and different inflation factors to update payment rates. For example, the Inpatient, Outpatient Facility, Ambulatory Surgical Center, Ambulance Service, and the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) sections of the fee schedule use Medicare’s inflationary factors, and the cumulative percentage increase in the OMFS inflationary factors for these fee schedules has been lower than economy-wide inflation. But over the past decade, inflationary adjustments for the OMFS conversion factor used to calculate fees in the Professional Services section of the schedule, which account for 53 percent of California workers’ compensation medical care payments, have not aligned with Medicare, as in 2015 Medicare suspended use of the Medicare Economic Index (MEI), a measure of inflation faced by physicians with respect to their practice costs and wage levels, and shifted to statutory changes set by the U.S. Congress.

In contrast, in California workers’ compensation, use of the MEI remains mandated by statute. From 2015 to 2019, statutory annual adjustments to the Medicare conversion factor were minimal (0.5 percent), and the state Division of Workers’ Compensation did not adopt them, but from 2021 to 2024, Congress mandated increases ranging between 1.25 percent and 3.75 percent per year for Medicare, which the state incorporated into the OMFS along with the MEI adjustments. As a result, the OMFS conversion factor as a percentage of Medicare for professional services rose from 124.4 percent in 2017 to 145.7 percent in 2024.

In addition to the inflation adjustments, each year fee schedule rates (e.g., price levels) are affected by changes in other factors including:

– – the Relative Value Units used in the Resource-Based Relative Value Scale system to quantify the complexity and resources required for medical services;
– – the weights assigned to Diagnosis-Related Groups which are used to classify patients based on their principal diagnosis, surgical procedure, age, presence of comorbidities, complications and other factors;
– – the weights assigned to the Ambulatory Payment Classification for hospital outpatient services; and
– – geographic adjustment variables (like Geographic Practice Cost Indices and wage indexes).

CWCI notes that while fee schedule rates set the maximum reimbursable fee for each service, average payments for physician services are also influenced by changes in utilization, service mix, and discounting practices.

CWCI has published its analysis of the impact of inflation on OMFS fees in a Report to the Industry which is available for free under the Research tab on the Institute’s website at www.cwci.org.

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Think Tank Study Says U.S. Spent $2B for Unnecessary Spine Surgeries

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The Lown Institute is an independent think tank advocating bold ideas for a just and caring system for health. The Lown Hospitals Index, a signature project of the Institute, is the first ranking to assess the social responsibility of U.S. hospitals by applying measures never used before like racial inclusivity, avoidance of overuse, and pay equity.

As many as 30 million people receive medical care for a spine problem each year. While surgery is an appropriate treatment option for some, many procedures are performed despite little to no evidence of benefit, and they come with risks. Possible complications include infection, blood clots, stroke, heart and lung problems, paralysis, and even death.

In this current study, hospital overuse was measured using Medicare fee-for-service and Medicare Advantage claims data for three years of the most recently available data (2020-2022 for fee-for-service and 2019-2021 for Medicare Advantage).

Spinal fusion and/or laminectomy was defined as overuse for patients with low-back pain if they did not have radicular symptoms, trauma, herniated disc, discitis, spondylosis, myelopathy, radiculopathy, radicular pain or scoliosis. Spinal fusion-only cases were not considered overuse for patients with stenosis with neural claudication and spondylolisthesis. Laminectomy-only cases were not considered overuse for patients with stenosis who had neural claudication. Vertebroplasty was defined as overuse for patients with spinal fractures caused by osteoporosis, excluding patients with bone cancer, m- yeloma, or hemangioma.

Researchers examined hospital data for common back surgeries, including spinal fusion, laminectomy, and vertebroplasty, for which clinical trials have repeatedly shown lack of benefit for certain patients. Patients with low-back pain caused by aging (excluding cases with neurologic symptoms, trauma, or structural abnormalities) receive little to no benefit from spinal fusion or laminectomy. Patients with spinal fractures caused by osteoporosis (excluding cases with bone cancer, myeloma, or hemangioma) receive little to no benefit from vertebroplasty.

Key Takeaways Include:

– – More than 200,000 procedures met criteria for overuse and are estimated to have cost Medicare around $2 billion over a three-year period.
– – On average, 14% of spinal fusions/laminectomies met criteria for overuse, with individual hospital overuse rates ranging from less than 1% to more than 50%.
– – On average, 11% of patient visits for osteoporotic fracture resulted in an unnecessary vertebroplasty, with individual hospital rates of overuse ranging from zero to 50%.
– – New Hampshire, Iowa, Massachusetts, and Pennsylvania had the highest overuse rates of spinal fusion/laminectomy with rates over 18%. Arkansas, Kansas, Oklahoma, and Nevada had the highest overuse rates of vertebroplasty, with rates over 16%.
– –  California overuse rate for Vetebrosplasty was 7.3% and was 13.4% for Spinal Fusion/Laminectomy.
– – U.S. News Honor Roll hospitals had varied performance. At Cleveland Clinic fewer than 1% of patient visits with osteoporotic fracture resulted in an unnecessary vertebroplasty, compared to nearly 20% at Mayo Clinic Phoenix.
– – A total of 3,454 physicians performed a measurable number of low-value back surgeries. Over three years, these physicians received a total of $64 million from device and drug companies for consulting, speaking fees, meals, and travel, according to Open Payments data analyzed by Conflixis.

Mount Nittany Medical Center in Pennsylvania has the highest rate of unnecessary spinal fusion/laminectomy in the nation at 62.8%. The hospital performed 535 procedures with 336 of them meeting criteria for overuse. Lown’s research also found that a single physician is responsible for 92% (308) of those overuse procedures.

Notable variation in spinal fusion/laminectomy overuse rates are present even among the nation’s most prestigious hospitals, including those on the U.S. News & World Report Honor Roll for America’s Best Hospitals. At UC San Diego (1.2% overuse rate), the hospital performed 783 procedures with only 15 meeting criteria for overuse. While at the Hospital of the University of Pennsylvania (32.6% overuse rate), 641 procedures were performed with 209 meeting overuse criteria.

According to a study published by Journal of Family Medicine and Primary Care, the side effects and risks associated with the medical intervention are called iatrogenesis. Iatrogenesis is composed of two Greek words, “iatros,” which means physicians and “genesis,” which means origin. Hence, iatrogenic ailments are those where doctors, drugs, diagnostics, hospitals, and other medical institutions act as “pathogens” or “sickening agents.”

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Decline in WC Opioid Use Outpaced Decline in Overall Population

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The decline in opioid use in California workers’ compensation has outpaced the decline among the state’s overall population according to a new California Workers’ Compensation Institute (CWCI) analysis of 2017-2023 opioid prescription data from the California Department of Justice’s Controlled Substance Utilization Review and Evaluation System (CURES) database.

The analysis builds on prior CWCI studies by tracking multiple opioid utilization metrics, noting the percentage change in the number of opioid patients over the study period, changes in the average strength of the daily dose of morphine equivalents (the “morphine equivalent dose” or MED), and the average duration of opioid use for workers’ comp opioid patients. Duration of use and MED level are highly correlated with addiction and harmful side effects of opioids, including overdose and overdose-related death. The study also compares these metrics to opioid treatment guidelines to identify the proportion of patients whose opioid use exceeded guideline recommendations and how these proportions changed over time.

Key findings include:

– – Nearly 22.3 million Californians were prescribed opioids between 2017 and 2023, with workers’ comp patients accounting for 1.1% of that total. The number of Californians who were prescribed opioids each year fell 34% from 6.8 million in 2017 (17.3% of the population) to 4.5 million in 2023 (11.5% of the population), while the number of workers’ comp patients prescribed opioids fell 62% from 91,620 in 2017 to 34,744 in 2023.

– – Breaking the opioid utilization results out by level of patient acuity showed that:

– – – – The number of acute opioid workers’ comp patients (<30 days of opioid use) declined an average of 9.2% per year vs. 4.9% for all acute California opioid patients.

– – – – The number of subacute opioid workers’ comp patients (30-89 days of opioid use) declined an average of 12.6% per year vs. 9.8% for all subacute California opioid patients.

– – – – The number of chronic opioid workers’ comp patients (90 or more days) declined an average of 10.6% per year vs. 6.3% for all chronic California opioid patients.

– – Over the study period the average daily morphine equivalent dose for workers’ comp patients declined across the board, falling 26% for chronic patients, 23.6% for acute patients, and 17.6% for subacute patients. The proportion of new acute workers’ comp patients that exceeded the recommended 50 MED per day threshold fell by 9.9 percentage points and the proportion that was within the 20-50 MED range rose by 13.3 percentage points.

– – The proportion of new acute workers’ comp patients receiving opioid prescriptions that exceeded the recommended 5-day supply decreased by 8.2 percentage points during the study period, with 2/3 of that decrease occurring in 2018, immediately after the state incorporated Pain Management and Opioid Treatment Guidelines into the Medical Treatment Utilization Schedule (MTUS) and implemented the MTUS Formulary.

– – Among chronic workers’ comp patients, the share of total days’ supply with an MED over 50 dropped from 27.1% in 2017 to 21.3% in 2023.

– – During each calendar year in the study period, most workers’ comp chronic opioid patients also received opioid prescriptions from other payer systems, but the percentage of those patients who received opioids from both workers’ compensation and other systems declined from 72.1% in 2017 to 68.7% in 2023.

– – From 2017-2023, the total daily morphine equivalent dose (from all payers) for workers’ compensation patients declined by 17.1 MED. The portion of the MED covered by workers’ comp declined by 8.4 MED or 24.1%, the portion covered by other payers declined by 8.6 MED or 32.6%.

– – A declining share of workers’ compensation opioid patients had prescriptions in which their days’ supply of opioids from other payers overlapped with their workers’ comp prescriptions. The proportion of days’ supply that overlapped multiple systems declined from 8.0% in 2017 to 3.7% in 2023, so it appears that the declines in opioid utilization in workers’ comp did not lead to increased opioid use in other systems.

While opioid use nationwide has declined across different health care systems, the steep decline in California workers’ compensation, which the CWCI study shows exceeded the decline noted for the general population, reflects the success of reforms enacted over the past two decades. These included a mandate that medical care provided to injured workers conform to evidence-based treatment standards; the addition of Chronic Pain and Opioid Guidelines into the MTUS; implementation of the MTUS Formulary; a requirement that opioid dispensers enter prescription and patient information into CURES within one day of dispensing the drug; and a requirement that doctors check CURES before prescribing a controlled substance to a patient for the first time, and at least once every four months when continuing to prescribe the drugs to the patient.

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Four SoCal Residents Arrested for Faked Bear Attacks and Insurance Fraud

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Four Los Angeles area residents were arrested after a Department of Insurance investigation found the suspects allegedly committed insurance fraud by claiming a bear had caused damage to their vehicles, but it was actually a person in a bear costume.

Ruben Tamrazian, 26, of Glendale, Ararat Chirkinian, 39, of Glendale, Vahe Muradkhanyan, 32, of Glendale, and Alfiya Zuckerman, 39, of Valley Village, have all been charged with insurance fraud and conspiracy.

The Department’s investigation began after an insurance company suspected fraud. The suspects claimed on January 28, 2024 in Lake Arrowhead a bear entered their 2010 Rolls Royce Ghost and caused interior damage to the vehicle. They provided video footage to their insurance company, which showed the alleged bear in the vehicle.

Upon further scrutiny of the video, the investigation determined the bear was actually a person in a bear costume.

Detectives found two additional insurance claims with two different insurance companies, for the suspects with the same date of loss and at the same location. Each of those claims involved two different vehicles, a 2015 Mercedes G63 AMG and a 2022 Mercedes E350, and the suspects again appeared to use a bear costume to make it appear that a bear also entered and damaged those vehicles. They provided the video footage to the other insurance companies as well to substantiate their claims.

To further ensure it was not actually a bear in the video, the Department had a biologist from the California Department of Fish and Wildlife review the three alleged bear videos and they also opined it was clearly a human in a bear suit. After executing a search warrant, detectives found the bear costume in the suspects’ home.

The insurance companies were defrauded of $141,839, because of the alleged fraud committed by the suspects. Department detectives were assisted by the Glendale Police Department and the California Highway Patrol. The San Bernardino County District Attorney’s Office is prosecuting this case.

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Fresno County Man Indicted for Falsified Disability Insurance Claims

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U.S. Attorney Phillip A. Talbert announced that a federal grand jury returned an eight-count indictment against Leonel Hernandez, 51, of Parlier, charging him with mail fraud.

According to court documents, Hernandez was employed as a supervisor for a farm labor contractor in Sanger. Between March 2017 and October 2020,

Hernandez submitted falsified disability insurance claims using identities of individuals known to him, including some who were already deceased and some who were farm laborers in Sanger or Fresno.

Hernandez forged physician signatures on the disability insurance claim forms, falsely certifying that the physicians had examined the claimants and falsely certifying other medical information that was allegedly obtained through such examinations. Hernandez used the U.S. mail to submit at least 20 claims and caused losses exceeding $300,000.

If convicted, Hernandez faces a maximum statutory penalty of 20 years in prison and a $250,000 fine. Any sentence, however, would be determined at the discretion of the court after consideration of any applicable statutory factors and the Federal Sentencing Guidelines, which take into account a number of variables. The charges are only allegations; the defendant is presumed innocent until and unless proven guilty beyond a reasonable doubt.

This case is the product of an investigation by the Federal Bureau of Investigation and the California Employment Development Department. Assistant U.S. Attorneys Chan Hee Chu and Joseph Barton are prosecuting the case.

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DOJ Sues to Stop UnitedHealth’s Proposed $3.3B Merger With Amedisys

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UnitedHealth Group Incorporated is an American multinational health insurance and services company based in Minnetonka, Minnesota. Selling insurance products under UnitedHealthcare, and health care services under the Optum brand, it is the world’s eleventh-largest company by revenue and the largest health care company by revenue.

It was founded in 1977, UnitedHealth Group has grown significantly through strategic acquisitions and organic growth. Its focus on innovation, data-driven insights, and integrated care delivery models has positioned it as a major player in the healthcare industry.

In 1988, United HealthCare started its first pharmacy benefit management, through its Diversified Pharmaceutical Services subsidiary. It managed pharmacy benefits delivered both through retail pharmacies and mail. The subsidiary was sold to SmithKline Beecham in 1994 for $2.3 billion.[

In 1994, United HealthCare acquired Ramsey-HMO, a Florida insurer. In 1995, the company acquired The MetraHealth Companies Inc. for $1.65 billion. MetraHealth was a privately held company formed by combining the group healthcare operations of The Travelers Companies and MetLife. In 1996, United HealthCare acquired HealthWise of America, which operated HMOs in Arkansas, Maryland, Kentucky and Tennessee.

In 1998, the company was reorganized as the holding of independent companies UnitedHealthcare, Ovations, Uniprise, Specialized Care Services and Ingenix, and rebranded as “UnitedHealth Group”. Also in 1998, United Health Group acquired HealthPartners of Arizona, operator of Arizona’s largest AHCCCS provider

Over the following 25 years UnitedHealth continued these aggressive acquisition and merger strategies. More recently, in February 2022, UnitedHealth announced the acquisition of Change Healthcare, the largest health payments platform in the US, which the US Justice Department tried to block on antitrust grounds; the sale went through by September. But inn February 2024, the subsidiary was brought completely down by the 2024 Change Healthcare ransomware attack, and the Justice Department announced that it was opening a new antitrust and Medicare overcharging probe.

The company is ranked 8th on the 2024 Fortune Global 500.and had a market capitalization of $474.3 billion as of July 15, 2024. The company has a substantial impact on the U.S. healthcare system. Its scale and influence allow it to negotiate favorable contracts with healthcare providers, pharmaceutical companies, and medical device manufacturers. The company has also been at the forefront of initiatives to improve healthcare quality, reduce costs, and enhance patient outcomes.

In recent years, UnitedHealth Group has been actively expanding its global footprint and investing in emerging technologies like artificial intelligence and telemedicine. And it has recently proposed a $3.3 billion acquisition of Amedisys, a leading home health and hospice care provider. This deal aims to expand UnitedHealth’s presence in the home care market and integrate it with its existing healthcare services.

Founded in 1982, Amedisys has grown steadily over the years through organic growth and acquisitions. The company has a significant presence in the U.S., with operations in 37 states and the District of Columbia. Amedisys employs over 21,000 individuals and serves millions of patients annually.

However, Amedisys has been involved in legal disputes and regulatory scrutiny, including allegations of fraud and improper billing practices. The company has also faced challenges related to reimbursement rates and staffing shortages.

In 2023, Amedisys agreed to be acquired by Optum, a subsidiary of UnitedHealth Group, in a deal valued at $3.3 billion. And the U.S. Department of Justice (DOJ) and several states have filed a lawsuit this month in the United States District Court for the District of Maryland to block the deal, arguing that it would reduce competition and harm consumers. O

“We are challenging this merger because home health and hospice patients and their families experiencing some of the most difficult moments of their lives deserve affordable, high quality care options,” said Attorney General Merrick Garland in a statement following the complaint’s filing in Maryland federal court.

To address some of the overlaps between UnitedHealth and Amedisys, UnitedHealth has proposed to divest certain facilities to VitalCaring Group (VitalCaring). But as the complaint alleges, the proposed divestiture does not alleviate harm in over 100 home health, hospice, and labor markets, which generate at least a billion dollars in revenue annually, serve at least 200,000 patients, and employ at least 4,000 nurses.

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NCCI’s Annual Comp Carrier Survey Shows Strong & Healthy System

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The National Council on Compensation Insurance (NCCI) recently conducted a comprehensive survey of more than 100 workers compensation executives addressing key issues for 2025.The financial health of the workers compensation system, medical inflation, economic uncertainty, and the shifting workplace and workforce continue to be top concerns for industry executives, a recent survey reveals.

“Each year, our Carrier Executive Survey captures the pulse of the industry and helps us pinpoint key issues facing workers compensation stakeholders,” remarked Bill Donnell, President and CEO of NCCI. NNCCI said it is dedicated to staying ahead of emerging trends and equipping stakeholders with data and insights to make informed decisions for the future.

The survey report highlights two key concerns that appear more than any others:

First: Financial Health of the System – Will There Be a Turn?

This and other related questions are common from inquiring stakeholders. All metrics point to a healthy and strong system, as evidenced by nearly a decade of combined ratios below 90%.

Preliminary results for 2024, based on National Association of Insurance Commissioners data through midyear, suggest another strong year with a combined ratio of 90% or below. Improvements in safety and automation have contributed to nearly 20 years of frequency decline in states where NCCI provides ratemaking services.

NCCI expects this trend to continue.

Secondly: Medical Inflation.

“Industry stakeholders consistently name medical inflation as a top concern, and this year, it is more prevalent than ever. Currently, medical inflation and its impact on workers comp is moderate and in the range of 2.5-3.5%. Medical inflation behaves differently in workers compensation compared to the broader economy.

There are two main considerations when evaluating medical inflation and its impact on workers compensation.

– – Fee schedules are a major factor in keeping workers compensation (WC) medical costs in control. These state-mandated cost containment mechanisms put limits on WC payments to healthcare providers and how much those payments can change from one year to the next.
– – Medical inflation in WC is different than medical inflation in the broader economy. Consider the different types of injuries and treatment in WC – the differentiation matters. The categories of treatment are also weighted differently. It’s important to look behind the numbers, as NCCI has identified in the Workers Compensation Weighted Medical Price Index.

NCCI’s annual Carrier Executive Survey is part of its ongoing communication efforts that identify key issues facing workers compensation stakeholders. This year’s survey highlights familiar top concerns and other emerging issues like legalization of medical marijuana, how climate impacts workers, and the evolving regulatory and legal landscape.

For more information, view NCCI’s Focus on Top Industry Concerns. These and other important issues will be addressed at NCCI’s Annual Insights Symposium 2025.

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Arbitrator’s Award is Not Final or Appealable Until it Resolves All Issues

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In February 2013, Jose de Jesus Ortiz was admitted to Elmcrest Care Center, LLC, a skilled nursing facility. He suffered from Parkinson’s disease, dysphagia, and dementia; he had a history of falling; and he was on an advanced dysphagia diet.

On August 4, 2017, staff at Elmcrest found the Ortiz on the floor and nonresponsive. They administered CPR and called 911. Paramedics later transported him to a hospital, where he passed away four days later. He was 63 years old.

Plaintiff Ericka Ortiz, as personal representative and administrator of the Estate of Jose de Jesus filed a civil action against Elmcrest and the individual staff members, asserting causes of action for elder abuse and neglect; negligence/willful misconduct; and fraud. The operative pleading alleged that, as result of Respondents’ failure to provide basic and necessary care to the decedent, he suffered a fall from his bed that led to suffocation, deprivation of oxygen to his brain, and respiratory arrest.

The trial court granted Elmcrest’s motion to compel the Estate to arbitrate its claims based on an agreement the decedent executed upon his admission to Elmcrest. On March 30, 2022, after a 15-day arbitration hearing, the arbitrator served the parties with a 90-page document entitled “Interim Award” (the First Interim Award)

The First Interim Award concluded with the arbitrator’s liability determinations on all causes of action and set forth conditions for further proceedings before the award would become final. The Award stated that the Estate “did not sustain her burden of proof as to the first cause of action for Elder Abuse and Neglect, the third cause of action for Negligence/Willful Misconduct[,] and the sixth cause of action for Fraud.” And it provided “This Interim Award will become final twenty days after service unless either side (a) points out in writing an omission to decide a submitted issue or (b) moves for further relief authorized by the law and the parties’ Arbitration Agreement.”

On May 26, 2022, the arbitrator served the parties with “Interim Award No. 2” (the Second Interim Award). The Second Interim Award reaffirmed that the Estate “did not sustain its burden of proof as to the third cause of action for Negligence/ Willful Misconduct” and “did not sustain its burden of proof as to the sixth cause of action for Fraud.” However, as to the “first cause of action for Elder Abuse/Neglect,” the Second Interim Award found the Estate had “sustained its burden

On July 6, 2022, the Estate petitioned the trial court to vacate the First Interim Award. Among other things, the Estate argued the First Interim Award was not final and had been superseded by the Second Interim Award.

On September 7, 2022, the Arbitrator issued a “Final Award,” awarding the Estate $100,000 in damages on the elder abuse claim, $208,035 in attorney fees, and $92,921.77 in costs. Unlike the First Interim Award, this award placed no conditions on finality. It stated: “This Award is binding and is intended to address all issues in dispute even if not expressly discussed herein. The Arbitrator is not empowered to redetermine the merits of any claim already decided. [¶] This Award may be presented to the Court pursuant to CCP §1285 et seq.”

On September 30, 2022, the Arbitrator issued a “Final Award (Corrected),” again awarding $100,000 in damages and $92,921.77 in costs (the Final Award). The Final Award corrected a miscalculation related to the lodestar and multiplier to award the Estate $207,000 in attorney fees.

On December 14, 2022, Elmhurst filed a petition to vacate the Final Award. The same day, the Estate filed a petition to confirm the Final Award. the trial court entered an order (1) denying the Estate’s petition to confirm the Final Award and (2) granting Respondents’ petitions to vacate the Final Award and to confirm the First Interim Award.

On May 2, 2023, the trial court entered its order vacating the Final Award and confirming the First Interim Award. The Estate filed a timely appeal. The Court of Appeal reversed and vacated the order with directions to enter a new order confirming the final arbitration award served on September 30, 2022 in the published case Ortiz v. Elmcrest Care Center, LLC -B330337 (November 2024).

The California Arbitration Act (§§ 1280-1294.4; the Arbitration Act) represents a comprehensive statutory scheme regulating private arbitration in this state. Section 1283.4 specifies the requisite “form and contents” of an arbitration award. The statute provides the “award shall be in writing,” “signed by the arbitrators concurring therein,” and it “shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.” (§ 1283.4.)

The issuance of an ‘award’ – meeting the requirements of section 1283.4 “is what passes the torch of jurisdiction from the arbitrator to the trial court.” (Lonky v. Patel (2020) 51 Cal.App.5th 831, 843- 844. Thus, it is incumbent on the trial court, before confirming or vacating what has been deemed an award, ‘to ensure that the “award” is an “award” within the meaning of [section 1283.4].

Two points of law were critical to the resolution of the issues on appeal: (1) a ruling is an “award” under the Arbitration Act only if it determines all questions submitted to the arbitrator that are “necessary in order to determine the controversy” and (2) it “is for the arbitrators to determine which issues were actually necessary to the ultimate decision in deciding whether a ruling constitutes an award under the statute.

Here, as in Lonky, the arbitrator could have made a final determination that she had addressed all necessary issues when she served the parties with the First Interim Award. She did not. Instead, she expressly deferred final disposition of the matter until 20 days had lapsed or, in the event either party identified an omitted issue or moved for further relief, until she issued a later ruling after additional briefing.

“By its terms, the First Interim Award was not a final ‘award’ as defined in section 1283.4 because, in issuing the ruling, the arbitrator expressly reserved for further proceedings her ultimate decision on whether all questions necessary to a determination of the controversy had been resolved and whether either party was entitled to further relief.”

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RFK Jr. Recommends Replacing 600 National Institute of Health Employees

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The National Institutes of Health (NIH) is the primary agency of the United States government responsible for biomedical and behavioral research. Its mission is to seek fundamental knowledge about the nature and behavior of living systems and 3 the application of that knowledge to enhance health, lengthen life, and reduce illness and disability.

The NIH funds a wide range of research projects, from basic science to clinical trials, conducted by scientists at universities, medical schools, and other research institutions around the country.It funds more biomedical research than any other public institution in the world, dedicating 91 percent of its $49 billion budget to research both inside and outside the agency. However, Congress has not thoroughly reviewed NIH operations and practices since the 21st Century Cures Act passed in 2016, nearly a decade ago.

An now after the presidential election, there is an abundance of media speculation that the NIH is under the cross hairs of the upcoming Donald Trump presidency. The agency has historically enjoyed bipartisan support, Trump proposed cutting its budget during his first term.

“I do think you probably will see changes in NIH, as well as other public health agencies like CDC and maybe even FDA,” says Dr. Joel Zinberg, a senior fellow at the Competitive Enterprise Institute and director of the Public Health and American Wellbeing Initiative at the Paragon Health Institute, both conservative think tanks. “And that’s primarily I think because there was a real erosion in trust in those agencies during the pandemic,” he says.

And shaking up the NIH has fans. Robert F. Kennedy Jr., a vocal critic of mainstream medicine, has President-elect Donald Trump’s ear. According to a report by NPR, over the weekend, Kennedy said he’d like to immediately replace 600 NIH employees. “We need to act fast, and we want to have those people in place on Jan. 20 so that on Jan. 21, 600 people are going to walk into offices at NIH, and 600 people are going to leave,” Kennedy said while speaking at the Genius Network Annual Event in Scottsdale, Ariz.” As of September 30, 2021, the NIH had 18,718 employees, according to its website.

Kennedy previously proposed in a Wall Street Journal op-ed that half of NIH’s research budget should be spent on “preventative, alternative and holistic” medicines. He has also said he will clear out “entire departments” of the U.S. Food and Drug Administration (FDA) if given a place in Trump’s administration, as the former president has repeatedly promised.

Earlier this year, U.S. Senator Bill Cassidy, M.D. (R-LA), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, released a white paper detailing proposals to improve the National Institutes of Health (NIH). Last year, Cassidy requested feedback from stakeholders on policies Congress could consider to modernize NIH.

The report also examined how the United States can sustain its advantage in biomedical research to ensure Americans receive the most innovative treatments as quickly as possible. Cassidy laid out several proposals to address this, including streamlining peer review of research, and addressing challenges in recruiting and maintaining our biomedical workforce. He also highlighted the importance of robust collaboration between NIH, public health and health care institutions, and the private sector in identifying how NIH policies can be adapted to most effectively support potentially transformative research.

Additionally, many stakeholders noted that NIH has failed to convene the Scientific Management Review Board (SMRB), an advisory board required by Congress to provide feedback on agency structure and operations. This lack of transparency combined with declining public trust in the agency during the COVID-19 pandemic underscores the need for greater accountability. In the report, Cassidy emphasized the need for NIH to enhance transparency, including reestablishing SMRB and creating an apparatus allowing public input on agency practices.

Nonpartisan watchdogs, such as the Department of Health and Human Services Office of the Inspector General (HHS OIG), have also found deficiencies in NIH oversight of its extramural grants. Cassidy recommends holding NIH accountable to carry out its grants management responsibilities while balancing more effective oversight with reducing unnecessary burden on researchers.

And conservative think tanks like the Heritage Foundation have been floating long to-do lists for changing the NIH.

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