RSCR Inland, Inc. v. State Department of Public Health (Nov. 15, 2019, E067614) __ Cal.App.5th __ [2019 WL 6112497]

The “reasonable licensee defense” excuses a licensee who violates (but acts reasonably to comply with) a regulation or statute.

A resident at ResCare, a long-term health care facility, developed a history of maladaptive and self-injurious behavior. However, his physicians did not classify him as a suicide risk and did not order any special measures beyond medication. Although ResCare had nursing care and behavior plans in place and monitored the resident frequently, he choked to death on a small towel left within his reach. The Department of Public Health cited ResCare for violating two regulations (Cal. Code Regs., tit. 22, §§ 76918, subd. (a), 76875, subd. (a)(2)) by failing to ensure that the resident was free from neglect and protected from injuring himself. ResCare sued the Department to challenge the citation. The trial court ruled that the Department had proved the elements supporting the citation because the nursing care plan had not been followed in several respects. The trial court also rejected ResCare’s argument that the Department had failed to comply with a statutory exit conference requirement. The trial court nevertheless dismissed the citation after finding that ResCare had established the “reasonable licensee defense”—it “did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply with the regulation[s]” (see Health & Saf. Code, § 1424, subd. (c))—because it had been attentive to the resident and attempted to ensure his safety. The Department appealed.

The Court of Appeal affirmed, rejecting the Department’s narrow construction of the “reasonable licensee defense” that would limit its application to noncompliance justified by an emergency or special circumstances beyond the licensee’s control, or where compliance would create a greater risk of harm. As the court explained, the defense may be asserted when both the licensee and its agents act reasonably to comply with pertinent regulations or statutes. Here, substantial evidence supported the trial court’s determination that ResCare and its agents acted reasonably, even though the direct care staff did not implement the nursing care plan perfectly and their efforts to eliminate all potential choking hazards were unsuccessful. 

The bulletin describing the Court of Appeal’s decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission. For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.