You Messed with the Wrong Marine

How elder abuse litigation attorney Kimberly Valentine transcended a tough upbringing to become a voice for the vulnerable

Published in 2016 Southern California Super Lawyers — February 2016

Q: You hung a shingle in 2012. What made you take that step?

A: I do elder abuse litigation and I’m very selective about the cases I take.

 

Q: Selective how?

A: The ideal case for me is where I can develop this fantastic relationship with a caring family who did everything they could do to provide for the best interest of their—usually—parent. They trusted that the right thing was going to happen, and the right thing did not happen, and their family member ended up being neglected.

Honestly? I usually take them if I feel the defendants are just bad people. If I were to make a list of my key selection criteria, number one is, “Is the defendant bad?” and number two is, “Are the plaintiffs great?” Because even if I have great plaintiffs, if the defendants are good people who just had a bad day, that’s not going to be a seven-figure case in the wrongful death of an 89- or 90-year-old person. I try to have a practice where what I’m doing is fulfilling the principles we stand for.

 

Q: Which are?

A: We’re trying to get rid of the bad apples. In the world of elder care, those bad apples are going to be the factor that we all have to take into consideration as we get older.

 

Q: So what causes bad elder care? Is it profit-driven?

A: Yes, it’s profit-driven. Every defendant in my industry would disagree, but yeah, it 100 percent is. There is a way to provide good care. There are companies doing that. But their profit margin is less because they understand that in order to provide good care, you need to have qualified, trained and sufficient staff to meet the needs of the residents.

Unfortunately, some of the bigger companies work very much on staffing grids and staffing ratios where they’re not taking into consideration the acuity of the patients. There are some companies out there that market for the highest acuity patients—the sickest of the sick—but they staff the facility at the same level as other facilities. The stuff we see is pretty awful.

 

Q: Is there a case that stands out as particularly egregious?

A: Almost every one of my cases fits that bill. I have a current case that is against a very large company. That’s the other thing: The parent corporation, which is generally a publicly traded company, creates layers between itself and the facilities; they can then claim that they had nothing to do with the running of the facility. Whenever I’m dealing with a corporate defendant, I spend 70 percent of the case arguing and fighting over the corporate portion of it—as opposed to the factual portion of what happens on a day-to-day basis.

This case is one of the examples where the company markets for the highest acuity patients, yet they’re providing a 1-to-10 staffing ratio for [certified nursing assistants]. The staff starts complaining, “This is not working, we can’t meet the needs of these residents.” In the meantime, because new laws passed, they’re now having to report what their in-house, acquired bed sores are. They have to report these to the state if they go above a certain stage, and the state comes in to do what’s called a Self-Report Inspection, which turns into a full-blown investigation. My patient is admitted in the midst of all this.

The types of things the state found: Employees were charting that they were repositioning patients when they weren’t. In some instances, there were hours and hours where they didn’t turn and reposition some patients, and the staff was telling the state surveyors, “We just don’t have enough time. We keep complaining; nothing ever changes.”

 

Q: It wasn’t employee incompetence; it was a drive for greater profit.

A: Right. Corporate is doing its own mock surveys in the facility, and they’re still having all of these problems. Now they need a fall guy. So they fire these two top nurses in the facility, who ultimately sue them for wrongful termination, and who lay out in black and white all of the issues they had. Emails are discovered between these corporate people, which acknowledge that they absolutely knew what was going on in this facility.

Meanwhile, my poor guy develops 14 bed sores while he’s in the facility. He has this G-tube that keeps dislodging because the staff, when they’re moving him, they don’t take the time to do it properly. He eventually ends up dying. He hemorrhages from his G-tube from the fistula that developed because they kept popping it out. That just doesn’t happen unless there’s absolute failure to pay attention.

That’s just one of the examples of some of the types of cases we work on.

 

Q: In cases where you’re trying to tie accountability to the corporation, how often can you do it?

A: I would say 90 percent. You start asking them difficult questions—like who’s creating the budgets and who’s creating the staffing ratios? It gets to the point where they’re like, “It’s not me.” “Well then, who is it?” “Well, I don’t know.” “Well, who would you ask?” I keep working my way, slowly but surely, up this corporate chain. For them, the goal is to stall. For us, the goal is to be on top of it, 100 percent all the time, guns a-blazing every day. That’s why we can only do a small number of cases.

You can’t dabble in this. My core team is the same core team I’ve had for a long time. We’re a pretty well-oiled machine. Usually they test us, and once we get to the point where they’re like, “Oh, she’s really getting to the corporate level,” sometimes the cases settle because they don’t want to run the risk [of going before a jury].

 

Q: Are there cases so egregious that you want to go to trial because you want to expose the bad behavior?

A: My ethical obligation is to my present client, it’s not to the public at large, even though my personal motivation is that I want to expose the bad that’s out there.

 

Q: How did you get into elder law?

A: I worked for this great law firm: Horton, Barbaro, Reilly. Jay Horton is a famous mediator now and he was my boss, then Frank Barbaro was my boss. Great, great lawyers. And I got a case that I worked on with them. It came to us as a medical malpractice case, but the gentleman who died was much older—86 years old, if I remember correctly. We have these microcaps in California where your life is not worth more than $250,000, so people were like, “This case is going to be worth about $100,000 because he’s 86 and who cares?” And I’m like, “Really? That can’t be.” I was totally outraged. My nature is to be the voice and advocate for a vulnerable class of people. I’m privileged that I get to represent the elderly because they need a voice.

 

Q: Why the law in general?

A: [As a paralegal] I would get frustrated because I would tell my boss how I wanted him to go into these depositions and into trial, and I would lay out how I wanted him to ask the questions. I felt very much that if you ask the 10 precursor questions, by the time you get to the big question you’ve caught them and there’s no way they can say anything other than the answer you need them to. But he would start with the big whammy question and they’d say whatever they wanted. Eventually, I thought, “OK, you need to just ask it yourself.”

 

Q: And as for becoming a paralegal?

A: When I was in the Marine Corps, I was sitting at my desk and one of my co-Marines came up and said, “I think I might go to paralegal school,” and I was like, “What’s that?” and he’s like, “It’s this law-related thing.” So I haphazardly fell into that. I went to paralegal school and on day one I was like, “This is so for me.”

 

Q: When were you in the Marines?

A: I was on active duty from 1986 to 1989 or 1990. Then I was on inactive reserves until I got recalled when we had the Persian Gulf War.

 

Q: Wasn’t that shortly after the Marines first accepted women?

A: I don’t know the answer to that, but I can tell you the ratio of women to men in the Marine Corps was pretty astonishing back in 1986. The guys didn’t like that women were in the Marine Corps and they didn’t have any qualms about telling you. But being in the Marine Corps served me well. You don’t have the luxury to buck the system, so you have to learn to adapt; there is no other option.

 

Q: Any bad incidents?

A: Oh yeah. But the things that are painful to you at the time they are happening are the things that cause you to: a) build character, and b) grow up.

This is kind of a lame example, but it’s a good example. I was in the Marine Corps and I was dating somebody that my First Sergeant didn’t think I should be dating. So he ordered me to not date him. I think, in his weird little head, he thought he was doing me a favor. He told me that he would write me up if I was found to be dating him. He made my life hell.

 

Q: Wow. That’s about the last thing I thought you were going to say.

A: Well, there’s the typical things you would presume I would say, and all of those things happened, too. But I think—and this is going to sound even more awful—those are the things you expect when you sign up. You know you’re going into an environment where there’s a very disproportionate male/female ratio. You know that everyone isn’t going to respect your presence there. I don’t know [if I] appreciated the degree to which there would be such hostility about women in the military. But I don’t let people offend me too easily. I stand up for myself really well.

 

Q: Where did you grow up?

A: Long Beach.

 

Q: What did your parents do?

A: My dad was a fireman and my mom was a homemaker.

 

Q: What’s Long Beach like?

A: There’s some really nice parts of Long Beach and some ghetto parts of Long Beach. I grew up in the ghetto part of Long Beach. I went to some pretty rough schools—again, character-building. I only lived at home until I was 14; I was legally emancipated when I was 16. At one point, I was homeless. I’ve now started this nonprofit, Operation Helping Hands, where we give backpacks to homeless people with hygiene items in them.

 

Q: Were you still going to school when you were homeless?

A: I was for a period of time. But eventually my mom filed a report that declared me a runaway, so I stopped going to school because I was afraid I would go to jail. I was like a straight-A student, student council president, and the next day I was homeless.

 

Q: How did you finish high school?

A: I got a GED. I had a kid when I was 15, and then I was legally emancipated. I was living in a group home and they came on a Monday and told me that I was on my own and emancipated in 12 days, and I didn’t even know what that meant. They said, “You’re going to be declared an adult.” Probably not the most brilliant idea on the planet, but that’s what they did.

 

Q: And then?

A: I went back to Long Beach and the same ghetto life until I went into the Marine Corps.

 

Q: So you went from tough environment to tough environment to the law.

A: I guess you’re seeing this pattern now—why the whole “needing to advocate for vulnerable people” might be the best course of action for me.

 

Q: Yet many people go through those experiences and lose sympathy. They care less about vulnerable people because they got through it all on their own.

A: I did have that phase. I was this very dark and angry person for a while. Then I was about 21 years old and … Actually, this is another fact that is really not relevant to me being a lawyer, but I was adopted at birth. I found my biological mom when I was 21, and it was that lightbulb moment where I was like, “OK, that’s you in 20 years if you don’t change your life.” I just realized all of this darkness and anger I had, and if I didn’t let it go it was going to paralyze me. That’s when I decided to go back to school. I was just going to move forward and do everything that I could to be better than I was the day before. I bought a house at 25. I was just methodical—moving forward to do better.

 

Q: You’re involved with the nonprofit Stop Elder Abuse as well. How did that come about?

A: The co-founder was one of my old clients. Everybody thought that I was crazy for trying the case in the wrongful death of a 104-year-old woman, but I felt like if I did my job properly people wouldn’t care how old she was. It wasn’t about how old she was but about how her life was this very dignified, amazing life, and she had the right to have that same level of dignity in her death.

Her daughter was my client. We tried the case, got a great result. I’d told her that I really wanted to educate people about elder abuse because it’s much more prevalent than people believe. So she went out and developed the 501(c)(3) for that, and together we’ve gone and done talks at American Legions and places like that, where she can talk about her experience being the family member of an elder and I can talk about the legal aspects. I give everybody my email and my cellphone number, and I tell them, “When you’re in this situation …”

Because bad things happen on a moment’s notice. Somebody falls and breaks a hip, then they’re in the hospital, and 48 hours later they have to go to a nursing home and nobody even thought that three days ago. Everybody panics because they don’t know what to do. They don’t know how to look for the bad signs.

 

Q: What are the bad signs?

A: You have to pay attention to how many people are actually assigned to patients. You need to know how many RNs are there because sometimes the facility doesn’t even have an RN on staff on certain shifts. A lot of family members see somebody wearing a uniform and they don’t realize it’s not a nurse. You need to show up at different times, because if you have a set schedule the staff will try to be more accommodating during the time you’re there.

You have to make sure people aren’t developing contractures, where basically muscles are shortening. That should never happen if somebody’s in an institutionalized environment. If the person develops even a stage-one bed sore you better be, like, Johnny-On-It. You want to know what’s happening, what they are doing to prevent it. You want to make sure they are doing the things they tell you they’re doing.

Do you look for physical signs on a person’s body? Bruises? You have to find this balance between trying to maintain the dignity of the elder and yet protect them [from] actual physical abuse.

If they’re not doing the proper hygiene on the patient, that should be a real triggering factor in your mind. Are they really changing their diapers? Are they really cleaning their catheters? I had a penile erosion case where the catheter eroded all the way down, halfway through the shaft of the penis, because they didn’t ever clean it, and they didn’t ever move it. It was there for so long that it literally split open.

The squeaky wheel does get the grease, so if you see something that’s wrong, or you know something that’s wrong, or you expect a realistic execution and it’s not happening, you can’t just tell the nurse. You need to find the head people in the facility: the director of nursing, the administrator. And you need to put it in writing. If you do that, it will freak them out. Then they know you have a record of what it is you’re complaining about; and if you told them and it happens, that’s liability. It’s really simple. You just find the people in charge, you tell them, and you put it in writing.

 

This interview was edited and condensed.

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