Posted On: August 30, 2010

Physicians And Nurses At Sacramento Hospital Subjected Patient To Repeated Elder Abuse, Part 4 of 4

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

The issues in each action are intertwined and incapable of being severed. A single overlapping issue is sufficient to require imposition of a stay of court proceedings pending arbitration. Id. at 1153. In Heritage, an independent practice association ("IPA") sued a healthcare provider network ("Heritage"), two medical groups, and four individual physicians who had terminated their relationship with the IPA and entered into agreements with Heritage. Id. at 1150-1151. For more information you are welcome to contact , Moseley Collins.

The IPA alleged causes of action for (i) breach of contract against the medical groups and the physicians, (ii) inducement of breach of contract against Heritage and one of the medical groups, and (iii) improper disclosure of confidential information and trade secrets against the medical groups. Id. While the physicians successfully moved to compel arbitration of the IPA's breach of contract claims, the trial court denied Heritage's motion to stay the proceedings because there was not enough similar issues to stay the civil litigation while the arbitration's pending. Id. at 1151-1152. The appellate court reversed because it found that at least one issue in the IPA's breach of contract claim against the physicians, which was subject to arbitration, overlapped with issues in its remaining claims against Heritage, such that Heritage was entitled to a stay pending the outcome of arbitration. Id. at 1152-1153.

Continue reading " Physicians And Nurses At Sacramento Hospital Subjected Patient To Repeated Elder Abuse, Part 4 of 4 " »

Posted On: August 29, 2010

Reckless Negligence At Sacramento Post Acute Care Hospital Results In Wrongful Death, Part 3 of 4

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

ARGUMENT

C.C.P. §1281.4 provides, in pertinent part, as follows:

If a court of competent jurisdiction, whether in this state or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this state, the court in which this action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specified.
[...]

If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only. C.C.P. § 1281.4. For more information you are welcome to contact , Moseley Collins.

C.C.P. § 1281.4 is clear and unambiguous. Any party to a judicial proceeding is entitled to a stay of those proceedings whenever (1) the arbitration of a controversy has been ordered, and (2) that controversy is also an issue involved in the pending judicial action. Heritage Provider Network, Inc. v. Superior Court (2008) 158 Cal.App.4th 1146, 1152. A controversy can be a single question of law or fact, and a stay shall be issued upon proper motion if the court has ordered arbitration of a controversy that is also an issue involved in an action or proceeding pending before it. Id. It is irrelevant under the statute whether the movant is a party to the arbitration agreement. Id.

Continue reading " Reckless Negligence At Sacramento Post Acute Care Hospital Results In Wrongful Death, Part 3 of 4 " »

Posted On: August 28, 2010

Cervical Fracture Patient At Sacramento Hospital Subject To Elder Abuse, Part 2 of 4

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

STATEMENT OF FACTS

Plaintiff was admitted to JFK on or about September 25, 2006, for treatment of a cervical spine fracture. He was discharged from JFK on or about October 4, 2006, and transferred to JFK Hospital, Roseville. On or about October 8, 2006, he was transferred to JFK Folsom. In January 2007, he was transferred to JFK Post Acute Care Center, and was then discharged home on or about February 1, 2007.

Plaintiff claims that during his care at these various facilities, defendants failed, inter alia, to monitor his condition and to prevent the development and progression of his pressure ulcers. In connection with these events, he brings causes of action for elder abuse and negligence against JFK and JFK. For relief, he seeks general and special damages, punitive damages, and attorneys' fees from JFK and JFK. The initial Complaint for Damages was filed on September 24, 2007. The First Amended Complaint for Damages was filed on February 20, 2008. The Second Amended Complaint was filed on May 29, 2008. For more information you are welcome to contact , Moseley Collins.

With respect to JFK, Plaintiff was enrolled as a member of JFK Health Plan, Inc. (the "Health Plan"). The Health Plan contains an arbitration provision which requires that all of his claims against JFK be submitted to binding arbitration.

Continue reading " Cervical Fracture Patient At Sacramento Hospital Subject To Elder Abuse, Part 2 of 4 " »

Posted On: August 27, 2010

Sacramento Hospital Tries To Delay Arbitration In Medical Malpractice Case, Part 1 of 4

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this and its proceedings.)

JFK HOSPITAL’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO STAY PROCEEDINGS UNTIL ARBITRATION IS COMPLETED

INTRODUCTION

In his First Amended Complaint for Damages, Plaintiff Aaron Black sued defendant JFK Hospital ("JFK") in connection with his pressure ulcers which were allegedly caused by the defendant’s alleged failure to provide him with adequate care and assistance beginning in the fall of 2007. For more information you are welcome to contact , Moseley Collins.

In accordance with an agreement Plaintiff made with JFK Hospital, and upon JFK's motion, the Court ordered that Plaintiff and JFK arbitrate the matters raised in the First Amended Complaint for Damages against JFK. Since the Court's order, Plaintiff has filed his Second Amended Complaint for Damages following the sustainment of JFK's demurrer. Given that the matter to be arbitrated involves the same causes of action and alleged injuries (i.e., pressure ulcers) that plaintiff alleges against JFK in the Second Amended Complaint for Damages ... ,

Continue reading " Sacramento Hospital Tries To Delay Arbitration In Medical Malpractice Case, Part 1 of 4 " »

Posted On: August 26, 2010

Extremely Vulnerable Patient Suffers Pressure Wounds At Sacramento Hospital Due To Malpractice, Part 6 of 6

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

When Mr. Black entered JFK on September 25, 2007, his skin assessment showed no wound or pressure ulcer. Mr. Black required turning every two hours around the clock. The nursing records disclose that that necessary intervention did not occur on multiple occasions, with periods of 3 hours, 4 hours, and 7 hours where there was no turning.

By the time Mr. Black was discharged from JFK on October 4, 2007, he had developed pressure ulcers which progressed and worsened after his discharge.

As is set forth below, the development of pressure ulcers in this paraplegic patient was not the result of an isolated episode of inadvertence by a JFK employee. Rather, this entirely preventable injury was caused by repeated episodes of neglect over a period of days by multiple employees of JFK. For more information you are welcome to contact , Moseley Collins.

In order to be entitled to enhanced remedies, plaintiff must prove that the defendant acted with recklessness, i.e. engaging in conduct while appreciating the probability that the conduct would cause harm. The First Amended Complaint sets forth facts alleging such conduct on the part of managing agents of its acute care hospital. They describe a systemic breakdown in the carrying out of well-established pressure ulcer prevention protocols by multiple caregivers over multiple days. That breakdown is alleged to have been caused by improper training, improper supervision, improper chart review, improper competency assessment and/or improper staffing levels, or a combination of these factors.

Continue reading " Extremely Vulnerable Patient Suffers Pressure Wounds At Sacramento Hospital Due To Malpractice, Part 6 of 6 " »

Posted On: August 25, 2010

Nursing Staff At Sacramento Hospital Commits Egregious Elder Abuse, Part 5 of 6

It is worth noting that situations similar to those described in this could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse case and its proceedings.)

Physicians and other health care providers, as well as hospitals, can be held liable under the elder abuse statutes. That was the holding in Mack v. Soung (2000) 80 Cal.App. 4th 966. Such persons have care and custody of an elder within the meaning of the when they undertake to care for an elder. The Court summed up its holding as follows:
Delaney establishes that health care providers are not exempt from liability for reckless neglect simply because the cause of action arises from the rendition of health care services. Mack v. Soung, supra, at 974.

Each of the required elements of proof to support a claim for reckless neglect of an elder is set out in the First Amended Complaint and is supported by specifically alleged facts. Those allegations together may be summarized as follows. For more information you are welcome to contact , Moseley Collins.

Aaron Talbot, an elder and dependent adult within the meaning of the Elder Abuse Statutes (W&I Code §15600 et seq.), was admitted to JFK on September 25, 2007. He was diagnosed with a cervical spine fracture. Mr. Black had pre-existing paraplegia. For this reason and because he had a neck fracture, he was at high risk for the development of pressure ulcers.

Continue reading " Nursing Staff At Sacramento Hospital Commits Egregious Elder Abuse, Part 5 of 6 " »

Posted On: August 24, 2010

Sacramento Patient's Hospital Care A Gross Departure From Acceptable Standard, Part 4 of 6

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

ARGUMENT

Law Applicable to Demurrers

It is axiomatic that a demurrer does not test the sufficiency of evidence or other extrinsic matters. Four Star Electric v. F&H Construction (1992) 7 Cal.App. 4th 1375, 1379, The only issue for the Court to resolve on demurrer is whether the complaint, as it stands, unconnected with extraneous matter, states a cause of action. Gervase v. Superior Court (1995) 31 Cal.App. 4th 1218, 1224. The judge's function on demurrer is to treat properly pleaded facts as true without consideration of whether they are provable or not. Ibid.

While these rules of determining a demurrer are well known, it is often valuable to remind the moving party of them. In the case at bar, if each properly pleaded fact in the First Amended Complaint were stipulated to be true, the defendant could not argue that the plaintiff would not be entitled to a verdict under the Elder Abuse Statutes. This is another way of expressing the standard for judging a demurrer. When properly viewed in this way, it is plain that defendant's demurrer is without merit. For more information you are welcome to contact , Moseley Collins.

Plaintiff Has Pleaded Facts Sufficient to State a Cause of Action for Reckless Neglect of an Elder

Continue reading " Sacramento Patient's Hospital Care A Gross Departure From Acceptable Standard, Part 4 of 6 " »

Posted On: August 23, 2010

Sacramento Hospital Patient Suffers Decubitis Ulcers Due To Reckless Neglect, Part 3 of 6

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

The pattern of neglect in not following said basic treatments and assessments was not an isolated episode of inadvertence by a single practitioner, but was evidence of institutional indifference in that multiple employees on multiple occasions neglected Aaron. The repeated failure of the staff to follow well-known protocols for the prevention of pressure ulcers and other conditions to which Aaron was susceptible is a gross departure from any standard of care and is evidence of a reckless disregard of health and safety of patients by the managing agents, officers, owners and operators of defendants. For more information you are welcome to contact , Moseley Collins.

Further allegations of reckless institutional neglect are set out in paragraph 26, wherein it is alleged that managing agents of JFK, including the Administrator and Director of Nursing, consistently failed to properly train the nursing staff, repeatedly failed to engage in chart review to assure that proper care planning and treatment was occurring, repeatedly failed to assess the competency of the nursing staff and knowing of the neglect of Mr. Black, took no remedial action.

Paragraphs 19 and 20 set out duties which JFK was required to carry out but failed to do so with references to State and Federal regulations. The breaches of duty all relate to the failure to properly initiate a care plan and carry out a care plan to protect Aaron Talbot from compromise to his health and safety, i.e. the development of pressure ulcers.

Continue reading " Sacramento Hospital Patient Suffers Decubitis Ulcers Due To Reckless Neglect, Part 3 of 6 " »

Posted On: August 22, 2010

Elder Abuse Of Paraplegic Man At Sacramento Hospital Leads To Malpractice Suit, Part 2 of 6

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse case and its proceedings.)

FACTUAL ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

The First Cause of Action details the facts which would support a verdict for on the part of JFK.

It is alleged that Aaron was a patient under the care of JFK from September 25, 2007 through October 4, 2007, with a diagnosis of neck fracture. It is further alleged that Mr. Black suffered from pre-existing paraplegia and, while at JFK, he was plainly dependent upon JFK for virtually all activities of daily living. Paragraph 14 goes on to allege that because of Mr. Black's condition, JFK knew that he was at high risk for the development of pressure ulcers and that, if they were allowed to develop, they would be difficult to treat because of Mr. Black's bed-bound status and that there was a significant risk of serious consequences from their progression. For more information you are welcome to contact , Moseley Collins.

The First Amended Complaint with specificity alleges that the nurses at JFK knew or were obligated to know thatMr. Black was required to be repositioned at a minimal interval of every two hours in order for a proper ulcer-prevention care plan to be carried out.

Continue reading " Elder Abuse Of Paraplegic Man At Sacramento Hospital Leads To Malpractice Suit, Part 2 of 6 " »

Posted On: August 21, 2010

Paralyzed Patient In Sacramento Hospital Sues For Malpractice, Part 1 of 6

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT JFK HOSPITAL'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

INTRODUCTION

Defendant JFK demurs to plaintiff's First Amended Complaint on the basis that it fails to plead sufficient facts to support a claim for reckless neglect of an elder in violation of Welfare & Institutions Code § J 5600 et seq.

Defendant's demurrer is without merit and is of a type filed as a matter of course in virtually all elder abuse cases. Its principal purpose is to add a burden to plaintiffs bringing such cases which was not intended by the legislature. In point of fact, the legislature in §15600 of the Welfare & Institutions Code expressed as its purpose in enacting the Elder Abuse Statutes to encourage lawyers and others to take up the cause of the neglected elderly because representation had been difficult to obtain previously due to the vagaries of the law. For more information you are welcome to contact , Moseley Collins.

Plaintiff's pleading in the case at bar is far more particular in its factual pleading than would be required under standard notice pleading rules. It alleges facts and includes specific charging allegations which if supported by evidence at trial would justify a verdict in plaintiff's favor on a cause of action for reckless neglect of an elder.

Continue reading " Paralyzed Patient In Sacramento Hospital Sues For Malpractice, Part 1 of 6 " »

Posted On: August 20, 2010

Wrongful Death At Sacramento Hospital Leads To Medical Malpractice Lawsuit, Part 2 of 2

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

Interrogatories

Code of Civil Procedure §2030.290 provides in relevant part as follows:

If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply:

(b) The party propounding the interrogatories may move for an order compelling response to the interrogatories. For more information you are welcome to contact , Moseley Collins.

In this case, defendant LMN Hospital propounded Form and Special Interrogatories on plaintiff on October 23, 2007. Plaintiff's responses were due on November 30, 2007. Responses have not been served and all objections have been waived. (C.C.P. §2030.290.) Despite an attempt to meet and confer with plaintiff regarding these delinquent discovery responses, moving defendant has never received any responses from plaintiff. Therefore, defendant requests this Court to order that all objections to the Form and Special Interrogatories are waived, and issue an order compelling plaintiff to provide responses to the Form and Special Interrogatories.

Request for Production of Documents

Code of Civil Procedure §2031.300 provides in relevant part as follows:


Continue reading " Wrongful Death At Sacramento Hospital Leads To Medical Malpractice Lawsuit, Part 2 of 2 " »

Posted On: August 19, 2010

Parties Fight Over Document Production In Sacramento Hospital Malpractice Case, Part 1 of 2

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in cases present such issues to the court.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

DEFENDANT LMN HOSPITAL’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DISCOVERY RESPONSES

INTRODUCTION AND STATEMENT OF RELEVANT FACTS

Plaintiff, William Brown, against LMN Hospital on May 11, 2007.

On October 23, 2007, defendant LMN Hospital served a Request for Statement of Damages, Form Interrogatories, Special Interrogatories, and Request for Production of Documents by way of regular United States mail on plaintiff. Plaintiff's statement of damages was due on or before November 12, 2007. Plaintiff's responses to form interrogatories, special interrogatories and request for production of documents were due on or before November 30, 2007. For more information you are welcome to contact , Moseley Collins.

On December 3, 2007, our office sent a meet and confer letter to plaintiff's counsel regarding the discovery. We asked plaintiff to provide objection free responses on or before December 23, 2007, to avoid a motion to compel. This motion is now necessitated by plaintiff's continued failure to provide any discovery responses.

Continue reading " Parties Fight Over Document Production In Sacramento Hospital Malpractice Case, Part 1 of 2 " »

Posted On: August 18, 2010

Hospital's Nursing Staff's Reckless Elder Abuse Results In Malpractice Lawsuit, Part 9 of 9

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

XYZ, in its notice, without reference to particularities or page or lines, claims that the 2nd and 3rd causes of action are uncertain as to the theory of liability and lack of reference to federal regulations (though not required to state a cause of action for medical malpractice or wrongful death). XYZ also claims that the first cause of action for elder abuse is uncertain, again with any citations to page or line or specifics, as to the allegations regarding reckless neglect on the part of employees, managing agents, officers or directors of the hospital. The special demurrer as to each cause of action for uncertainty must be denied. For more information you are welcome to contact , Moseley Collins.

The second cause of action is for , as it is entitled. By incorporation of the allegations from the general allegations and the first cause of action regarding XYZ's duties and breach of those duties and standards of care, plaintiff has stated a cause of action of medical malpractice. Failure to identify a particular federal regulation is not required to state this cause of action.

The complaint is for the wrongful death of Mr. Lee by his surviving heir, based on the theories of elder abuse and medical malpractice and includes appropriate damage requests for Mr. Lee's special damages under the Elder Abuse Act. Paragraph 55 of complaint is allowed by W&I Code §15657, and Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1254, 1265. The Elder Abuse Act allows for a claim for Mr. Lee's special damages including his pain and suffering before his death.

Continue reading " Hospital's Nursing Staff's Reckless Elder Abuse Results In Malpractice Lawsuit, Part 9 of 9 " »

Posted On: August 17, 2010

Malpractice Suit Filed After Sacramento Hospital Fails To Feed Elderly Patient, Part 8 of 9

It is worth noting that situations similar to those described in this se could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

XYZ'S CLAIMS OF UNCERTAINTY FAIL

A demurrer based on uncertainty will be sustained only where the defendant cannot reasonably determine what issues must be admitted or denied or what claims are directed against it. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 927, p. 364; 1 Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1990) § 7:85, p. 7-23. See, Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty should be overruled where the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable through discovery, or not dispositive of one or more causes of action. Khory, supra, at 616. For more information you are welcome to contact , Moseley Collins.

The complaint contains more than sufficient facts to apprise XYZ of the issues it is being asked to meet, including labeling each of the causes of action so that XYZ can tell to what it is responding and therefore, the uncertainty claims fail. See, Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d, 135, 139, fn. 2. [ [U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

Continue reading " Malpractice Suit Filed After Sacramento Hospital Fails To Feed Elderly Patient, Part 8 of 9 " »

Posted On: August 16, 2010

Punitive Damages Sought By Family Of Sacramento Man In Hospital Malpractice Suit, Part 7 of 9

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

PUNITIVE DAMAGES IN THE ELDER ABUSE CAUSE OF ACTION IS SUFFICIENTLY PLED

CCP §425.11 is inapplicable to an elder abuse cause of action.

XYZ's claim that Plaintiff must comply with Code of Civil Procedure §425.13 which requires that a plaintiff seek court permission to state a punitive damage claim in a medical malpractice cause of action, was held five years ago by the California Supreme Court as inapplicable in elder abuse causes of action. Covenant Care, Inc. v. Superior Court, (2004) 32 Cal.4th 771, 790. Plaintiff has not alleged punitive damages in his second or third causes of action.

PLAINTIFF HAS ALLEGED SUFFICIENT FACTS OF CONDUCT BY XYZ EMPLOYEES, MANAGING AGENTS AND RATIFICATION TO SUSTAIN THE CLAIM FOR PUNITIVE DAMAGES IN THE ELDER ABUSE CAUSE OF ACTION AND THE MOTION TO STRIKE MUST BE DENIED.

XYZ argues that plaintiff has not stated sufficient facts of punitive damages. The facts to support the reckless neglect of Mr. Lee and his rights while under XYZ's care are also sufficient to state this claim of punitive damages in the elder abuse cause of action. For more information you are welcome to contact , Moseley Collins.

Pursuant to Cal. Civ. Code §3294(b) Plaintiff is entitled to punitive damages in that Defendant authorized or ratified the wrongful conduct for which Plaintiff seeks to recover. [White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 577].

Continue reading " Punitive Damages Sought By Family Of Sacramento Man In Hospital Malpractice Suit, Part 7 of 9 " »

Posted On: August 15, 2010

Sacramento Hospital's Failure To Investigate Patient's Stated Needs Constitutes Malpractice, Part 6 of 9

It is worth noting that situations similar to those described in this could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

As the court in College Hosp. v. Superior Court, (1994) 8 Cal.4th 704, stated, the issue of ratification commonly arises where the employer or its managing agent is charged with failing to intercede in a known pattern of workplace abuse, or failing to investigate or discipline the errant employee once such misconduct became known. In Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, the Court concluded the health provider's failure to respond to known deteriorating pressure sores constituted a reckless failure to provide medical care for her physical health needs and that no changes were made to the patient care plan and/or that the care plan was not followed even with full knowledge that the pressure sore was deteriorating. The court further found that it would be reasonably inferred from this chain of events that [the health care provider] acted with reckless neglect in caring for Mrs. Intrieri. For more information you are welcome to contact , Moseley Collins.

The same is true in this case. Plaintiff has alleged facts of a pattern of reckless neglect, disregarding dietary plans and instructions, and failing to reposition Mr. Lee, for 39 days. These facts are sufficient to support the inference that supervisors and managers of the nurses and staff whom intentionally violated the standing dietary plan and instructions and failed to reposition Mr. Lee for weeks ratified this type of treatment of Mr. Lee.

Continue reading " Sacramento Hospital's Failure To Investigate Patient's Stated Needs Constitutes Malpractice, Part 6 of 9 " »

Posted On: August 14, 2010

Sacramento Man's 39-Day Hospital Stay Ends In Death Due To Malpractice, Part 5 of 9

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

PLAINTIFF ALLEGES SUFFICIENT FACTS OF XYZ'S NURSING STAFF AND STAFF RECKLESS NEGLECT

XYZ's argument that plaintiff has not alleged facts regarding employees of XYZ fails to acknowledge the allegations throughout the complaint regarding XYZ's nursing staff and staff. The complaint sufficiently states facts regarding XYZ's nursing staffs recklessness in feeding Mr. Lee, in violation of standing orders, solid food, and again feeding him solid food after being confronted by more than one person. The failure to plead the specific names of the employees is not required; defendant has not cited any legal authority to support this argument. For more information you are welcome to contact , Moseley Collins.

PLAINTIFF ALLEGES SUFFICIENT FACTS TO SUPPORT THE INFERENCE OF RATIFICATION OF THE PATTERN OF RECKLESS NEGLECT BY XYZ'S MANAGING AGENTS, OFFICERS, AND DIRECTORS.

Plaintiff has sufficiently alleged facts of a pattern over 39 days that support inferences of ratification by XYZ's officers, directors and/or managing agents.

Mr. Lee was a patient at XYZ from September 14, 2006, through October 23, 2006. After having undergone surgery to remove a tumor in his esophagus, he was admitted into XYZ for low blood pressure, with strict dietary instructions of no solid foods.

Continue reading " Sacramento Man's 39-Day Hospital Stay Ends In Death Due To Malpractice, Part 5 of 9 " »

Posted On: August 13, 2010

Reckless Disregard By Physicians At Sacramento Hospital Leads To Wrongful Death, Part 4 of 9

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

Plaintiff alleges that XYZ's nursing staff and staff, recklessly neglected Mr. Lee by continuously giving him solid food, in violation of standing instructions because Mr. Lee had recently undergone surgery to remove a tumor inside his esophagus. Plaintiffs family and others warned XYZ to follow the instructions, but XYZ continued to disregard the instructions. This was not an isolated incident, nor limited to one person, but ongoing and continuous reckless neglect and treatment of Mr. Lee from September 14, 2006 through October 23, 2006. For more information you are welcome to contact , Moseley Collins.

These facts are sufficient to establish the inference that as an on going and continuance act by XYZ's staff, the managing staff of the hospital or others approved and ratified this conduct. Plaintiff has alleged these facts of ratification and authorization. XYZ's reckless disregard of these standing instructions caused Mr. Lee serious pain and suffering and physical injuries, including choking on food, vomiting, aspirating into his lungs and suffering an incident of prolonged respiratory failure with significant permanent injury.

XYZ argues that it is unclear whether the non-solid food instructions provided when Mr. Lee was transferred to XYZ, was a part of XYZ's doctor's orders is irrelevant. XYZ is arguing what it contends should be the evidence, which is inappropriate on a demurrer. (Aubry v. Tri City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967 [demurrer admits the truth of all material facts].

Continue reading " Reckless Disregard By Physicians At Sacramento Hospital Leads To Wrongful Death, Part 4 of 9 " »

Posted On: August 12, 2010

Elder Abuse And Egregious Sacramento Hospital Conduct Results In Malpractice, Part 3 of 9

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

PLAINTIFF HAS SUFFICIENTLY STATED A CAUSE OF ACTION FOR ELDER ABUSE

XYZ claims that the standard of pleading is different for an . Though a statutory cause of action is to be plead with particularity, there is no heightened pleading standard. Plaintiff has alleged each element of a cause of action pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) Welfare & Institutions Code §15600, et seq., and the facts sufficiently, and with particularity, set forth XYZ's pattern of reckless neglect of Mr. Lee.

PLAINTIFF HAS SUFFICIENTLY ALLEGED RECKLESS NEGLECT

Defendant's argument that the facts regarding XYZ's conduct do not describe "egregious" conduct, misstates the elements of the Elder Abuse Act.

The Elder Abuse Act provides for heightened remedies under W&I Code §15657 and applies to health care providers who recklessly neglect elder and dependent adults. Delaney v. Baker (1999) 20 Cal.4th 23, 30-31. As the court in Benun v. Superior Court (2004) 123 Cal.App.4th 113, 119, stated, To establish elder abuse, a plaintiff must show defendant was guilty of recklessness, oppression, fraud, or malice in the commission of [neglectful ...] elder abuse]. (W&I Code §15657.) For more information you are welcome to contact , Moseley Collins.

The Elder Abuse Act defines the abuse of an elder to mean "physical abuse, neglect, ... " or "other treatment with resulting physical harm or pain or mental suffering," or "the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering." (W&I Code §15610.07(a) and (b)).

Continue reading " Elder Abuse And Egregious Sacramento Hospital Conduct Results In Malpractice, Part 3 of 9 " »

Posted On: August 11, 2010

Family Of Deceased Sacramento Hospital Patient Sues For Malpractice, Part 2 of 9

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

XYZ generally demurs to the first cause of action for elder abuse on the grounds that plaintiff has failed to state sufficient facts to state a cause of action because plaintiff has not plead facts of reckless conduct by any employees of XYZ. This is incorrect, as throughout the complaint, plaintiff alleges the conduct by XYZ's nursing staff and staff. XYZ argues that plaintiff has not identified any wrongful conduct by any managing agents, officers or directors of XYZ. Again, this is in error. The first sets forth sufficient facts to support the inference of ratification of this pattern of reckless neglect for 39 days by XYZ's staff.

Combined in this motion is XYZ's request to strike the allegations of punitive damages in the elder abuse cause of action on the same two grounds, in addition to asserting an erroneous argument plaintiff failed to comply with Code of Civil Procedure §425.13. The California Supreme Court held that §425.13 does not apply to elder abuse claims. XYZ specially demurrers to the first cause of action on the ground of uncertainty, without specifying the particular allegations that it contends is uncertain. For more information you are welcome to contact , Moseley Collins.

XYZ specially demurs to the second cause of action for medical malpractice and third cause of action for wrongful death on uncertainty, again without specifying the particular allegations it contends is uncertain. XYZ then moves to strike the words reckless from the second and third causes of action, without citing any legal support. If plaintiff can prove recklessness, plaintiff will also have proven negligence.

Continue reading " Family Of Deceased Sacramento Hospital Patient Sues For Malpractice, Part 2 of 9 " »

Posted On: August 10, 2010

Sacramento Hospital Nursing Staff Violates Regulations In Malpractice Case, Part 1 of 9

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

PLAINTIFF’S OPPOSITION TO DEMURRER AND MOTION TO STRIKE FILED BY DEFENDANT, XYZ HOSPITAL

INTRODUCTION

XYZ Hospital ("XYZ"), through its nursing staff and staff, engaged in a pattern for over a month of reckless neglect of Donald Lee by knowingly disregarding standing instructions from Mr. Lee's prior health care providers, physicians and family that he only be fed pureed food because of a recent surgery to remove a tumor from his esophagus surgery. XYZ, through its staff and nursing staff, fed him solid foods in violation of these instructions, which caused Mr. Lee to choke on his food, vomit and aspirate into his lungs and suffer an incident of prolonged respiratory failure with . Mr. Lee was placed on a ventilator because he was no longer capable of breathing without mechanical assistance, underwent a tracheotomy and the insertion of a feeding tube. For more information you are welcome to contact , Moseley Collins.

Confined to his bed, Mr. Lee required re-positioning to avoid developing bedsores. XYZ, again through its nursing staff and staff, between September 14, 2006 and October 23, 2006, recklessly neglected Mr. Lee and failed to re-position him, causing him to develop a Stage II-III sacral decubitus ulcer. XYZ, however, contends these are not sufficient facts of reckless neglect and brought this combined demurrer and motion to strike to the complaint for elder abuse, wrongful death, and medical malpractice. (See Part 2 of 9.)

Continue reading " Sacramento Hospital Nursing Staff Violates Regulations In Malpractice Case, Part 1 of 9 " »

Posted On: August 9, 2010

Elder Abuse And Medical Malpractice At Sacramento Hospital, Part 9 of 9

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

THE HEALTH AND SAFETY CODE § 1430 CLAIM MUST BE STRICKEN AS TO XYZ HOSPITAL

Health and Safety Code § 1430 applies to and reads in part:

(a) Except where the state department has taken action and the violations have been corrected to its satisfaction, a licensee who commits a class "A" or "B" violation may be enjoined from permitting the violation to continue or may be sued for civil damages within a court of competent jurisdiction. ...

(b) A current or former resident or patient of a skilled nursing facility, as defined in subdivision

(c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations. ...

Thus Health and Safety Code § 1430 permits actions against the licensee of a skilled nursing facility, not acute care Hospitals. The claim under this statute must therefore be stricken as to XYZ Hospital. For more information you are welcome to contact , Moseley Collins.

Continue reading " Elder Abuse And Medical Malpractice At Sacramento Hospital, Part 9 of 9 " »

Posted On: August 8, 2010

Doctor's Malpractice Results In Sacramento Man's Wrongful Death, Part 8 of 9

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

Similarly, the court in Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, noted:
The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. (See Taylor v. Superior Court, supra, 24 Cal.3d 890, 894, citing Prosser, Law of Torts (4th ed. 1971) § 2, at pp. 9-10.) Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [122 Cal.Rptr. 218].)Id. at 166. For more information you are welcome to contact , Moseley Collins.

Moreover, courts have also recognized that the requirements of Civil Code § 3294 (b) must also be pled factually to properly state a punitive damage claim against an employer/corporation:
" ... we fail to see how any of those allegations sets forth facts to show Hospital's advance knowledge, authorization or ratification. Also, absent from the complaint is any assertion an officer, director or managing agent of Hospital was personally responsible for any of the acts allegedly performed by Hospital." Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167-168.

Continue reading " Doctor's Malpractice Results In Sacramento Man's Wrongful Death, Part 8 of 9 " »

Posted On: August 7, 2010

Sacramento Family Seeks Punitive Damages For Hospital's Malpractice, Part 7 of 9

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

THE PUNITIVE DAMAGES SHOULD BE STRICKEN

Since plaintiff has failed to properly plead a dependent adult claim, he must comply with the requirements of C.C.P. §425.13 before alleging a punitive damage claim against a health care provider, and the punitive damages must be stricken until leave of court has been obtained. For more information you are welcome to contact , Moseley Collins.

But even if plaintiff did not have to comply with § 425.13, the complaint fails to plead facts sufficient to support a punitive damage claim against the Hospital. To recover punitive damages plaintiff must prove an intent to injure or despicable conduct carried out with a willful and conscious disregard of a plaintiff's safety. Civil Code § 3294. In College Hospital v. Superior Court (1994) 8 Cal. 4th 704, 705, the court characterized the addition of the despicable conduct requirement as a new substantive limitation on the award of punitive damages. Despicable conduct is specifically defined in BAJI 14.72.1 as follows:
"...conduct which is so [vile] [base] [contemptible] [miserable] [wretched] or [loathsome] that it would be looked down upon and despised by ordinary, decent people."

See also Mock v. Michigan Mutual Ins. Co (1992) 4 Cal.App.4th 306, 331. The court in Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 recognized that despicable conduct must be pled, and it characterized despicable as a "powerful" term. No such conduct has been alleged here.

Continue reading " Sacramento Family Seeks Punitive Damages For Hospital's Malpractice, Part 7 of 9 " »

Posted On: August 6, 2010

Sacramento Hospital Vicariously Liable For Medical Malpractice By Staff, Part 6 of 9

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

THE SECOND CAUSE OF ACTION FOR MEDICAL MALPRACTICE IS UNCERTAIN

The second cause of action is pled collectively against both of the entity defendants and do not contain any specific charging allegations against XYZ Hospital. The only relativity specific allegation in the second cause of action pertains to standards of care applicable to skilled nursing facilities. For more information you are welcome to contact , Moseley Collins.

Moreover, the second cause of action is entitled medical malpractice, but it contains references to reckless conduct and allegedly improper billing practices, neither of which would constitute medical malpractice as that term is generally understood. It is therefore uncertain as to the theories of liability plaintiff intends to assert in this cause of action.

The second cause of action also references federal regulatory requirements which were allegedly not maintained, but it fails to say what federal regulations were allegedly not followed.

Continue reading " Sacramento Hospital Vicariously Liable For Medical Malpractice By Staff, Part 6 of 9 " »

Posted On: August 5, 2010

Egregious Medical Conduct Results In Malpractice At Sacramento Nursing Facility, Part 5 of 9

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

PLAINTIFF HAS ALSO FAILED TO PLEAD WRONGFUL CONDUCT ON THE PART OF AN OFFICER, DIRECTOR OR MANAGING AGENT OF THE HOSPITAL WITH THE REQUIRED PARTICULARITY

There is no vicarious liability under the elder abuse statutes. Welfare and Institutions Code § 15657 provides in part:
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer. Civil Code §3294 and thus Welfare and Institutions Code § 15657 require reckless or otherwise wrongful conduct on the part of an officer, director, or managing agent of the corporate/employer defendant. For more information you are welcome to contact , Moseley Collins.

Civil Code §3294 (b) reads as follows:
An employer shall not be liable for damages...based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights and safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression fraud, or malice must be on the part of an officer, director, or managing agent of the corporation

Continue reading " Egregious Medical Conduct Results In Malpractice At Sacramento Nursing Facility, Part 5 of 9 " »

Posted On: August 4, 2010

Sacramento Man Underfed And Subsequently Dies At Hospital Due To Malpractice, Part 4 of 9

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this and its proceedings.)

DEPENDENT ADULT CLAIMS MUST BE PLED WITH PARTICULARITY

Even under general pleading requirements, pleadings must allege facts not just conclusions, and mere contentions, deductions and conclusions of law or fact need not be accepted as true. Ankeny v. Lockheed Missiles & Space Co (1979) 88 Cal.App.3d 531, 537; Serrano v. Priest (1971) 5 Cal.3d 584, 591. Moreover, a complaint, to be sufficient, must contain a statement of facts which, without the aid of other conjectured facts not stated shows a complete cause of action. Hawkins v. Oakland Title Ins. Guaranty Co. (1958) 165 Cal.App.2d 116, 122. For more information you are welcome to contact , Moseley Collins.

In addition, claims under Welfare and Institutions Code § 15657 are statutory causes of action, and they must be pled with particularity. In Covenant Care v. Superior Court 32 Cal.4th 771, 790, the Supreme Court states that the general rule requiring statutory causes of action to be pled with particularity applies to claims under the dependent adult statutes. The court cites to Lopez v. South California Rapid Transit District (1985) 40 Cal.3d 780, 795. In Lopez, the court stated the rule and concluded that to state a cause of action ... every fact material to the existence of its statutory liability must be pleaded with particularity. Id. [Emphasis added.] Lopez in turn cites to Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5 which explains in part:

Because recovery is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate.

Continue reading " Sacramento Man Underfed And Subsequently Dies At Hospital Due To Malpractice, Part 4 of 9 " »

Posted On: August 3, 2010

Reckless Care At Sacramento Skilled Nursing Facility Constitutes Malpractice, Part 3 of 9

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

The civil remedies set forth in Welfare and Institutions Code §15657 read as follows:
Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law. For more information you are welcome to contact , Moseley Collins.

In Delaney v. Baker (1999) 20 Cal.4th 23, 31, the court defined the reckless state of mind necessary to establish a cause of action under the elder abuse statutes:

"Recklessness" refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur (BAJI No. 12.77 [defining recklessness in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a "conscious choice of a course of action ... with knowledge of the serious danger to others involved in it." (Rest.2d Torts, § 500, com. (g), p. 590.) n. 5

Continue reading " Reckless Care At Sacramento Skilled Nursing Facility Constitutes Malpractice, Part 3 of 9 " »

Posted On: August 2, 2010

Elder Abuse Results In Death At Sacramento Hospital, Part 2 of 9

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

APPLICABLE LAW

C.C.P. § 430.10 sets forth the grounds for demurrer:
The party against whom a complaint ... has been filed may object, by demurrer ... to the pleading on any one or more of the following grounds...
(d) There is a defect or misjoinder of parties.
(e) The pleading does not state facts sufficient to constitute a cause of action.
(f) The Pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible. For more information you are welcome to contact , Moseley Collins.

C.C.P. §§ 435-436 permits the court to strike improper matters contained in the complaint. Section 435 and reads in part as follows:
(b)(1) Any party within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof...

Section 436 provides in part:
The court may, upon a motion made pursuant to Section 435...
(a) Strike out any irrelevant, false or improper matter inserted in any pleading.
(b) Strike out all or any part of any pleading not drawn ...in conformity with the laws of this state, a court, or an order of the court.

Continue reading " Elder Abuse Results In Death At Sacramento Hospital, Part 2 of 9 " »

Posted On: August 1, 2010

Sacramento Hospital Patient Suffers Wrongful Death, Part 1 of 9

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this case and its proceedings.)

DEFENDANT XYZ HOSPITAL'S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTFFS' COMPLAINT FOR DAMAGES

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF XYZ HOSPITAL'S DEMURRER AND MOTION TO STRIKE

INTRODUCTION

Plaintiff's complaint arises out of the care and treatment provided to Donald Lee at XYZ Hospital and at a skilled nursing facility, Universal Hospital. The complaint alleges causes of action for medical malpractice, wrongful death and a cause of action under the dependent adult statutes. For more information you are welcome to contact , Moseley Collins.

Dependent adult claims must be pled with particularity. Plaintiff has failed to properly plead facts sufficient to show reckless and egregious abuse on the part of an employee of XYZ Hospital, or facts to show wrongful conduct on the part of any officer, director or managing agent of the Hospital which must also be alleged to state a claim against the Hospital under Welfare and Institutions Code § 15657 and under Civil Code § 3294. The Hospital therefore demurs to the dependent adult claim and moves to strike the § 3294 punitive damage claim.

Continue reading " Sacramento Hospital Patient Suffers Wrongful Death, Part 1 of 9 " »