November 9, 2010

Wife Sues For Damages After Husband's Wrongful Death At Sacramento Hospital, Part 2 of 3

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, UC Davis Medical Center, Mercy, or Sutter.

(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

Preliminarily, plaintiffs characterization of the line of duty determination as being made where a soldier is possibly under the stress of a his/her time in combat in Plaintiff's Motion in Limine, p.l, is extremely limiting and somewhat biased. While many soldiers certainly do experience stress "related to their military service," it is not a given that they will also attempt to end their lives under non-combat situations such as those in this case. More importantly however, plaintiff glosses over the fact that the Line of Duty determination is in fact, an investigation. The past difficulties are relevant for the jury's consideration of whether plaintiffs economic damages claim have any merit, and to what degree. For more information you are welcome to contact , Moseley Collins.

As a pre-existing medical condition, the military failed to prevent the current hospitalization with significant therapy and medication prescriptions. This is probative of whether Mr. Hill could have been expected to return to military service at any point in the future, and whether the military could offer Mr. Hill the assistance he needed, among other things. Plaintiff cannot claim that Defendants should have inquired into this history to establish liability, while precluding defendants from utilizing the same information for purposes of causation and damages.

A Line of Duty (LOD) determination is an administrative tool for determining a member's duty status at the time an injury, illness, disability, or death is incurred. This investigation is generally conducted whenever a soldier acquires a disease, incurs a significant injury or is injured under unusual circumstances.

Continue reading "Wife Sues For Damages After Husband's Wrongful Death At Sacramento Hospital, Part 2 of 3" »

November 7, 2010

Deceased Veteran's Family Seeks Relief After Medical Negligence, Part 1 of 3

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, UC Davis Medical Center, Mercy, or Sutter.

(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.)

OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 4 REGARDING LINE OF DUTY REFERENCES

Introduction

Plaintiff seeks to exclude at trial all reference to a Line of Duty Determination as well as any documentation pertaining to a Line of Duty Report. Plaintiff claims that any reference to this term would constitute a "trial within a trial" as to the stresses of combat and whether their residual effects existed in Sacramento. (Plaintiffs Motion in Limine No. 4)

It is anticipated that Plaintiff will put on evidence regarding Mr. Hill's military service to this county in an effort to evoke sympathy and compassion from the jury. It is also anticipated that Plaintiff will attempt to portray the decedent as a hero who "fell in the line of duty." The fact that a Line of Duty Investigation regarding the circumstances of Mr. Hill's death was initiated and conducted by the military is, by itself, quite salient and should properly be allowed as admissible evidence. For more information you are welcome to contact , Moseley Collins.

To the extent the line of Duty Report spells out collateral source benefits admissible under Civil Code Section 333.1, Defendants incorporate by reference all arguments contained in their Oppositions to Plaintiff's Motions in Limine 2 and 21.

Facts

David Hill had served in the U.S. military armed services (Army) from 1989 to 1991 and again from 1999 through 2008.

Continue reading "Deceased Veteran's Family Seeks Relief After Medical Negligence, Part 1 of 3" »

November 4, 2010

Wife Of Sacramento Veteran Seeks Damages After Husband's Wrongful Death, Part 5 of 5

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, UC Davis Medical Center, Mercy, or Sutter.

(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.)

Evidence of Retirement and Survivor Payments and Benefits Based on Mr. Hill's Military Service Are Admissible As Collateral Sources

Issues pertaining to the amount of damages sought in this case, particularly in reference to claims made based on Mr. Hill's projected income must be examined at the time of trial and cannot justifiably be excluded from evidence. For example, serious questions exist as to whether Mr. Hill, even if he otherwise was able to resolve his suicidal tendencies including two § 5150 holds within close proximity to each other, a while driving a military vehicle and a drug overdose, would have allowed him to remain in the military so as to reach full retirement. Had Mr. Hill reached his full 20 years of military service, he would have been entitled to a pension at 50% of his base pay at retirement. For more information you are welcome to contact , Moseley Collins.

Assuming plaintiffs seeks to present evidence regarding the viability of a full military career to 20 years, defendants are entitled to an offset for whatever equivalent payments Mrs. Hill is receiving in lieu of that pension which would otherwise have not been obtained had he not died. See, e.g. Rotolo v. Superior Court (2003) 105 Cal.App.4th 242. Rotolo dealt with a functionally identical situation as here, of a plaintiff claiming both lost wages (albeit due to a disabling injury, not a death) and lost standard retirement/pension payments benefits of about $875,000. However, the evidence showed that, due to his disability, he was entitled to receive replacement disability retirement payments of a nearly equivalent amount in lieu of his normal retirement, He otherwise would not have received such sums had he not become disabled and retired for this reason.

Continue reading "Wife Of Sacramento Veteran Seeks Damages After Husband's Wrongful Death, Part 5 of 5" »

November 2, 2010

Veteran With PTSD Suffers Wrongful Death In Sacramento Hospital, Part 4 of 5

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, UC Davis Medical Center, Mercy, or Sutter.

(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 Wrongful Death Action Is Subject to Civil Code § 3333.1

Plaintiff Stella Hill's wrongful death claim against defendant is thus, subject to collateral source rule articulated in Civil Code § 3333.1, allowing introduction of evidence of any amount payment as a benefit to the plaintiff. For more information you are welcome to contact , Moseley Collins.

In Yates v. Pollock (1987) 194 Cal. App. 3d 195, a wrongful death action by the heirs of the decedent, the court upheld the applicability of Civil Code § 3333.1 and reiterated that that wrongful death claims are for injuries suffered by the heirs of medical malpractice victims. Id at 199. (See also, Krouse v. Graham (1977) 19 Cal.3d 59, 68.) In reaching a determination that the legislative intent of the statutory provisions placing a $250,000 cap on awards for noneconomic damages in all medical malpractice litigation, whether recovery is sought by patients who have themselves suffered personal injuries or by the survivors of such victims who initiate suits for wrongful death, the Yates Court relied on and pointed out the plain, unambiguous language in Civil Code § 3333.2 which states in pertinent part:

Continue reading "Veteran With PTSD Suffers Wrongful Death In Sacramento Hospital, Part 4 of 5" »

October 31, 2010

Sacramento Family Sues For Medical Malpractice, Part 3 of 5

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, UC Davis Medical Center, Mercy, or Sutter.

(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 purpose of Civil Code § 3333.1(a) has generally been viewed as an attempt to eliminate the so-called double recovery obtained by plaintiffs who have their medical expenses paid by their own health insurance and still obtain damages for such expenses from defendant tortfeasors. Barme v. Wood (1984) 37 Cal.3d 174, fn.5. Subsection (a) overrides the collateral source rule to a considerable extent in medical malpractice cases, allowing a health care provider to introduce evidence of benefits payable to the plaintiff from the following collateral sources: private health, sickness, accident, or disability insurance, state disability insurance (SDI), workers' compensation, Social Security survivor's insurance, Social Security disability insurance (SSDI), or the Supplemental Security Income (SSI) program.

When a defendant chooses to introduce such collateral source evidence under Section 3333.1(a), the plaintiff may introduce evidence of the amounts she has paid, in insurance premiums for example, to secure those collateral source benefits. For more information you are welcome to contact , Moseley Collins.

The collateral source provision is one of the provisions of MICRA, which was intended to reduce the cost of medical malpractice insurance.

Continue reading "Sacramento Family Sues For Medical Malpractice, Part 3 of 5" »

October 27, 2010

Medical Malpractice By Sacramento Physicians Causes Veteran's Death, Part 2 of 5

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, UC Davis Medical Center, Mercy, or Sutter.

(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.)

Facts

Ms. Hill is receiving at least $1,158/month in the form of a VA death benefit, $288/month as a partial retirement payment based on the decedent's years of service/date of death, and an additional $60/month as a "family survivor" benefit. Plaintiff seeks economic damages including lost contribution based on decedent's earnings and projected work life expectancy.

For more information you are welcome to contact , Moseley Collins.

Argument

The Collateral Source Rule

Under the traditional collateral source rule, a jury, in calculating a plaintiff's damages in a tort action, does not take into consideration benefits, such as medical insurance or disability payments, which the plaintiff has received from sources other than the defendant, i.e., collateral sources, to cover losses resulting from the injury. California Civil Code § 3333.1 alters this rule in medical malpractice cases and in wrongful death cases brought by the heirs of medical malpractice victims. Civil Code § 3333.1(a) provides an exception to the collateral source rule in medical malpractice cases. That section states that in the event the defendant so elects, in an action for a personal injury against a healthcare provider based upon professional negligence, she may introduce evidence of:

Continue reading "Medical Malpractice By Sacramento Physicians Causes Veteran's Death, Part 2 of 5" »

October 24, 2010

Sacramento Veteran Suffers Wrongful Death By Negligent Doctors, Part 1 of 5

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, UC Davis Medical Center, Mercy, or Sutter.

(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.)

Defendant Medical Center Foundation Hospitals, Inc.'s Opposition to Plaintiff's Motions in Limine

GENERAL OBJECTIONS

Defendants object to the format of Plaintiffs motions to the extent that they fail to comply with any relevant requirements indicated in the Evidence Code, Code of Civil Procedure and the Rules of Court.

OPPOSITION TO PLAINTIFF'S MOTIONS IN LIMINE NO. 2 AND NO. 21 REGARDING COLLATERAL SOURCE BENEFITS

Introduction

Plaintiff seeks to exclude at trial all reference to the fact that any death benefit life insurance, Department of Veterans' Affairs benefits, or other benefits were paid (or will be paid in the future) to Plaintiff. (Plaintiff's Motion in Limine No. 2.) Plaintiff also seeks to exclude at trial all references regarding whether David Hill or Stella Hill, or both, received any compensation, insurance payment, or benefit from a collateral source as to the payment of medical, hospital, health care provider expenses. (Plaintiffs Motion in Limine No. 21.) For more information you are welcome to contact , Moseley Collins.

A governing principle under MICRA is to disallow plaintiff from recovering amounts for medical expenses in excess of the amount paid or incurred. The reason for the collateral source rule is that such evidence gives the jury a more complete picture of the extent of damages and reimbursement already provided to the plaintiff.

Continue reading "Sacramento Veteran Suffers Wrongful Death By Negligent Doctors, Part 1 of 5" »

October 21, 2010

Sacramento Hospital's Nursing Staff Part Of Malpractice Suit, Part 9 of 9

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

It is also 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.

The definitive criteria in guidance of the trial court's determination of the qualifications of an expert witness are recognized in Sinz v. Owens, supra, 33 Cal.2d 749, at page 753, 205 P.2d at page 5, to rest primarily on "occupational experience," as stated: The proof of that standard (the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances) is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wigmore has classified as "occupational experience," the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood. 2 Wigmore on Evidence 3d Ed., § 556, p. 635.

He must have had basic educational and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the that is of controlling importance in determining competency of the expert to testify to the degree of care against which the treatment given is to be measured.'' (Emphasis added.) Pearce v. Linde (1952) 113 Cal.App.2d 627, 630-631. For more information you are welcome to contact , Moseley Collins.

There seems little reasonable basis for Defendant Smith's position that he intends to elicit expert opinion testimony from Dr. Lee clearly concerning plastic surgery or nursing.

3) The Law of the Case is that Experts May Not Testify to any Opinions they did not Testify to at their Depositions

Continue reading "Sacramento Hospital's Nursing Staff Part Of Malpractice Suit, Part 9 of 9" »

October 18, 2010

Sacramento Hospital's Doctors Commit Medical Malpractice, Part 8 of 9

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

It is also 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.

The standard of care in a requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412, 175 Cal.Rptr. 365.)

It is also established that a nurse's conduct must not be measured by the standard of care required of a physician or surgeon, but by that of other nurses in the same or similar locality and under similar circumstances. (See Fein v. Permanente Medical Group (1985) 38 CalJd 137, 150-151, 211 Cal.Rptr. 368, 695 P.2d 665; Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 341, 160 Cal.Rptr. 246.) Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215. For more information you are welcome to contact , Moseley Collins.

A medical expert is not qualified as a witness unless it is shown that he is familiar with the standards required of physicians under similar circumstances. Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 8 A.L.R.2d 757; Moore v. Belt, 34 Cal.2d 525, 532, 212 P.2d 509.

Continue reading "Sacramento Hospital's Doctors Commit Medical Malpractice, Part 8 of 9" »

October 16, 2010

Sacramento Girl Disfigured By Plastic Surgeon's Malpractice, Part 7 of 9

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

It is also 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.

In the present case, the standard of care for the specialty fields of plastic surgeons and nursing, as well as whether Dr. Goldberg and the nursing staff complied with same, are matters exclusively for the province of expert testimony (unless the doctrine of res ipsa loquitur applies).

A physician's standard of care is the key issue in a and can only be proved by expert testimony unless the circumstances are such that the required conduct is within the layperson's common knowledge. (Landeros v. Flood (1976) 17 Cal.3d 399, 410, 131 Cal.Rptr. 69, 551 P.2d 389; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 CaUth 992, 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142.) For more information you are welcome to contact , Moseley Collins.

The common knowledge exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 CaUth at p. 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142, fn. omitted.) Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800-801.

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October 14, 2010

Plastic Surgeon's Negligence Results In Sacramento Malpractice Suit, Part 6 of 9

(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.)

It is also 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.

California Evidence Code section 720 further defines the necessary foundational requirement before a witness will be allowed to testify as an expert in a particular area:

(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

(b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony. (Calif. Evid. Code section 720.)

As discussed in greater detail below, there can be no doubt that Dr. Lee is not a qualified expert in plastic surgery or nursing. He has no special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Clearly, if Plaintiffs were proposing that Dr. Lee should be permitted to testify regarding the standard of care for plastic surgeons and nurses, and whether this was complied with in the present case, both Defendant Smith and the Court would not allow it. For more information you are welcome to contact , Moseley Collins.

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.

Continue reading "Plastic Surgeon's Negligence Results In Sacramento Malpractice Suit, Part 6 of 9" »

October 12, 2010

Medical Experts Battle Over Malpractice Action In Sacramento, Part 5 of 9

(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.)

It is also 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.

Allowing Dr. Lee to testify regarding the standard of care for the plastic surgeon or the hospital would constitute clear reversible error as he is not a qualified surgical or hospital standard of care expert.

Here, it is readily apparent that regardless of what opinions Dr. Lee may have expressed in his declaration (in a matter which was taken off calendar and never truly even addressed), it would be clearly improper to knowingly elicit expert opinion testimony from Dr. Lee in specialty medical fields in which he clearly is not a qualified expert.

The California Evidence Code and cases clearly provide for a mechanism to exclude such an improper opinion, and further make it clear that Dr. Lee should not be permitted to opine at trial in areas where he is not a qualified expert. For more information you are welcome to contact , Moseley Collins.

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

Continue reading "Medical Experts Battle Over Malpractice Action In Sacramento, Part 5 of 9" »

October 9, 2010

Malpractice At Sacramento Hospital Causes Young Girl's Injury, Part 4 of 9

(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.)

It is also 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.

DISCUSSION

1) Allowing Dr. Lee to Testify regarding the Standards of Care for the plastic surgeon or the hospital, would violate the holdings of Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919; Jones v. Moore (2000) 80 Cal.App.4th 557; and Bonds v. Ray (1999) 20 Cal.4th 140.

In Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919, the Fifth District held that where the plaintiff sought to elicit causation opinion testimony of an expert at trial, where that expert was not designated to give expert opinion testimony regarding causation, and where that expert had said he had no opinion regarding causation at three prior depositions, exclusion of this new area of testimony is required. For more information you are welcome to contact , Moseley Collins.

Kennemur was followed by the legal malpractice case of Jones v. Moore (2000) 80 Cal.App.4th 557, and the of Bonds v. Roy (1999) 20 Cal.4th 140. In Jones, the Plaintiff's expert testified at deposition he had an opinion about whether the defendant complied with the standard of care in negotiating a divorce decree, but not in other areas. At trial, the trial court, as in the present case, excluded any opinions of the expert outside the opinions testified to at his deposition. The Second District held that under California law, the expert was limited to those areas he had testified to at his deposition. Id at p. 564-565.


.

Continue reading "Malpractice At Sacramento Hospital Causes Young Girl's Injury, Part 4 of 9" »

October 7, 2010

Doctors At Sacramento Hospital Sued For Malpractice, Part 3 of 9

(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.)

It is also 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.

Despite the clear lack of expertise of Dr. Lee regarding the standard of care for plastic surgery and nursing, the clear designation of Dr. Lee, Dr. Lee's deposition testimony that he had no such opinions, and the fact that they are acting in contradiction to their own motion and the Order of the Court, Defendant Smith now wishes to call Dr. Lee at trial and elicit opinions regarding the standard of care for the surgeon and hospital and whether same were violated.

Counsel for Defendant Smith cites to a declaration filed early in the action, in which Dr. Lee acknowledges he has no expertise regarding the standard of care for surgeons and hospital staff but nonetheless volunteers some opinions regarding a few surgeon issues and nursing matters. This declaration was submitted only to the Court in a law and motion matter, and not to a jury, and since Defendant Smith withdrew their motion for summary judgment, the matter was never ruled upon. For more information you are welcome to contact , Moseley Collins.

Whether Dr. Lee expressed any opinions in his declaration regarding the plastic surgeon's and nurses' standard of care, is a moot point. Clearly, he is not qualified to opine in these areas and it would be a blatant violation of California Evidence Code sections 720 and 801 to allow or to force Dr. Lee to testify regarding topics about which he is not a qualified expert.

Continue reading "Doctors At Sacramento Hospital Sued For Malpractice, Part 3 of 9" »

October 4, 2010

Sacramento Surgeons Sued For Malpractice, Part 2 of 9

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

It is also 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.

On March 27, 2008, Dr. Lee was designated by Plaintiff Ana Black to testify regarding anesthesiology issues, including the standard of care and causation issues pertaining to anesthesiology. Nowhere was there any designation/declaration that Dr. Lee would testify regarding the , or whether the plastic surgeon or nurses in the present case complied with the applicable standard of care. The obvious reason was that Dr. Lee is an anesthesiologist, not a plastic surgeon or a nurse, and he is not qualified to render an opinion in these other fields of medicine.

Likewise, Defendant Smith's expert, Dr. Greene has similarly stated that he is neither an expert regarding the standard of care for surgeons or nursing, and that he does not intend to give any opinions in these areas. For more information you are welcome to contact , Moseley Collins.

On April 16, 2008, Dr. Lee was deposed, and not only once, but twice, testified that he would not be giving testimony regarding the standard of care of the surgeon or the hospital.

Q. Do you intend to give testimony as to the standard of care as it applies to Dr. Goldberg, the plastic surgeon?
A. No.

Q. Do you intend to give standard of care testimony with respect to the hospital?
A. No.

Continue reading "Sacramento Surgeons Sued For Malpractice, Part 2 of 9" »

October 2, 2010

Sacramento Girl's Family Files Medical Malpractice Action, Part 1 of 9

(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.)

It is also 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.

Plaintiff Ana Black's Memorandum of Points and Authorities in Opposition to Defendant Smith's Intent to Elicit Improper Opinion Testimony from Richard Lee, M.D.

Plaintiff Ana Black, a minor, by and through her Guardian Ad Litem, Madeline Black, respectfully submits the following memorandum of points and authorities in opposition to Defendant Smith's expressed intent to elicit expert opinions from Plaintiff's expert, anesthesiologist Richard Lee, M.D., regarding the applicable standard of care for plastic surgeon Donald Goldberg, M.D., and the nursing staff of Memorial Hospital (hereinafter "MH"), and to opine regarding whether same complied with their applicable standard of care. For more information you are welcome to contact , Moseley Collins.

INTRODUCTION

Plaintiff's expert, Richard Lee, M.D., is a highly qualified anesthesiologist. He is Board Certified in anesthesiology. He has a long history in this field, and the entirety of his practice of medicine has been limited to anesthesiology and pain medicine.

Dr. Lee is not a plastic surgeon or a nurse; he has never been board certified in either of these two fields. He has no education, residency or internship in these fields; he has never received any training in these fields, and has never worked in either field.

Continue reading "Sacramento Girl's Family Files Medical Malpractice Action, Part 1 of 9" »

September 30, 2010

Medical Negligence By Doctors And Hospital Result In Man's Wrongful Death, Part 5 of 5

(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.)

It is also 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.

Defendant's Purported Negligence Was Not The Proximate Cause of Plaintiffs' Alleged Injuries

Plaintiff must prove a proximate causal connection between the . Bromme v. Pravitt (1992) 5 Cal.App.4th 1487, 1499; Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 611-612. Based on competent expert testimony, causation must be proven within a reasonable medical probability. As discussed by the Court in Bromme, there is a distinction between a reasonable medical probability and medical possibility. Bromme at 1499. There may be many possible circumstances, which can produce an injury or death. However, Plaintiffs must establish that Defendants' negligence was the substantial factor in the injury or death. Id. For more information you are welcome to contact , Moseley Collins.

In medical malpractice cases, the evidence must be sufficient to allow the jury to infer that, in the absence of defendant's negligence, there was reasonable medical probability that the plaintiffs would have obtained a better result. Morganroth v. Pacific Medical Center (1976) 54 Cal.App.3d 521, 533. Where the facts are undisputed and only one conclusion can be drawn, it is a question of law. See Hooks v. Southern California Permanente Medical Group (1980) 107 Cal.App.3d 435, 448 (court held that, while proximate cause is ordinarily a question of fact, when the facts are undisputed and only one conclusion can be drawn, it is a question of law).

Plaintiff’s injuries as set forth in the Complaint were not a result of any alleged negligence by Dr. Hal Smith. As discussed above, Dr. Hal Smith complied with the standard of care regarding Mr. Brown. As such, nothing Dr. Hal Smith did or failed to do caused the alleged injuries of Plaintiff.

Continue reading "Medical Negligence By Doctors And Hospital Result In Man's Wrongful Death, Part 5 of 5" »

September 27, 2010

Wrongful Death And Malpractice Action Filed On Behalf Of Sacramento Psychiatric Patient, Part 4 of 5

(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.)

It is also 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.

Defendants Did Not Breach The Standard of Care

Whether the presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844; Landeros v. Flood (1976) 17 Cal.3d 399, 410; see BAJI 6.00.1. In the absence of any evidence that Defendant breached the standard of care, Defendant is entitled to judgment as a matter of law. For more information you are welcome to contact , Moseley Collins.

Dr. Smith's care and treatment of Mr. Brown complied with the standard of care. It was not unreasonable for Dr. Smith to allow the patient to leave the emergency room. The patient was oriented to person, place, and time. His vital signs were normal and he showed no signs of medical distress. Therefore, the patient should not be detained when he refused an examination and wanted to leave the hospital. Moreover, Mr. Brown was not in custody pursuant to § 5150 of the Welfare and Institutions Code. Either the police or a psychiatrist can issue such a hold. In following, only a police officer or a psychiatrist can release a patient who is under such a hold.

In the event a patient is held pursuant to § 5150, a form is filled out by the police officer or psychiatrist, which then becomes part of the patient's chart. The form indicates that the patient is a danger to themselves and others.

Continue reading "Wrongful Death And Malpractice Action Filed On Behalf Of Sacramento Psychiatric Patient, Part 4 of 5" »

September 25, 2010

Sacramento Physicians Commit Malpractice By Discharging Patient Who Thereafter Died, Part 3 of 5

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

It is also 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.

ARGUMENT

SUMMARY JUDGMENT LEGAL STANDARD

Summary judgment shall be granted if the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. Cal. Code of Civ. Proc. §437c; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579. A Defendant is entitled to summary judgment if they show one or more elements of the Plaintiff's case cannot be established or that they have a complete defense to the cause of action. Cal. Code Civ. Proc. § 437c(o)(2); Alszeh v. Home Box Office (1998) 67 Cal.App.4th 1456, 1460. Once the Defendant meet their initial burden, the Plaintiff must demonstrate, by submitting admissible evidence of specific facts that a triable issue of material fact exists. Id. For more information you are welcome to contact , Moseley Collins.

PLAINTIFF'S CLAIM FOR MEDICAL NEGLIGENCE LACKS MERIT

Elements Required for Actionable Negligence

In any , the Plaintiff must establish: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. The Defendant does not need to disprove every element of Plaintiff's cause of action. Rather, the Defendant only need to present evidence that one or more of the elements of the cause of action for negligence cannot be established. Union Bank v. Los Angeles County Superior Court (1995) 31 Cal.App.4th 573, 583.

Continue reading "Sacramento Physicians Commit Malpractice By Discharging Patient Who Thereafter Died, Part 3 of 5" »

September 23, 2010

Patient From Sacramento Dies Due To Doctors' Malpractice, Part 2 of 5

(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.)

It is also 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.

STATEMENT OF FACTS

The Emergency Medical Service Report of April 18, 2006, noted that Plaintiff David Brown
("patient") was ticketed by police at the airport while on his way to Los Angeles. The paramedics arrived while Mr. Brown was in the custody of airport police and he was belligerent, uncooperative, and possibly intoxicated. It appears that Mr. Brown did not have a medical complaint. However, the police just wanted to check [the] patient before arrest. Therefore, Mr. Brown was taken to the emergency room at RMC. For more information you are welcome to contact , Moseley Collins.

On April 18, 2006, while the patient was in the , he was noted to be combative, uncooperative, and abusive. He was first seen by the emergency room physician, Dr. Owen Hill at approximately 1900 hours. Dr. Hal Smith noted ethanol intoxication as an impression, but the patient was allowed to leave the emergency department pursuant to his request because he refused a physical examination.

After being in the emergency room for approximately one hour, the patient left against medical advice, but refused to sign the form indicating that he was leaving against medical advice. Dr. Smith noted that the patient was awake, alert, fully oriented and ambulatory at the time of discharge. Mr. Brown was not booked by the police and was transferred to his residence.

Continue reading "Patient From Sacramento Dies Due To Doctors' Malpractice, Part 2 of 5" »

September 21, 2010

Sacramento Family Sues Hospital For Medical Malpractice, Part 1 of 5

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

It is also 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.

Defendant Owen Hill, M.D.'s Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support

Pursuant to Section 437c of the California Code of Civil Procedure, this summary judgment motion is brought on the grounds that there is no genuine issue of material fact and that Defendant is entitled to judgment as a matter of law. For more information you are welcome to contact , Moseley Collins.

This motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the Separate Statement of Undisputed Facts, all documents on file herein, and upon such other argument or evidence as may be presented to the Court at or prior to the hearing on this motion.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

On April 14, 2008, Plaintiff David Brown filed a Complaint against Defendant Owen Hill, M.D., along with co-defendant Regional Medical Center ("RMC"). The complaint purports a cause of action for against both defendants regarding his emergency room presentation at the hospital on April 18, 2006. Specifically, Plaintiff contends that "Defendants' actions were a violation of [S]ection 5150 of the Welfare and Institutions Code." Plaintiff further contends that Defendants failed to "give a complete diagnosis, to inform Plaintiff of his condition and to treat Plaintiff while defendants had Plaintiff in their care and custody."

Continue reading "Sacramento Family Sues Hospital For Medical Malpractice, Part 1 of 5" »

September 17, 2010

Mother Of Deceased Sacramento Woman Files Malpractice Suit Against Hospital, Part 3 of 3

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.)

Should [defendant/physicians] be ... designated, a full inquiry into their present opinions would be entirely appropriate. But ... the inquiry is not appropriate until and unless there is ... a[n] [expert] designation.

As we have seen, C.C.P. section 2034 is expressly applicable to the expert opinion of parties to a lawsuit. We see no reason to disrupt the carefully crafted legislative scheme for the regulation of discovery of the identity, qualifications and opinions of expert witnesses. The trial court order that the physician defendants testify at deposition about their present opinion of the medical propriety of their acts, even though they have not been designated as expert witnesses, would have that effect. It is for that reason that we direct that it be set aside. [Id. at pages 1455-1457].

Likewise, Province v. Center of Women's Health (1994) 20 Cal.App 4th 1673, involved a matter where a (by her mother/guardian ad litem) alleged defendants committed medical malpractice during her birth/delivery. For more information you are welcome to contact , Moseley Collins.

At trial, the Province defendant doctors elicited expert testimony from a pathologist who had examined the umbilical cord of plaintiff shortly after birth.

Continue reading "Mother Of Deceased Sacramento Woman Files Malpractice Suit Against Hospital, Part 3 of 3" »

September 15, 2010

Physician Malpractice Causes Wrongful Death At Sacramento Hospital, Part 2 of 3

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.)

California Courts have agreed with this proposition. The factual circumstances in County of L.A. v. Superior Ct. [Martinez](1990) 224 Cal.App. 3d 1446 are similar to the facts herein. In County, plaintiff (mother of child) alleged that defendant physicians had committed malpractice in attending to plaintiff's delivery of her child and as a result the child suffered severe brain damage.

During discovery, County defendant doctors refused to answer expert questions during depositions arguing that expert testimony was premature since the time in which to serve expert designations under §2034 had not yet run. Plaintiffs Motion to Compel testimony was granted; and defendant doctors appealed. For more information you are welcome to contact , Moseley Collins.

The Appellate Court reversed the Trial Court's Motion to compel and held that defendant doctors not be required to provide expert opinion at subject depositions. In making its decision, the Court stated in pertinent part:

Continue reading "Physician Malpractice Causes Wrongful Death At Sacramento Hospital, Part 2 of 3" »

September 13, 2010

Sacramento Hospital Malpractice Lawsuit Involves Battle Of Experts, Part 1 of 3

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.)

Plaintiff Kim Smith’s Motion in Limine: To Preclude Expert Testimony of Defendant Medical Doctor as an Expert

Plaintiff hereby moves this Court for the following Motion in Limine and Order to preclude Defendants, their counsel, or witnesses from directly or indirectly attempting to introduce into evidence, opening statement or closing argument, the following matters:

TO PRECLUDE EXPERT TESTIMONY OF DEFENDANT MEDICAL DOCTOR AS AN EXPERT

This is a where physician defendant breached the standard of care. As a result of defendant's negligence there has been severe injury.

Defendant served a designation of expert witnesses, per Code of Civil Procedure §2034. For more information you are welcome to contact , Moseley Collins.

DEFENDANT DID NOT DESIGNATE HIMSELF AS AN EXPERT NOR HAS A DEFENDANT BEEN DEPOSED AS AN EXPERT WITNESS.

C.C.P. §2034(1) states that:

Continue reading "Sacramento Hospital Malpractice Lawsuit Involves Battle Of Experts, Part 1 of 3" »

September 10, 2010

Malpractice Action Filed On Behalf Of Sacramento Woman Who Bled To Death In Hospital, Part 3 of 3

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.)

LIABILITY

Plaintiff contends that with respect to the care of Kim Smith. Dr.Hall was the captain of the ship regarding the surgery. Fields v. Yusuf (2006) 144 Cal. App. 4th 1381, 51 Cal. Rptr. 3d 277 holds the captain of the ship doctrine imposes liability on a surgeon under the doctrine of respondeat superior for the acts of those under the surgeons special supervision and control during the operation.

Dr. Lee breached the standard of care as he was performing the actual part of procedure that led to Ms. Smith's demise. For more information you are welcome to contact , Moseley Collins.

Additionally, plaintiff was under sole care of defendant(s) at the time of the incident and Drs. Hall and Lee have liability on res ipsa theory.

Dr. White negligently failed to medicate and "worked up" decedent's underlying infection, leading to full device system infection, which was the underlying cause of the need for surgery. True copies of the curriculum vitae of John Black, M..D. and Ray Brown, M.D., and a copy of the declaration of Dr. Black regarding Dr. Lee are available.

Continue reading "Malpractice Action Filed On Behalf Of Sacramento Woman Who Bled To Death In Hospital, Part 3 of 3" »

September 7, 2010

Sacramento Doctors' Mistakes Cause Patient To Bleed To Death In Hospital, Part 2 of 3

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.)

The decision was made to open up decedent's chest. There was absolutely no blood in the pericardium. The right chest was filled with blood. Large bore catheters were placed including one on the atrium. Rapid blood and fluid infusion was implemented. For more information you are welcome to contact , Moseley Collins.

On exploration, Dr. Hall found shearing of the right subclavian vein, innominate vein and complete shredding of the superior vena cava. The AICD lead (i.e. the V-lead) was found to have a large swath of superior vena cava and parietal pleura. The azygos vein had been sheared and retracted deep into the chest and was bleeding swiftly. Needless to say, .

In the circumstances of this case, the applicable standard of care required the surgeons (i.e. Hall and Gamic) to stop the procedure when there were drops in blood pressure while "tugging on the lead." It is common for defibrillator lead, which have coils attached, to become overgrown with tissue in the vessels. This is why one must proceed with caution when trying to cut or lase the leads free of the vessels. Subject defendant physicians should have halted the procedure to assess the problem and explore alternatives, e.g. use of fluoroscopy to explore the area to determine the cause and extent to the problem, use of trans-esophogeal echo to evaluate, etc. The fact the blood pressure was dropping upon "tugging" of the lead and rebounding when traction on the lead was released is evidence the lead was firmly attached to the vessel, and the blood pressure drop was either a reflex from pulling on the myocardium or from blood loss. Either one of these situations would require halting the procedure to evaluate the situation and assess proper action.

Continue reading "Sacramento Doctors' Mistakes Cause Patient To Bleed To Death In Hospital, Part 2 of 3" »

September 3, 2010

Sacramento Woman Dies In Hospital Due To Surgeon's Errors, Part 1 of 3

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.)

PLAINTIFF'S TRIAL BRIEF

INTRODUCTION

This is a .

Decedent, Kim Smith (DOB: XX/XX/63; DOD: XX/XX/08), developed pregnancy-related cardiomyopathy in 2003 and was fitted with a AICD (Automatic Implantable Cardioverter Defibrillator). She had five children - 3 minors aged 4, 10 and 13.

On November 8, 2008, decedent had surgery at Memorial Hospital for replacement of the defibrillator (by surgeon, Phillip White). She had infection following this surgery and was readmitted December 20-22, 2008. Discharge diagnosis was left chest cellulitis at site of AICD with a culture positive for pseudomonas aeruginosa. For more information you are welcome to contact , Moseley Collins.

Decedent was scheduled for pacemaker and lead extraction secondary to the infection at Memorial Hospital by David Hall (surgeon) on January 19, 2009. This is a percutaneous laser lead extraction. Stephen Lee, an interventional radiologist, was the assistant surgeon. Dr. Lee operated the laser lead extractor during the procedure.

Continue reading "Sacramento Woman Dies In Hospital Due To Surgeon's Errors, Part 1 of 3" »

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" »

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" »

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" »

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" »

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" »

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" »

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" »

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" »

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" »

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" »

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:


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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.

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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.

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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.]

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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].

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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.

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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.

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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].

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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)).

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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.

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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.)

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