Sacramento Personal Injury Lawyer Blog

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 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 wrongful death case and its proceedings.)

SUMMARY JUDGMENT MUST BE GRANTED AS A MATTER OF LAW WHEN NO TRIABLE ISSUE OF MATERIAL FACT EXISTS

A motion for summary judgment must be granted if there is no triable issue as to any material fact. California Code of Civil Procedure §437c(c). The court has no discretion to refuse summary judgment where the evidence before the court discloses no triable issue as to any material fact; the moving party is entitled to judgment as a matter of law. Drasley v. Superior Court (1980) 101 Cal.App.3d 425, 427; see also Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759. Summary judgment is an efficient and expeditious method of disposing of unmeritorious cases. Judge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70 (holding that [i]t is in the public interest, including the court's interest in the efficient and economical administration of justice and the parties' interest in the prompt and affordable resolution of unmeritorious cases, to expeditiously rid the judicial system of a case in which a party is entitled to judgment as a matter of law, without requiring protracted litigation and a trial on the matter ).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The proper case for summary judgment is one in which the plaintiff cannot prevail because there is no substantial controversy as to any of the issues raised.

Continue reading " Negligent Doctors Cause Death Of Sacramento Woman, Part 4 of 10 " »

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 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 wrongful death case and its proceedings.)

STATEMENT OF FACTS

Plaintiffs' decedent, Kim Smith, was admitted to Memorial Medical Center on November 7, 2008, by Dr. Phillip White for replacement of a cardiac-resynchronation implantable defibrillator (CRT-D) pulse generator that had reached the battery's elective replacement indicator. Insertion of a coronary sinus lead for left-ventricular pacing was also planned. The previously implanted system consisted of a Medtronic Model 7277 InSync Marquis pulse generator, Model 5076 transvenous atrial lead, Model 6947 transvenous right-ventricular lead, and Model 5071 epicardial left-ventricular lead. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On November 8, 2008, Dr. White performed a CRT-D generator replacement (with a Medtronic Model C154DWK Concerto generator), pocket revision, and removal of lipoma. The coronary sinus was cannulated, but no lead was deployed because the target vessels were too small. No complications were noted. Postoperatively, Ms. Smith did not exhibit any signs or symptoms of infection. She was discharged home on November 10, 2008.

Subsequent to her discharge from Memorial Medical Center, Ms. Smith was seen in office for a follow-up by her general practitioner, Dr. Hernandez. On November 15, 2008, Dr. Hernandez diagnosed Ms. Smith with left chest wall wound infection and prescribed her Rocephin and Keflex. Dr. Hernandez continued to follow Ms. Smith in his office on November 18, November 25, November 27, November 30, and December 7, 2008. On December 20, 2008, Ms. Smith presented to the Emergency Room at Memorial Medical Center with complaints of redness and pain at the site of the CRT-D pulse generator. She was diagnosed with an infected CRT-D pocket and cellulitis.

Continue reading " Surgical Errors Cause Sacramento Patient's Death, Part 3 of 10 " »

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 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 wrongful death case and its proceedings.)

As will be discussed more fully below, and in the declaration of defendant's expert, Dr. Stanley Choo, no act or omission on the part of Memorial Medical Center employees caused or contributed to any injury or damage to the plaintiffs' decedent, Ms. Smith. The infection that occurred subsequent to Ms. Smith's surgery is a known risk of the procedure and a risk that can occur in the absence of negligence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further, as is set forth in the declaration of Deborah Wong, infection control officer for Memorial Medical Center, in November 2008, the Department of Health conducted an intensive investigation into Pseudomonas infections at Memorial Medical Center based on a slightly increased rate of Pseudomonas infections which occurred in the Neonatal Intensive Care Unit (the NICU). The Department of Public Health determined that none of the adult patients infected with Pseudomonas at Memorial Medical Center in November and December 2008 were infected with the same strain of Pseudomonas that occurred in the NICU. Therefore, Ms. Smith's Pseudomonas infection was not related to the "outbreak" of Pseudomonas in the NICU in 2008, as alleged by the plaintiffs in this case.

Continue reading " Family From Sacramento Sues Doctors For Malpractice, Part 2 of 10 " »

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 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 wrongful death case and its proceedings.)

Motion for Summary Judgment; Memorandum of Points and Authorities in Support

Defendant MEMORIAL MEDICAL CENTER, will move this Court for an Order granting summary judgment in their favor and dismissing, with prejudice, Plaintiffs' Complaint on file herein.

INTRODUCTION

This is a wrongful death/product liability/medical malpractice action against Memorial Medical Center and others in connection with the death of plaintiff's decedent Kim Smith at University Hospital on January 19, 2009. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Ms. Smith underwent surgery by co-defendant, Dr. Phillip White at Memorial Medical Center in November 2008, for replacement of a pacemaker generator and defibrillator device (CRT-D). (Dr. White was not an employee of Memorial Medical Center.)

Continue reading " Sacramento Woman Sues Hospital For Wrongful Death, Part 1 of 10 " »

(Please 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.)

It is also worth noting that situations similar to those described in this medical negligence 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 HAS ALLEGED SUFFICIENT FACTS OF PUNITIVE DAMAGES

In passing on the correctness of a ruling on a motion to strike, the allegations of the complaint must be read as a whole, all parts in their context, and the court must assume the truth of the allegations. Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91. In ruling on a motion to strike, courts do not read allegations in isolation. Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Civil Code §3294(a) provides that when a defendant is guilty of oppression, malice or fraud, plaintiff may recover punitive damages. Civil Code § 3294(c) defines the terms malice and oppression:

(1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

Under Civil Code §3294, the terms willful, malicious, and oppressive are the statutory description of the type of conduct which can sustain a claim for punitive damages. [W]here the complaint pleads sufficient facts to apprise the defendant of the basis upon which relief is sought and to permit the drawing of appropriate legal conclusions at trial, absence of the labels willful, malicious, and oppressive from the complaint, does not defeat the claim for punitive damages. Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.

Continue reading " Fraudulent, Malicious Conduct By Sacramento Nursing Facility Results In Wrongful Death, Part 10 of 10 " »

(Please 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.)

It is also worth noting that situations similar to those described in this medical negligence 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 UNCERTAINTY ARGUMENT FAILS

When a demurrer is made upon the ground of uncertainty, National was required to specify exactly how and why the pleading is uncertain and where such uncertainty appears. Good practice requires reference to page and line. See, Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809. As noted in the treatise, California Practice Guide, Civil Procedure Before Trial, (TRG 2009) 7:88:1, page 7(1)-38, Although not specifically required by CRC 3.1230(a), a demurrer for uncertainty should refer by page and line number to the particular allegations or part of the pleading that is uncertain. Plaintiff should not have search or guess. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant sets forth in its notice, but does not provide any argument in its Points & Authorities, that the first cause of action is uncertain, without citing to any page or line, as to facts of defendant's officer, director or managing agent's reckless conduct. As discussed above, to meet the standard of Civil Code §3294(b), plaintiff has the option of pleading that Defendant's officer, director, or managing agent had advance knowledge of the unfitness of individual employees and employed him/her with a knowing disregard of the rights or safety of others or Defendant's officer, director, or managing agent ratified the conduct of defendant's employees. The issue is the sufficiency of the facts of defendant's ratification of what this court has already held are sufficiently stated facts of defendant's staff's reckless neglect of Mr. White.

Continue reading " Sacramento Elder Abuse Leads To Lawsuit Against Nursing Home, Part 9 of 10 " »

(Please 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.)

It is also worth noting that situations similar to those described in this medical negligence 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.

INSUFFICIENT STAFFING AND UNFIT EMPLOYEES

Although plaintiff has pled sufficient facts of defendant's ratification, as set forth above, plaintiff has also alleged sufficient facts that a managing agent of defendant had advance knowledge of the unfitness of individual employees and defendant continued to employee that person with a knowing disregard of the rights or safety of others. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Reading the First Amended Complaint as a whole, and in context, a reasonable inference that may be drawn from the facts that defendant violated the Patient Care Plan, physician orders and policies and procedures and fed Mr. White solid food and failed to reposition Mr. White as required to avoid his developing serious bed pressure sores, is that defendant was understaffed and certain staff was incompetent and unfit for the job of providing care to Mr. White.

Plaintiff has alleged that Defendant failed to employ sufficient and adequate staff to meet the care needs of Mr. White, including failing to employ sufficient numbers of supervising staff to oversee and monitor patient care, including responding to complaints and requests for investigations.

Continue reading " Sacramento Nursing Home Failed To Use Adequate Staff As Patient Dies, Part 8 of 10 " »

(Please 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.)

It is also worth noting that situations similar to those described in this medical negligence 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.

A managing agent is a corporate employee who exercises substantial independent authority and judgment in decision-making so that the decisions ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567, 577.) As the California Supreme Court has held, supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents. (White, supra, at 577 (emphasis added).) Plaintiff has alleged ratifying conduct of defendant's Managing Agents - its administrator and various Supervisors. Defendant's contention, however, that the administrator or the Supervisors may not be "managing agents," is inappropriate argument of what it believes the evidence may or may not establish at the time of trial on this issue, which of course, is not the standard on a demurrer. It is not the function of a demurrer to test the truth of the plaintiffs allegations or the accuracy with which he describes the defendant's conduct. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It "admits the truth of all material factual allegations in the complaint ..."; the question of a plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) Accordingly, defendant's reliance on Kelly-Zurian v. Wohl Shoe Co.(1994) 22 Cal.App.4th 397 is erroneous. In Kelly-Zurian, a sexual harassment case, the court of appeal determined that, based on the evidence presented at the trial, there was insufficient evidence to prove that the plaintiff's supervisor was a managing agent of the defendant. The issue was the sufficiency of the evidence. Contrary to defendant's assertion, the case does not hold that an administrator is not a managing agent.

Continue reading " Sacramento Family Files Suit For Wrongful Death In Nursing Facility, Part 7 of 10 " »

(Please 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.)

It is also worth noting that situations similar to those described in this medical negligence 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.

Ratification may be express or implied based on the conduct of the principal from which an intention to consent to or adopt the act may be fairly inferred. Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73. The word, ratify means to approve and sanction; to make valid; to confirm; to give sanction to; to authorize or otherwise approve conduct retroactively, either expressly or by implication. Black's Law Dictionary (6th ed. 1990) p. 1262, col. 1].For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Ratification ... may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee's actions by the corporate agent. Such ratification may be inferred from the fact that the employer, after being informed of the employee's actions, does not fully investigate and fails to repudiate the employee's conduct by. redressing the harm done and punishing or discharging the employee. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 621.) Failure to repudiate a party's acts is itself evidence of ratification. Streetscenes v. ITC Entertainment Group, Inc. (2002) 103 Cal.App.4th 233.

The inferences which may be drawn from all of these facts is that Defendant's managing agents - the supervising nurses, the supervisor of defendant's social services department, and Defendant's administrator, knew of the staff's violation of Mr. White's Patient Care Plan, physician's orders, and policies and procedures, and by dismissing the complaints and refusing to investigate, attempted to hide or deny these facts.

Continue reading " Nursing Facility Patient Dies Despite Sacramento Family's Pleas For Help, Part 6 of 10 " »

(Please 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.)

It is also worth noting that situations similar to those described in this medical negligence 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.

FAILURE TO INVESTIGATE

Within the context of defendant's staff and supervising nurses failing to follow defendant's own Patient Care Plan and proper policies and procedures, and feeding Mr. White solid food, and failing to reposition him when required, as set forth above, Plaintiff has alleged that plaintiff's family and friends complained to not only the supervising nurses, but also the social service supervisors, while Mr. White was still alive and under defendant's care. On several occasions, plaintiff's family complained to the supervising nurses on duty that Mr. White should not be given solid foods, which were dismissed by the supervisor, as the conduct continued, and for which defendant's supervising staff refused to investigate.

Defendant's supervising staff failed to notify Mr. White's responsible family about the development and progression of the infected sacral ulcer. Notwithstanding these repeated complaints, defendant's supervising nurses failed to ensure quality assurance to the physician's orders and appropriate patient care, and the Patient Care Plans, in violation of Title 42 of the Federal Code of Regulations §482.23(B). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

After Mr. White was rendered ventilator dependent and bedridden, Mr. White's brother contacted National 's supervising staff of social services and complained that his brother had been provided solid foods in violation of the swallowing problems and the orders for a puree diet. He requested defendant's supervisors to provide an explanation for the situation, and requested an investigation. Defendant's supervising agent of social services was dismissive, as had been the supervising nurses.

Continue reading " Wrongful Death Of Sacramento Man At Nursing Home Due To Staff's Failure To Investigate, Part 5 of 10 " »

(Please 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.)

It is also worth noting that situations similar to those described in this medical negligence 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.

FACTS ALLEGED OF DEFENDANT'S RATIFICATION OF THE RECKLESS NEGLECT

For the purposes of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded and the reasonable inferences that may be drawn from those facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828; Serrano v. Priest (1971) 5 Cal.3d 584, 591. The court must give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Blank, supra, at 318; Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff has alleged facts to meet the standard of Civil Code §3294(b) that defendant National approved of and ratified each wrongful act and omission of its employees, by one or more of the following: (a) by failing to discipline, reprimand or terminate any said employee or DOE Defendant, (b) by not filing or causing to file any mandatory report of suspected elder abuse or neglect pursuant to Welfare & Institutions Code §15630, (c) by billing and accepting payment for the wrongful conduct, (d) by failing to repudiate the wrongful acts and omissions as hereafter alleged, (e) by knowingly employing incompetent personnel, and (f) by knowingly failing to maintain MEDICARE federal regulatory requirements in terms of qualify of care, staffing, and quality control measures pursuant to Title 42 of the Federal Code of Regulations, §482. (See Part 5 of 10.)

Continue reading " Reckless Neglect At Sacramento Nursing Home Has Catastrophic Consequences, Part 4 of 10 " »

(Please 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.)

It is also worth noting that situations similar to those described in this medical negligence 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.

SUMMARY OF FACTS cont.

On several occasions, Mr. White's family and friends lodged complaints with Defendant's on-duty supervising nurses that Mr. White should not to be given solid foods, which defendant's supervising agents disregarded and dismissed. In disregard of the Patient Care Plan, and these specific complaints to defendant's supervising nurse, defendant continued giving Mr. White solid food. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On or about September 28, 2006, Mr. White was again given solid food by defendant's nursing staff causing him to choke on his food, vomit and aspirate into his lungs. The aspiration event caused prolonged respiratory failure with permanent cognitive deficits, physical injury and overall deterioration in Mr. White's overall functioning. As a result of the food induced aspiration Mr. White was taken to the ICU where he was placed on a ventilator due to his inability to breath without mechanical assistance. Plaintiff was subsequently provided a tracheotomy and a feeding tube and was rendered bed ridden requiring total assistance with his daily care.

Following the September 28th aspiration, Mr. White remained a patient at National through October 23, 2006, and was fully dependent on defendant for repositioning while in bed to prevent the development of bed pressure sores, ulcerations and skin irregularities.

Continue reading " Sacramento Nursing Facility Patient Dies Due To Lack Of Nutrition, Part 3 of 10 " »

(Please 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.)

It is also worth noting that situations similar to those described in this medical negligence 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.

Civil Code §3294(b) provides:

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Therefore, to establish a violation of the Elder Abuse Act by a corporate employer, the plaintiff must plead and prove at only one of the following:

1. Defendant's officer, director, or managing agent recklessly neglected plaintiff; or,
2. Defendant's officer, director, or managing agent had advance knowledge of the unfitness of individual employees and employed him/her with a knowing disregard of the rights or safety of others; or
3. Defendant's officer, director, or managing agent authorized the conduct of defendant's employee(s); or
4. Defendant's officer, director, or managing agent knew of the defendant's employee(s)'s wrongful conduct and adopted or approved the conduct after it occurred. (CACI3105, W&I §15657(c) and Civil Code §3294(b)).

Continue reading " Sacramento Skilled Nursing Facility Sued For Negligent Employee Conduct, Part 2 of 10 " »