Sacramento Personal Injury Lawyer Blog

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, 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 personal injury case and its proceedings.)

Issues before the Court for Trial

Informed Consent

Dr. Black had a duty to inform his patient of the risks associated with the procedure to be performed. He breached that duty by failing to properly provide that information. Instead, he relied upon a consent form which, in fact, did not detail any of the risks other than to simply state that risks do exist.

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

Dr. Black suffers from a nervous condition that causes his hands to tremble when he is stressed. He failed to disclose his condition to Ms. Hill. During the endoscopy he perforated approximately 60% of the circumference of the colon. He claims the colon was perforated 3-4 days earlier from some unknown cause. This most likely occurred from his handling of the colonoscope itself, perhaps mishandled by trembling hands.

For failure to disclose risk of perforation and failure to disclose his nervous disorder, the consent provided by Ms. Hill was not informed consent. As such, Dr. Black lacked consent for the procedure that would eventually send Ms. Hill into excruciating pain and land her in the Intensive Care Unit at Universal Hospital. Performing a medical procedure in the absence of informed consent is a battery.

Continue reading " Sacramento Patient Sues Doctor For Her Perforated Colon, Part 3 of 4 " »

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, 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 personal injury case and its proceedings.)

Facts

On March 23, 2007, defendant Stefan Black, M.D., performed a colonoscopy on Ms. Hill, who was then 76 years old. He advised her that the procedure carries a risk of bleeding, but Dr. Black admits that be failed to warn her that perforation of the colon is a risk of the procedure.Ms. Hill did in fact suffer a perforation, with complications causing subcutaneous emphysema and requiring a colostomy. There were three hospital stays and two surgeries as a result. There is a factual dispute as to whether Dr. Black caused the perforation on the colon perforated ,sua sponte, three to four days earlier.

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

However, there is no dispute that Dr. Black knew of the risk that this injury could occur and that he failed to provide warning of such risk when obtaining consent for the procedure.

Dr. Black filed two separate reports detailing Ms. Hill's colonoscopy that day. These reports directly conflict one another. It appears that the incorrect report was the one provided to the surgeon who eventually operated on Ms. Hill later that day.

Continue reading " Medical Negligence And Battery Suit Filed Against Sacramento Doctors, Part 2 of 4 " »

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, 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 personal injury case and its proceedings.)

PLAINTIFF DONNA HILL’S TRIAL BRIEF

Plaintiff, Donna Hill, submits her brief on matters set for trial on March 8, 2010:

Plaintiff alleges that Defendant Stefan Black was negligent and committed battery in his medical care and treatment of her, and that such negligence and battery caused her pain, suffering loss of income, and undue expenses.

Status of the Case

Plaintiff brought this action on June 13, 2007. She was abandoned by counsel in December 2010, and therefore was unexpectedly in Pro Per.

A settlement conference (MSC) was scheduled for January 5, 2010. Plaintiff obtained interim counsel for the MSC. A few days before the MSC, said counsel suffered serious injury. The undersigned counsel, Michael White, stepped in on an emergency basis for the MSC alone.Plaintiff's original counsel erroneously informed Plaintiff, in writing, that the MSC would be in Roseville. In fact, the MSC was scheduled in Sacramento. Upon determining the error, Mr. White phoned defendant's counsel David Wang and was soon informed by counsel that the court would not see the parties by the time Plaintiff would arrive to Sacramento.

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

Continue reading " Sacramento Woman Files Malpractice Lawsuit Against Her Doctor, Part 1 of 4 " »

It is worth noting that situations similar to those described in this wrongful death 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 elder abuse and personal injury case and its proceedings.)

It was both legally foreseeable and plainly obvious that such advice and conduct would cause Mrs. White severe emotional distress because it was clear Mrs. White would never be able to care for her husband at home. Thus, a direct victim claim for NIED is both properly pleaded and legally tenable against defendant Wong.

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

Plaintiffs’ NIED claim also meets the requirements of a so-called "bystander" emotional distress claim. It is alleged in paragraph 53 that Mrs. White believed that the decision to discharge her husband was wrong and not in his best interests, but she acceded to the recommendation of her husband's physician because she felt she had no choice. Thus, Mrs. White has pleaded that she experienced the wrongfulness of the defendant's conduct and then personally witnessed the injury and damage to her husband caused by that conduct. Thus, the bystander claim has been properly pleaded.

Continue reading " Reckless Conduct And Elder Abuse At Sacramento Hospital Results In Patient's Death, Part 8 of 8 " »

It is worth noting that situations similar to those described in this wrongful death 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 elder abuse and personal injury case and its proceedings.)

Plaintiff Has Properly Pleaded A Cause Of Action For Negligent Infliction Of Emotional Distress As To Defendant Wong

Debra White, as an alternative claim to the intentional infliction of emotional distress cause of action, asserts a claim for negligent infliction of emotional distress.

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

One of the bases for a "direct victim" claim for NIED is the negligent breach of a duty arising out a pre-existing relationship. Burgess v. Superior Court (1992) 2 Cal. 4th 1064 is the controlling authority on that cause of action. In that case, a mother was permitted to bring an action for NIED when her fetus was allegedly injured by negligence during delivery. The Court reasoned that there was a pre-existing relationship between the mother and the defendant physician such that a duty of ordinary care flowed from the physician to the mother.

The facts alleged in the Fifth Cause of Action allege an analogous case of pre-existing relationship.

Continue reading " Medical Negligence By Sacramento Physician Leads To Elder's Death, Part 7 of 8 " »

It is worth noting that situations similar to those described in this wrongful death 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 elder abuse and personal injury case and its proceedings.)

The Fourth Cause Of Action For Intentional Infliction Of Emotional Distress Is Properly Pleaded

Defendant Dr. Wong also demurs to the Fourth Cause of Action alleging intentional infliction of emotional distress as caused by him to plaintiff Debra White.

It should be noted that this claim was made against Dr. Wong and other defendants in the original complaint in this action. In ruling on the demurrer of co-defendants Universal and Sutter VNA, the Court granted the demurrer with leave to amend, observing that it appeared that the conduct alleged appeared to be "outrageous," but that more specific pleading as to each defendant's conduct was necessary.

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

The quality of the conduct asserted against Universal in this cause of action is virtually identical to that asserted against Dr. Wong. The allegations of the Fourth Cause of Action incorporate those of the proceeding causes of action, including the Second Cause of Action, the content of which is summarized above. Together the allegations of the Fourth Cause of Action allege that Dr. Wong knew that Mr. White suffered from multiple hospital-caused conditions which made it impossible for him to be discharged home, including a Stage IV pressure ulcer, bowel impaction with frequent liquid stools, immobility, orthopedic injury, and inability to care for himself. These conditions required 24-hour care from skilled providers. Dr. Wong knew that Mrs. White was in a vulnerable emotional state from witnessing her husband's decline and deterioration while at Universal and National. Nevertheles, Dr. Wong led Mrs. White to believe that she would be able to care for her husband at home, a representation that he could not believe was true. Relying upon such advice, Mrs. White agreed to the discharge of her husband to her home on March 27, 2008.

Continue reading " Sacramento Woman Suffers Extreme Emotional Distress Due To Elder Abuse Of Husband, Part 6 of 8 " »

It is worth noting that situations similar to those described in this wrongful death 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 elder abuse and personal injury case and its proceedings.)

As a result of clear and reckless indifference on the part of Dr. Wong, Mr. White was discharged home, did not receive the skilled care he needed and suffered multiple injuries and damage, including the progress of a large fecal impaction, explosive diarrhea, bloody stools, hypokalemia, volume depletion, weakness, cognitive deterioration, malnutrition, hypotension, and a persistent and progressive Stage IV pressure ulcer. These were the conditions from which he was found to be suffering when emergently readmitted to Universal from his home on April 4, 2008.

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

Taking these allegations to be true, as the Court must on demurrer, it is difficult to imagine how defendant can seriously argue that such conduct is defensible or at worst an act of inadvertence or oversight, as he seems to do in his moving papers. The allegations of the Second Amended Complaint do not describe conduct that merely breaches some standard of care in the rendition of medical services.

Continue reading " Malnourished Sacramento Man Discharged From Nursing Home By Reckless Doctor, Part 5 of 8 " »

It is worth noting that situations similar to those described in this wrongful death 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 elder abuse and personal injury case and its proceedings.)

The Second Cause of Action incorporates all of the allegations of the First Cause of Action, which in detail describes the course of neglect which had occurred to Mr. White at Universal before his transfer to National, including the development of a severe Stage IV pressure ulcer, bowel impaction with fecal leakage, and mechanical fall resulting in orthopedic injuries to the neck, wrist and hand, and malnutrition. These conditions, it is alleged, persisted and were not resolved while Mr. White was a patient at National under Dr. Wong's care.

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

Paragraph 32 of the Second Cause of Action alleges that on and prior to March 27, 2008, Mr. White was in such a debilitated condition that he was not suitable for being discharged to his home. Mr. White’s wife, Debra White, was 75 years of age at the time, and she had no experience or training in caring for a person in her husband's condition. Dr. Wong then ordered that Mrs. White be trained by hospital staff to care for her husband at home. The care her husband needed was, inter alia, frequent diaper changes, turning him every two hours around the clock and caring for and dressing a large Stage IV pressure ulcer on her husband's sacrum.

Continue reading " Wife Files Lawsuit After Wrongful Death Of Husband Due To Sacramento Elder Abuse, Part 4 of 8 " »

It is worth noting that situations similar to those described in this wrongful death 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 elder abuse and personal injury case and its proceedings.)

The enhanced remedies that are available upon proof of reckless neglect of an elder include survival of general damages for pain, suffering, and emotional distress sustained by an elder who has since died, and attorney's fees. Welfare and Institutions Code §15657.

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

Physicians 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 Elder Abuse Statutes 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 second cause of action of the Complaint and each is supported by specifically alleged facts. Those allegations together may be summarized as follows:

Harry White was an elder entitled to the protection of the Elder Abuse Act.

Continue reading " Reckless Neglect Of Elder By Sacramento Doctor Results In Death, Part 3 of 8 " »

It is worth noting that situations similar to those described in this wrongful death 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 elder abuse and personal injury 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 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 Complaint were stipulated to be true, the defendant could not argue that the plaintiffs would not be entitled to a verdict under the Elder Abuse statues. This is another way of expressing the standard for judging a demurrer. When fairly viewed in this way, it is clear that defendant's demurrer is without merit.

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

The Second Cause of Action Alleging Violations of the Elder Abuse Statutes Is Properly Pleaded

Defendant concedes that a cause of action for elder abuse under California Welfare and Institutions Code §15600 et seq., is a separate and distinct claim from medical negligence.

Continue reading " Sacramento Hospice Charged With Elder Abuse, Part 2 of 8 " »

It is worth noting that situations similar to those described in this wrongful death 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 note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

Plaintiffs' Memorandum of Points and Authorities in Opposition to Demurrer of Defendant Edward Wong, M.D. to Plaintiffs' First Amended Complaint

INTRODUCTION

This is an action for damages brought by Debra White, surviving spouse of Harry White, deceased, and Paul White, the son of Harry White.

Defendant Edward Wong demurs to the Second Cause of Action of the First Amended Complaint alleging reckless neglect of an elder in violation of the Elder Abuse statutes. He also demurs to the Fourth Cause of Action alleging Intentional Infliction of Emotional Distress and the Fifth Cause of Action for Negligent Infliction of Emotional Distress.

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

The Second Cause of Action alleges a violation of the Elder Abuse Statues (Welfare & Institutions Code §15600 et seq.) and asserts that, as Harry White's treating physician, Dr. Wong was charged with the duty of making orders that promoted the welfare, safety and health of his patient, Harry White. It is alleged that Dr. Wong acted with reckless neglect of his patient when he discharged Mr. White home from the National Rehabilitation Center with a host of severe medical problems.

Continue reading " Sacramento Family Sues For Elder Abuse Of Parent, Part 1 of 8 " »