Sacramento Personal Injury Lawyer Blog

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, 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 lawsuit and its proceedings.)

As to the motion attacking Plaintiff's claim of wilful misconduct, XYZ Care fails in the fundamental purpose of providing Plaintiff of any form of notice as to the issues presented by the motion for summary adjudication. The issue, as set forth ("plaintiffs have no evidence that moving defendant committed any intentional wrongful conduct toward plaintiffs' decedent") is too broadly stated to provide any meaningful notice which would comply with the due process aspect of the separate statement as expressed in Elcome and San Diego Watercrafts, supra. Defendants' initial burden in bringing a motion for summary adjudication is to show that one or more elements of claim cannot be established. Marron, supra.

Accordingly, in compliance with the obligation of the moving party to provide adequate notice, in the notice of motion and Separate Statement, it is incumbent to frame the issues in such a manner that Plaintiffs are informed what element or elements of the claim Defendant asserts the purported undisputed facts prove cannot be established. Otherwise, Plaintiffs (and the court) is left to speculate what element of the claim (i.e., what element of Wilful Misconduct, - duty, breach, knowledge of peril, knowledge of probable injury, failure to avoid peril, causation or damages) is under scrutiny, and for which opposing evidence must be presented.

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

Continue reading "Gross Neglect By Sacramento Nursing Home Staff Leads To Elder Abuse Suit, Part 8 of 8" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, 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 lawsuit and its proceedings.)

DEFENDANT'S STATEMENT OF ISSUES IS DEFICIENT AS TO THE CLAIM FOR WILFUL MISCONDUCT AND ACCORDINGLY THE MOTION AS TO THAT CLAIM MUST BE DENIED

In a motion for summary adjudication, the moving party must specifically state in their motion and Separate Statement the specific causes of action, defenses, issues of duty and or claims of damages upon which summary adjudication is sought. Moreover, a defendant bringing a motion for summary adjudication "must ... show one or more elements of a cause of action cannot be established." Marron v. Superior Court (2002) 104 Cal.App.4th 388, 392. The purpose of the Separate Statement is to inform the opposing party of what issues and undisputed material facts they must address in order to defeat the motion. Elcome v. Chin (2003) 110 Cal.App.4th 310, 322.

Where a remedy as drastic as summary judgment is involved, due process requires a party to be fully advised of all the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.

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

Continue reading "Sacramento Man Suffers Catastrophic Injuries At Nursing Facility, Part 7 of 8" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, 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 lawsuit and its proceedings.)

THE SEPARATE STATEMENT'S FAILURES TO COMPLY WITH RULE 3.1350 SHOULD LEAD THE COURT TO DENY THE MOTION

The separate statement contains no specific reference to evidence, making the purported facts impossible to affirm or dispute.

Rule 3.1350, California Rules of Court, provides:

(d) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

Instead of setting forth a specific reference to portions of the interrogatories and answers as evidence in support of the claimed undisputed fact, movants were content to generally refer to the discovery responses in general, and to summarize and characterize the evidence. The tactic seems to be to claim the absence of facts by offering movants' counsel's summary of discovery.

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

Continue reading "Sacramento Man's Familiy Files Elder Abuse Claim Against Doctors, Part 6 of 8" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, 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 lawsuit and its proceedings.)

The separate statement provides what it purports to be a summary of responses to interrogatories 25 and 45, but fails to make reference to the specific portions of the lengthy discovery responses it purports to summarize. Moreover, there is no reference to or summary of the voluminous medical records with Plaintiffs response refers to and incorporates under C.C.P. §2030.230. Accordingly, the separate statement is deficient. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers. California Rules of Court, Rule 3.1350(d).

It is not the court's (or Plaintiffs') responsibility to pour over lengthy documents to find the evidence on which defendants rely to determine whether defendants' characterization of the interrogatories and plaintiffs' responses, are accurate. The "Golden Rule of Summary Adjudication" is: "If it is not set forth in the separate statement, it does not exist." Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208. Defendants' deficient separate statement makes the in determining the presence or absence of material issues of fact extremely difficult if not impossible. If defendants had asked discrete questions requesting factual support for each element of each cause of action and provided the response thereto, perhaps it would be a more a manageable task.

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

Continue reading "Parties Battle Over Factual Basis For Sacramento Elder Abuse Suit, Part 5 of 8" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, 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 lawsuit and its proceedings.)

Further, the motion completely ignores and fails to address the fact that Plaintiffs' discovery responses include exercise of Plaintiffs' right to respond to the interrogatories by reference to documents where the response calls for a compilation, audit, abstract or summary of records. See C.C.P. §2030.230. After setting forth seven pages of facts, Plaintiffs discovery responses state:

A further response to this interrogatory would require a compilation, abstract, audit or summary of the medical records of Paul Hill's health care providers, the burden and expense of preparation of which would be substantially the same for the propounding party, and accordingly Plaintiff responds under C.C.P. §2030.230 and refers to the medical records of Paul Hill, including the records of St. Edna's Subacute and Rehabilitation Center, and Fountain Valley Regional Hospital and Medical Center, Prairie La Vida Medical Group, Starcare/Gateway Medical Group, and PacifiCare/Secure Horizons.

The moving papers are completely devoid of any evidence that the records referred to in Plaintiffs' discovery responses are factually devoid sufficient to meet their burden. To the contrary, the medical records clearly establish XYZ Care's knowledge of Mr. Jackson's condition, knowledge that failure to address his care needs would subject him to severe injury and death, knowledge of his deteriorating condition, and complete failure by XYZ Care's staff to take any action, as required by applicable federal and state regulations standards of care, to avoid the known perils to Mr. Jackson.

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

Continue reading "Sacramento Skilled Nursing Facility Commits Egregious Elder Abuse, Part 4 of 8" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, 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 lawsuit and its proceedings.)

PLAINTIFFS' DISCOVERY RESPONSES ARE NOT FACTUALLY DEVOID AND DO NOT ESTABLISH THE LACK OF EVIDENCE OF ANY ELEMENT OF ANY CLAIM, MOREOVER, DEFENDANT XYZ CARE'S MOTION MISCHARACTERIZES PLAINTIFF'S DISCOVERY RESPONSES, FAILS TO ADDRESS PLAINTIFFS' EXERCISE OF THEIR RIGHT TO REFER TO RECORDS IN THEIR RESPONSE, AND INCLUDES NO AFFIRMATIVE EVIDENCE THAT THE FACTS SET FORTH IN PLAINTIFFS' DISCOVERY RESPONSES (AND DOCUMENTS REFERRED TO THEREIN) ARE INSUFFICIENT TO ESTABLISH ANY ELEMENT OF PLAINTIFFS' CLAIMS

Plaintiffs recognize that a defendant moving for summary adjudication may rely on "factually devoid" discovery responses to shift the burden of proof. C.C.P. §437c(p)(2). Circumstantial evidence supporting a defendant's summary judgment motion can consist of factually devoid discovery responses from which an absence of evidence can be inferred, but "the burden should not shift without stringent review of the direct, circumstantial and inferential evidence." Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 83.

The moving papers concede that Plaintiffs' discovery responses include seven pages of facts which support the claims for which defendants seek summary adjudication, including two pages which specifically pertain to XYZ Care.

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

Continue reading "Parties In Sacramento Elder Abuse Case Fight Over Documents, Part 3 of 8" »

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, Methodist, 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 lawsuit and its proceedings.)

DEFENDANT HAS THE INITIAL BURDEN OF ESTABLISHING THE NONEXISTENCE OF ANY TRIABLE ISSUE OF MATERIAL FACT

Summary adjudication is appropriate where there is no triable issue as to any material fact. The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. There is no obligation on the opposing party ... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor. Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468. As Aguilar, supra, [citation], and Saelzler v. Advanced Group 400, supra, 25 Cal.4th 763, 107 Cal.Rptr.2d 617, 23 P.3d 1143, later made clear, a defendant cannot simply argue that a plaintiff lacks sufficient evidence to establish causation; the defendant must make an affirmative showing that the plaintiff cannot do so. Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 103.

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

Continue reading " Elder Abuse At Sacramento Skilled Nursing Facility Prompts Lawsuit, Part 2 of 8" »

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, Methodist, 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 lawsuit and its proceedings.)

Plaintiff Sabrina White's Memorandum of Points and Authorities in Opposition to the Motion By Defendant XYZ Care LLC for Summary Adjudication of Issues

Plaintiffs submit the following memorandum of points and authorities in opposition to the motion by Defendant XYZ Care, LLC (hereinafter, XYZ Care ) for summary adjudication.

INTRODUCTION AND SUMMARY OF ARGUMENT

The motion by Defendant XYZ Care for summary adjudication must be denied because it is ill conceived and procedurally, legally and factually defective. The defects in the motion and moving separate statement are such as to violate clearly stated standards for motion for summary adjudication, and must lead to denial of the motion.

The motion is based solely upon plaintiffs' purported "factually devoid" responses to special interrogatories. While Plaintiffs recognize that under certain circumstances factually devoid discovery responses may establish proper grounds for summary adjudication, XYZ Care's motion fails in its initial burden to demonstrate any lack of evidence to support Plaintiffs' claims simply because the discovery responses upon which the motion relies contain references to pages of facts and evidence which purportedly support Plaintiffs' claims for which Defendant seeks summary adjudication.

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

Continue reading "Sacramento Family Sues Nursing Facility For Elder Abuse, Part 1 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.)

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" »

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, 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 personal injury case and its proceedings.)

Plaintiffs Have Failed to Produce Legitimate Evidence to Support Their Cause of Action for Wrongful Death.

Wrongful death is a statutorily created cause of action and its elements are outlined within Civil Code §377.60. A cause of action of wrongful death requires evidence of negligence, or other wrongful act, a resulting death and damages, suffered by the heirs. Quiroz v Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263. In a wrongful death action, the plaintiff must prove the defendant's conduct was a substantial factor in causing the alleged death. Bromme v Pavitt (1992) 5 Cal.App.4th 1487, 1507.

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

The evidence presented by plaintiff fails to provide any foundational basis for a reasonable jury to conclude Ms. Hill's death was a result of any act which occurred at XYZ. There has been no presentation of evidence to indicate the existence of a skin wound on Ms. Hill while she was receiving treatment at XYZ. In addition, plaintiffs have failed to produce any evidence to indicate a foundational basis that the alleged cause of death, sepsis, was in any way related to the skin wound at issue or any other infection process which began or was in any way related to care at XYZ.

Continue reading "Sacramento Woman With Hip Injury And Dementia Abused At Nursing Home, 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, 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 personal injury case and its proceedings.)

Plaintiff Has Failed to Produce Substantial Evidence of Authorization or Ratification by the Defendants' Offices, Directors or Managing Agents

Reckless neglect on the part of the defendant cannot be inferred and the plaintiff has failed to produce any evidence, let alone substantial evidence to a clear and convincing standard, of reckless neglect. Plaintiffs' failure to produce substantial evidence of reckless neglect by the defendants' employees is, alone, enough for this court to grant this motion for directed verdict as to the elder abuse cause of action. However, the Elder Abuse Act, in cases such as this, where a plaintiff is seeking enhanced remedies against an employer for elder abuse, must satisfy additional standards as set forth in Civil Code §3294(b); Welfare & Institutions Code §15657(c), 15667.5(b)(2).

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

Allegations of malice, oppression, fraud or recklessness against an employer must rest on the malice, oppression, fraud or reckless of an employee, because legal entities, such as these defendants "do not have minds capable of recklessness, wickedness, or intent to injure or deceive." Cruz v Home Base (2000) 83 Cal.App.4th 160, 167. Plaintiff must show that an officer, director or managing agent of the defendants (1) had advanced knowledge of the unfitness of the specific employee who committed the alleged neglect against Ms. Hill and employed that person with a conscious disregard of the rights and safety of others, or (2) authorized or ratified, a specific employee's wrongful conduct, or (3) was personally involved in the neglect and personally guilty of oppression, fraud or malice. CACI 3105; Welfare & Institutions Code §15657; Civil Code 3294(b); College Hospital, Inc. v Superior Court (1994) 8 Cal.4th 704, 723.

Continue reading "Elderly Sacramento Woman Dies In Skilled Nursing Facility, 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, 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 personal injury case and its proceedings.)

Plaintiffs allege that XYZ Healthcare staff is guilty of neglect under the Elder Abuse Act. Welfare & Institutions Code §15610 57 (a)(l).

Among the elements of the neglect cause of action, plaintiffs must show, through clear and convincing evidence, that one or more the defendants' employees failed to use the degree of care that a reasonable person, in the same situation, would have used, that the employees acted with malice, oppression, fraud or recklessness, that Ms. Hill was harmed by that specific conduct, and that that specific conduct was a substantial factor in causing Ms. Hill's harm. CACI 3105. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Throughout the course of plaintiffs' presentation of evidence, they have failed to present any evidence of conduct, intentional or otherwise, by an employee of the defendant that resulted in any form of skin degradation at XYZ Healthcare. Plaintiffs have gone to great pains to show that certain boxes were not checked in the chart and that certain other regulatory requirements for documentation and care planning were not completed However, they have produced absolutely no evidence to indicate Ms. Hill was injured in any way as a result of those failures . Plaintiffs' evidence, as presented in this court, does not meet the heightened burden required under the Elder Abuse Act of showing, by clear and convincing evidence, that the defendants' employees acted recklessly or are guilty of oppression, fraud or malice. Covenant Care, supra at 785; Intrieri v Superior Court (2004) 117 Cal.App.4th 72, 82.

Continue reading "Elder Abuse Lawsuit Focuses On Egregious Conduct By Sacramento Nursing Staff, 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, 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 personal injury case and its proceedings.)

Finally, "recklessness," while not defined under Civil Code §3294, is, under common law, referred to as a subjective state of culpability greater than negligence. It is the "deliberate disregard for a high degree of probability that an injury will occur" and involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions. It rises to the level of a conscious course of action with knowledge of the serious danger and likelihood of injury to the plaintiff. Delaney, supra at 31-32. Plaintiffs have presented no evidence of any subjective culpability of any staff member at XYZ Healthcare providing care and treatment to Ms. Hill.

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

The scope, purpose and standard of proof required under the Elder Abuse Act was determined by the California Supreme Court in the seminal cases of Delaney v Baker, supra and Covenant Care, Inc v Superior Court (2004) 32 Cal.4th 771, 783, wherein it was stated:

As we determined in Delaney, if the neglect (or other abuse) is reckless or done with oppression, fraud or malice, "then the action falls with the scope of [Welfare & Institutions Code] §15657 and as such cannot be considered simply based on ... professional negligence ... That only these egregious acts were intended to be sanctioned under §15657 is further underscored by the fact that the statute requires liability to be proved by a heightened clear and convincing evidence standard." Delaney, supra at 35, Covenant Care, supra at 35. Covenant Care, Inc v Superior Court, (2004) 32 Cal.4th 771, 783. (See Part 6 of 8.)

Continue reading "Family Sues Sacramento Skilled Nursing Facility For Elder Care Abuse, 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, 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 personal injury case and its proceedings.)

"Neglect" does not include acts of traditional professional negligence, but refers to forms of egregious neglect performed with some state of culpability greater than mere negligence. The subjective culpability for a neglect allegation under the Elder Abuse Act requires specific facts showing recklessness, malice, oppression or fraud by a specific caregiver Covenant Care, supra at 781-790; Delaney, supra at 33-35; Welfare & Institutions Code §15657; CACI 3105. Under Civil Code §329(c), "malice" is "conduct which is intended ... to cause injury ... or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others."

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

Malice denotes ill-will, or a desire to do harm for the mere satisfaction of doing it. Ehaugh v Rabin (1972) 22 Cal.App.3d 891, 895. "Oppression" is defined as "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights," and "fraud" is defined as "an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention ... of... causing injury." As a component element of malice and oppression, despicable conduct means conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people, Tomaselli v TransAmerica Insurance Co (1994) 25 Cal.App.4th 1269, 1287.

Continue reading "Reckless Conduct Causes Wrongful Death Of Sacramento Nursing Facility Patient, 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, 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 personal injury case and its proceedings.)

Welfare & Institutions Code §15610 63 provides: "Physical abuse" means any of the following. (a) assault, as defined in §240 of the Penal Code, (b) battery, as defined in §242 of the Penal Code, (c) assault with a deadly weapon or force likely to produce great bodily injury, as defined in §245 of the Penal Code, (d) unreasonable physical constraint, or prolonged or continual deprivation of food or water, (e) sexual assault , (f) use of a physical or chemical restraint or psychotropic medication under any of the following conditions (1) for punishment, (2) for a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the state of California, who is providing medical care to the elder or dependent adult at the time the instructions are given, (3) for any purpose not authorized by the physician and surgeon. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Welfare & Institutions Code §15610 57 provides: (a) "neglect" means either of the following (1) the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise, (2) the negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in a like position would exercise. (b) Neglect includes, but is not limited to, all of the following (1) failure to assist in personal hygiene, or in the provision of food, clothing or shelter (2) failure to provide medical care for physical and mental health needs.

Continue reading "Negligent Staff At Sacramento Nursing Home Causes Wrongful 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, 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 personal injury case and its proceedings.)

LAW AND ARGUMENT

Directed Verdict Standard cont.

In evaluating the evidence submitted by a plaintiff, the court may focus on the quality, rather than the quantity, of the evidence. A small amount of very solid evidence may be considered substantial while a great deal of extremely weak evidence may be considered insubstantial. Toyota Motor Sales USA, Inc, supra at 871-872. Inferences may constitute substantial evidence but only if they are supported by logic and reason rather than speculation or conjecture. Louis & Diederich, Inc v Cambridge European Imports, Inc (1987) 189 Cal App.3d 1574, 1584-1585. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff has Failed to Produce Substantial Evidence to Support Her Cause of Action for Elder Abuse

Plaintiff seeks damages and enhanced remedies, including attorney's fees and punitive damages, under the Elder Abuse and Dependent Adult Civil Protection Action (Welfare & Institutions Code §15600, et seq), also known as the Elder Abuse Act. The Elder Abuse Act was designed to protect elderly and dependent persons from abuse, neglect or abandonment. In addition to adopting measures designed to encourage reporting of abuse and neglect, the Act gives the court discretion to award attorney's fees to a prevailing plaintiff and allows survivors to recover pain and suffering damages in cases of intentional and reckless abuse where the elder has deceased (up to a maximum of $250,000.00). Mack v Soung (2000) 80 Cal.App.4th 966, 971-972.

Continue reading "Sacramento Woman Subject To Elder Abuse At Skilled Nursing Facility, 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, 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 personal injury case and its proceedings.)

DEFENDANT’S MOTION FOR DIRECTED VERDICT [C.C.P. §630]

INTRODUCTION AND PROCEDURAL HISTORY

At the outset of trial plaintiffs dismissed their negligence and certain other causes of action The action is currently proceeding on plaintiffs' claims for elder abuse and wrongful death. Both of these causes of action are statutory in nature. Plaintiffs have now closed their case and the presentation of plaintiffs' evidence to the jury is complete. In accordance with C.C.P. §630, the defendants now move for directed verdict as to both the elder abuse cause of action and the wrongful death cause of action on the basis that substantial evidence has not been presented which could support a verdict by the jury in favor of plaintiff on either of these remaining causes of action.

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

LAW AND ARGUMENT

Directed Verdict Legal Standard

A motion for directed verdict, like a motion for non-suit, operates as a demurrer to the evidence. Hilllard v A.H. Robins, Co (1983) 148 Cal.App.3d 374, 394; Brassinga v City of Mountain View (1998) 66 Cal.App.4th 195, 210. A directed verdict motion challenges the legal sufficiency of the opposing party's evidence and whether such evidence can make out a prima face case for the claims asserted. See, County of Kern v Sparks (2007) 149 Cal.App 4th 11, 16.

Continue reading "Sacramento Family Files Wrongful Death Action Against Nursing Facility, Part 1 of 8" »

(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" »

(Please 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.)

It is also worth noting that situations similar to those described in this elder abuse 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's Opposition to Defendant, National Hospital's Demurrer to First Cause of Action of First Amended Complaint and Motion to Strike Punitive Damages

INTRODUCTION

On defendant's demurrer of the first cause of action in the complaint for elder abuse, the Court ruled that plaintiff pled recklessness with sufficient particularity to support a claim for violation of the Elder Abuse and Dependent Adult Civil Protection Act, Welfare & Institutions Code §15657 ("Elder Abuse Act"). The Court granted plaintiff leave to amend the Elder Abuse cause of action and punitive damage allegations to plead facts to meet the standards of employer ratification and the other standards of Civil Code §3294(b).

In his First Amended Complaint, Plaintiff has pled sufficient facts to meet the standards of Civil Code §3294(b) and sufficient facts of defendant's conscious disregard of Mr. White's health, safety and rights. Defendant's demurrer to the first cause of action and motion to strike punitive damages, therefore, must be denied. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFF HAS PLED RATIFICATION WITH SUFFICIENT PARTICULARITY

As set forth at Welfare & Institutions Code § 15657(c), in order to recover the enhanced remedies under the Elder Abuse Act against a corporate employer, plaintiff must plead and prove:

Continue reading "Reckless Conduct Results In Elder Abuse At Sacramento Hospital, 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/personal injury case and its proceedings.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

As set forth below, the development of pressure ulcers in this paraplegic patient was not the result of an isolated episode of inadvertence by a Nationwide Hospital employee. Rather, this entirely preventable injury was caused by repeated episodes of neglect over a period of days by multiple employees of Nationwide Hospital.

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.

The fact that an extremely vulnerable and virtually helpless patient was permitted to develop pressure ulcers is all the more culpable because pressure ulcers are preventable without extraordinary effort on the part of an acute care hospital The development of Stage 3 or 4 pressure ulcers at an acute care hospital has been categorized by the Centers for Medicare and Medicaid Services (CMS) as a Never Even because they are reasonably preventable through application of evidence based guidelines. Centers for Medicare & Medicaid Services Program, Changes to the Hospital Inpatient Prospective Payment Systems and Fiscal Year 2008 Rates; Final Rule ; Federal Register (2007) 72(162); 47130-48175.

Continue reading "Paraplegic Sacramento Woman Suffers Elder Abuse And Reckless Neglect At Hospital, Part 6 of 6" »

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

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, U.C. Davis Medical Center, Mercy, or Sutter.

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 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 First Amended Complaint and is supported by specifically alleged facts. Those allegations together may be summarized as follows:

Katy Smith, an elder and dependent adult within the meaning of the Elder Abuse Statutes (W&I Code §15600 et seq.), was admitted to Nationwide Hospital on September 25, 2007. She was diagnosed with a cervical spine fracture. Ms. Smith had pre-existing paraplegia. For this reason and because she had a neck fracture, she was at high risk for the development of pressure ulcers.

Continue reading "Elder Abuse Of Sacramento Hospital Patient After Neck Fracture, Part 5 of 6" »

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

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, U.C. Davis Medical Center, Mercy, or Sutter.

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 court’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 of elder abuse 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.

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

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 "Elder Abuse Of Woman At Sacramento Healthcare Facility, Part 4 of 6" »

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

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, U.C. Davis Medical Center, Mercy, or Sutter.

The repeated failure of the staff to follow well-known protocols for the prevention of pressure ulcers and other conditions to which Katy 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.

Further allegations of reckless institutional neglect are set out in the complaint, wherein it is alleged that managing agents of Nationwide Hospital, 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 Ms. Smith, took no remedial action.

The complaint further sets out duties which Nationwide Hospital 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 Katy Smith from compromise to her health and safety, i.e. the development of pressure ulcers.

Continue reading "Nursing Neglect Leads To Elder Abuse Of Sacramento Woman, Part 3 of 6" »

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

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, U.C. Davis Medical Center, Mercy, or Sutter.

FACTUAL ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

The First Cause of Action details the facts which would support a verdict for reckless neglect of an elder on the part of Nationwide Hospital.

It is alleged that Katy was a patient under the care of Nationwide Hospital from September 25, 2007 through October 4, 2007, with a diagnosis of neck fracture. It is further alleged that Ms. Smith suffered from pre-existing paraplegia and, while at Nationwide Hospital, she was plainly dependent upon Nationwide Hospital for virtually all activities of daily living. The complaint goes on to allege that because of Ms. Smith's condition, Nationwide Hospital knew that she 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 Ms. Smith's bed-bound status and that there was a significant risk of serious consequences from their progression.

The First Amended Complaint with specificity alleges that the nurses at Nationwide Hospital knew or were obligated to know that Ms. Smith 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.
Rather than turning and repositioning Katy every two hours consistently throughout her admission, multiple members of the nursing staff did not turn her at such intervals and did not turn or reposition for periods of 3 hours, 4 hours, and 7 hours at various times during her stay. As a result of said repeated neglect, Katy developed pressure ulcers.

Continue reading "Reckless Neglect At Sacramento Hospital Results In Elder Abuse Action, Part 2 of 6" »

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

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, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiff Katy Smith’s Memorandum of Points and Authorities in Opposition to Defendant Nationwide Hospital and Clinics' Demurrer to Plaintiff's First Amended Complaint

INTRODUCTION

Defendant Nationwide Hospital demurrers 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 California’s Welfare & Institutions Code §15600 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.

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 "Sacramento Woman Sues Hospital For Elder Abuse, Part 1 of 6" »

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

DEFENDANTS ARE NOT PREJUDICED IF THE TRIAL COURT GRANTS PLAINTIFF'S MOTION TO AMEND ACCORDING TO PROOF AT TRIAL.

In exercising its broad discretion, the court is guided by whether the opposing party will be prejudiced by the amendment. City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.

The Defendants will not be prejudiced if the trial court were to grant Plaintiff's Motion to Amend According to Proof at Trial, as the Defendants have been placed on notice of Plaintiff's elder abuse contentions as to both Dr. Green and Dr. Black as set forth in Plaintiff's Complaint, First Amended Complaint, and Second Amended Complaint.

This case was filed on September 22, 2006, wherein the Plaintiff had asserted a cause of action against Dr. Green and Dr. Black for Elder Abuse and Willful Misconduct. Defendants' Demurrer and Motion to Strike Plaintiff's Second Amended Complaint was not heard and ruled upon until September 4, 2007. Therefore, the Defendants had one year to conduct discovery on Plaintiff's contentions for Elder Abuse and Willful Misconduct.

Further, the Defendants have been provided all of Dr. Brown's opinions regarding Dr. Green and Dr. Black, including his opinions on elder abuse relating to the two defendants.

The Plaintiffs have made their intentions clear to the Defendants immediately after the deposition of Dr. Brown that based on Dr. Brown's deposition testimony, the Plaintiffs intended to request the Trial Court to amend Plaintiff's operative complaint to include a cause of action for Elder Abuse and Willful Misconduct against Defendants Dr. Green and Dr. Black and to include a prayer for punitive damages according to proof.

Continue reading "Sacramento Elder Abuse Case Filed Against Multiple Healthcare Providers, Part 4 of 4" »

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

Based on the above conduct, in Dr. Brown's opinion, Dr. Black committed elder abuse, and testifies as follows:

Q: Okay. Other than the failure to adequatley monitor, as you've characterized it, the scrotal condition, are you critical of Dr. Black for any other aspect of his care of this patient that you believe fell below the standard of care?

A: Well, in Dr. Black's case, to be honest with you, I don't feel that he just fell below the standard of care. I know there are legal terms for elder abuse. I'm aware of what those terms are, in terms of a conscious, you know, disregard for the patient, his care and safety. And, honestly, I really think that this does fall under that category.

And I don't say that lightly; I'm a doctor myself. But the thing that troubles me is that Dr. Black, unlike Dr. Green - Dr. Black actually did look at the man's scrotum and was aware that there was a problem there, and yet he sat on that problem for several days, and then sat on it for an additional five days, even after requesting urology consultation.
So, to me, it showed a - just an extreme deviation from the standard of care that would fall into the elder abuse category, if you're going to use a legal term for it.

That's my - - what claims are being made and not made, I'll leave that to you folks. But I know there are issues of elder abuse here, and what I had told Mr. Moran was that if there was a case where elder abuse would be applicable, it would certainly be with Dr. Black's care in this case.

Continue reading "Sacramento Doctors' Malpractice And Elder Abuse Case Goes To Trial, Part 3 of 4" »

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

MOTION FOR LEAVE TO AMEND TO CONFORM TO PROOF MAY BE MADE AT ANY TIME DURING TRIAL.

A motion for leave to amend to conform to proof may be made at any time during trial, so long as a judgment has not yet been entered. Union Bank v. Wendland (1976) 54 Cal.App.3d 393, 400-401.

The statutes authorizing amendment of pleadings are construed liberally so that cases might be tried upon their merits in one trial where no prejudice to the opposing party or parties is demonstrated. Rainer v. Community Mem. Hosp. (1971) 18 Cal.App.3d 240, 254. There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding. Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945. This liberal policy applies even to amendments requested during trial. However, the matter rests in the trial court's sound discretion and is subject to appellate review only for abuse of discretion. Consilidated World Investments, Inc. v. Lido Preferred, Ltd. (1992) 9 Cal.App.4th 373, 383.

Dr. Brown testified in his deposition that Dr. Black failed to adequately monitor Mr. Hernandez during his admission at East Los Angeles Doctor's Hospital, which led to delayed definitive treatment of Mr. Hernandez's scrotal cellulitis, which ultimately became an abscess. He further testifies that Dr. Black was aware of Mr. Hernandez's scrotum, but didn't monitor it properly and waited for a very long period of time before requesting a urology consultation. Mr. Hernandez was admitted into East Los Angeles Doctor's Hospital on January 3, 2006, but Dr. Black did not request a urology consultation until January 13, 2006.

Continue reading "Sacramento Man's Elder Abuse Expert Challenged At Trial, Part 2 of 4" »

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

The Plaintiffs, John Hernandez, in and through his Successor-in-interest and heir, Robert Hernandez, and Robert Hernandez, an individual, submits the following opposition to defendants Edward Green, M.D. and Mark Black, D.O.'s Motion in Limine No. 1 precluding plaintiffs' retained standard of care expert, Peter Brown, M.D. from testifying that they committed elder abuse.

INTRODUCTION

This is a Wrongful Death and Medical Malpractice action against Defendants Edward Green, M.D. ("Dr. Green") and Mark Black, D.O. ("Dr. Black") for failure to properly assess and medically treat the Decedent's scrotal abscess.

On September 4, 2007, the Court granted Defendants Demurrer as to the Plaintiff's Elder Abuse and Willful Misconduct causes of action against Dr. Green and Dr. Black.

Subsequent to the Court's ruling on Defendant's Demurrer, on March 14, 2008, Plaintiffs medical expert, Peter Brown, M.D., testified in his deposition that at least as to Dr. Black, based on Dr. Black's conduct as to the care and treatment of the decedent, John Hernandez
("Mr. Hernandez"), in his medical opinion, Dr. Black not only fell below the standard of care, but had committed elder abuse.

Based on Dr. Brown's opinion, Plaintiff's counsel sent a letter to defense counsel for Defendants, Dr. Green and Dr. Black, informing him of their intent to make a motion to amend at trial according to proof. Please see the correspondence sent to defense counsel, Patrick Mayer, dated March 24, 2008.

Continue reading "Sacramento Elder Abuse Victim Sues Doctors, Part 1 of 4" »

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

THE PLAINTIFFS HAVE SET FORTH A PRIMA FACIE CASE FOR SURVIVORSHIP AGAINST THE DEFENDANT, PAUL SMITH, M.D.

Although the moving party was correct in stating the law that under California Code of Civil Procedure § 377.34, the damages recoverable by the successor in interest of the decedent are limited to the loss or damages that the decedent sustained or incurred before death, and does not allow for the recovery of the decedent's pain and suffering, Welfare & Institutions Code § 15657(b) does allow for the recovery of postmortem pain and suffering of the decedent where it is proven by clear and convincing evidence that a defendant is liable for elder abuse.

Welfare & Institutions Code § 15657 states in pertinent part:

Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term costs includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.

(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.

Continue reading "Wrongful Death Suit Filed Against Sacramento Hospital, Part 7 of 7" »

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

PLAINTIFFS CONCEDE THAT PLAINTIFF'S SECOND CAUSE OF ACTION FOR NEGLIGENCE IS DUPLICATIVE OF PLAINTIFF'S EIGHTH CAUSE OF ACTION FOR PROFESSIONAL NEGLIGENCE AS AGAINST THE DEFENDANT, PAUL SMITH, M.D.

The Plaintiffs agree with the moving party's argument that the Plaintiff's second cause of action for Negligence is duplicative of the Plaintiff's eighth cause of action for Professional Negligence as to the Defendant, Dr. Smith.

The Plaintiff concedes that a Demurrer as to the Plaintiff's second cause of action for Negligence would be appropriate.

PLAINTIFFS SEEK LEAVE TO AMEND THEIR COMPLAINT TO ALLEGE THE PROPER REGULATIONS APPLICABLE TO THE DEFENDANT, PAUL SMITH, M.D., IN SUPPORT OF THE PLAINTIFF'S NEGLIGENCE PER SE CAUSE OF ACTION AGAINST THAT DEFENDANT

The Plaintiffs agree with the moving party that the statutes and regulations set forth in the Plaintiffs' Complaint are applicable to health care facilities and not individual physicians, and that the Plaintiffs have failed to include the applicable statutes and regulations as to the Defendant, Dr. Smith.

Should the Court require that the Plaintiffs include these specific statutes and regulations at this time in the pleading stage, the Plaintiffs respectfully request that the Court allow the Plaintiffs to take leave to amend the Complaint to assert the proper statutes and regulations applicable to the Defendant, Dr. Smith.

Continue reading "Sacramento Man Dies At Local Nursing Care Facility, Part 6 of 7" »

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

Throughout the decedent's admission at Doctor’s Medical Center, the decedent's allergic reaction to the Primaxin did not subside and the decedent continued to develop rashes over his body. Despite the decedent's severe reaction to the Primaxin, on January 14, 2006, the Defendant, Dr. Smith, increased the decedent's dosage of Primaxin to be administered every 8 hours instead of every 12 hours.

The decedent remained on Primaxin throughout his entire admission at Doctor’s Medical Center until his discharge on January 31, 2006, and continued through his admission at Universal Nursing Center from January 31, 2006 to February 6, 2006.

As a result of being on Primaxin for 30 days, the decedent's body was consumed by Stevens-Johnson Syndrome, an inflammatory disorder of the skin which is triggered by the allergic reaction to Primaxin. By the time the decedent was transferred back to Doctor’s Medical Center on February 6, 2006, the decedent had already developed sloughing of the skin on his hands, forearms, and blisters all over his body and face.

These series of affirmative acts and omissions on the part of the Defendant, Dr. Smith, in failing to treat the decedent's allergic reaction, and continuing the decedent on a course of antibiotics knowing that the decedent was highly sensitive to antibiotics and was acting severely to the Primaxin constitutes not only gross negligence, but rises to the level of reckless conduct, given Dr. Smith's acute knowledge of the decedent's condition, further subjecting him to the heightened remedies of EADACPA.

Continue reading "Sacramento Man's Family Sues Nursing Home For Elder Abuse, Part 5 of 7" »

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

Pursuant to Intrieri v. Superior Court, an Elder Abuse Cause of Action Cannot be Disposed of in the Pleading Phase Where There is a Mere Inference of Reckless Conduct.

In Intrieri v. Superior Court of Santa Clara County (2004) 117 Cal.App.4th 72, the Court held that the mere inference that the defendant had consciously disregarded a resident's safety raised a triable issue of fact concerning the reckless neglect element of an elder abuse claim.

In Intrieri, supra, a skilled nursing facility had on numerous occasions failed to take any action to address a resident's pressure sores. It made no changes to the resident's care plan even after complaints by the resident's son, and further failed to follow a new care plan developed by an outside physician hired by the resident's son. The infection of the pressure sores that resulted eventually led to amputation of the resident's right toe, and thereafter her right leg below the knee. The Court held that it may be reasonably inferred from this chain of events that the defendant acted with reckless neglect in caring for the resident, and overturned a grant of summary judgment on the elder abuse cause of action.

Although Intrieri, supra, is a holding that governs the court's review on summary judgment motions, it is argued that summary judgment motions are held to a higher standard of review. If the plaintiff in opposing a motion for summary judgment need only show a mere inference even after discovery has been conducted, then the Plaintiffs in opposing a Demurrer should not be held to a higher standard and be required to make its case in the Complaint. The Plaintiffs need only plead sufficient facts to put the Defendants on notice of an elder abuse cause of action against them, and be allowed to proceed through discovery to make its case.

Continue reading "Elder Abuse At Hospital Facility In Sacramento, Part 4 of 7" »

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

THE FACTS IN A COMPLAINT MUST BE ACCEPTED AS TRUE FOR PURPOSES OF RULING ON A DEMURRER

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 5 Cal.3d 584, 591. For the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts property pleaded. Serrano v. Priest (1971) 5 Cal.3d 584, 591. No matter how unlikely or improbable, the plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.

THE PLAINTIFF HAS STATED FACTS SUFFICIENT TO PLEAD A CAUSE FOR ELDER ABUSE AGAINST DEFENDANT PAUL SMITH, M.D.

As the moving party succinctly points out in its Demurrer, a plaintiff must plead and prove by clear and convincing evidence reckless conduct in order to establish a claim for elder abuse and that the acts were ratified by an officer, director, or managing agent of a corporate defendant. As set forth herein, Plaintiffs have pled sufficient facts to present a prima facie case for elder abuse; however, Defendant is mistaken if it believes that Plaintiffs must also at this pleading stage prove the Elder Abuse claim against it. That is what discovery and trial are for. As to whether or not a jury will actually agree that the Defendant, Dr. Smith is guilty of Elder Abuse is not for this Court to determine at this time. (See Part 4 of 7.)

Continue reading "Sacramento Physicians Responsible For Elder Abuse Death, Part 3 of 7" »

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

THE FACTS AS PLEADED

The Plaintiffs' complaint specifically alleges the following facts, which for purposes of a demurrer must be taken as true:

a. The Plaintiff and decedent, John Hernandez (hereinafter "John"), was born on XX/XX/1921.

b. It is alleged that upon admission to Defendant Healthcare’s facility, Doctor’s Medical Center, Defendant Doctor’s Medical Center, Dr. Green, Dr. Smith, and DOES 21-40 neglected, abandoned, and abused his care, failed to protect him from health hazards, failed to provide care for his physical and mental health needs, failed to exercise the degree of care that a reasonable person in a like position would exercise, failed to react promptly to emergent situations, all such acts constituting reckless "neglect" as defined in Welfare and Institutions Code § 15610.57, and delineated in Delaney v. Baker (1999) 20 Cal.4th 23, 31-32, 35, such that John suffered: gangrene to his testicles, unnecessary pain and suffering, and development of rashes all over his body due to an allergic reaction to Primaxin. These injuries were preventable had the Defendant, Healthcare’s and DOES 1-10, provided enough sufficiently trained staff at Doctor’s Medical Center to provide John with the amount of care that state and federal regulations required.

c. It is further alleged that during John's admission at Doctor’s Medical Center, Defendants Doctor’s Medical Center, DOES 21-40, and Paul Smith, M.D. failed to meet the standard of care and otherwise failed to exercise that degree of care that a reasonable person in like position would exercise with respect to caring for the decedent, John. Specifically, during John's admission at Doctor’s Medical Center from January 3, 2006 to January 30, 2006, a urine culture revealed that the decedent had developed E. coli and Proteus mirabilis from Universal.

Dr. Smith, an infectious disease doctor was consulted in to manage John's E. coli infection. In order to control John's infection, Dr. Smith prescribed Primaxin, an antibiotic, on January 5, 2006. On January 6, 2006, when the Plaintiff, Robert, visited his father at Doctor’s Medical Center, he noticed that his father had developed rashes on his body and notified the nurse.

Continue reading "Sacramento Man Dies Of Elder Abuse, Part 2 of 7" »

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

The Plaintiffs, John Hernandez, in and through his Successor-in-interest and Heir, Robert Hernandez, and Robert Hernandez, an individual, oppose the Demurrer of Defendant Paul Smith, M.D. ("Dr. Smith") and Motion to Strike as follows:

INTRODUCTION

This is a Negligence case, and an Elder Abuse case brought under the provisions of Welfare & Institutions Code § 15600, et. seq. The Plaintiffs' Complaint further alleges the following causes of action against the Defendant Dr. Smith: Negligence Per Se, Willful Misconduct, Survivorship, and Wrongful Death. The causes of action for Elder Abuse, Negligence, Negligence Per Se, Willful Misconduct, and Survivorship are causes of action that belongs to the decedent, John Hernandez, and is brought in and through his Successor-in-interest and son, Robert Hernandez.

The facts alleged in the Complaint, which for purposes of this demurrer must be taken as true, assert that the Defendant, Dr. Smith, failed to properly assess and medically treat the decedent's severe allergic reaction to an antibiotic that was prescribed by Dr. Smith.

As a result of the allergic reaction to the antibiotics, the decedent developed Stevens-Johnson disease which caused his body to develop water blisters and first degree burns all over his body.

Continue reading "Sacramento Nursing Home Resident Dies Of Elder Abuse, Part 1 of 7" »