Kaiser has a very clear national policy regarding Corrective/Disciplinary Action because it is obligated to have one.

Kaiser Permanente (KP) must comply with specific legal/regulatory standards that include, but are not limited to, those indicated by Medicare and other government program billing requirements, Guidance issued by the Centers for Medicare and Medicaid Services, the Department of Health and Human Services, the Compliance Program Guidance issued by the Office of the Inspector General, and HIPAA/Privacy and Security regulations .... KP is required to have well publicized disciplinary guidelines that demonstrate its commitment to compliance and set forth the consequences for violations of compliance mandates.

In other words, state and federal laws and regulations require that Kaiser follow its own Corrective/Disciplinary Action policy. The last paragraph of that policy states: Employees who report compliance and/or ethics concerns in good faith will not be subject to corrective/disciplinary action for doing so... Nevertheless, even assuming the truth of Kaiser's purported reason for terminating Ms. Church, Ms. Church was terminated in violation of Kaiser's legally mandated policy because she was terminated for printing out an improperly viewable document to show to Mr. Oliver.

In fact, both the reasons given for Ms. Church's ultimate termination and the underlying reasons for the draft disciplinary letter which she printed from Mr. White's screen were pretext for retaliatory action and restraint of Ms. Church's efforts to hold the managers in charge of Environmental, Health and Safety accountable for the numerous lapses in employee and patient safety which they have countenanced while she has worked for Kaiser (first as a consultant, then as an employee). Kaiser managers expressed concerns about Ms. Church's communication style when she would communicate that a) there were serious defects in Kaiser's workplace safety program and b) those managers were partly or fully responsible for those serious defects.

A House Democrat expressed concern Wednesday about a massive Toyota recall that has led the automaker to stop manufacturing and selling vehicles linked to problems with gas pedals, signaling that Congress could soon review the massive recall.

Michigan Rep. Bart Stupak, who leads an investigative subcommittee, said his staff would meet with Toyota officials on Wednesday following the automaker's decision to suspend U.S. sales of eight of its vehicle models, including the Camry, the best-selling car in the United States. The company is also halting production at assembly lines at six North American car plants, beginning the week of Feb. 1.

"We want to find out what Toyota knows about the sudden acceleration problem with several of their vehicles and we want to know what will be done to protect consumers who are currently driving those vehicles," Stupak said in a statement.

Stupak is a senior member on the House Energy and Commerce Committee, which held high-profile hearings and pushed for new auto safety requirements following the massive recall of Firestone tires in 2000. Congress approved legislation requiring automakers and other manufacturers to provide data on deaths, injuries, consumer complaints, property damage and warranty claims.

Toyota issued a recall last week for the same eight models involving 2.3 million vehicles. It followed a separate recall of 4.2 million vehicles last year because of problems with gas pedals becoming trapped under floor mats, causing sudden acceleration. That problem was the cause of several crashes, including some fatalities. About 1.7 million vehicles fall under both recalls.

Unfortunately for Kaiser's defense, there is no policy against, or harm caused by, printing a draft work-related memorandum from her supervisor's screen:

1) Kaiser's Principles of Responsibility contain no language that would preclude Ms. Church from printing a letter about her that was publicly visible in an open cubicle and bringing that letter to Kaiser's Chief Operating Officer.

2) Ms. Church's act of printing the letter about her could not, in any way, violate Richard White's right to privacy. Mr. White has no cognizable right to privacy with regard to a work related correspondence about someone else. In fact, Kaiser's own Principles of Responsibility and Electronic Assets Usage policy make it clear that employee privacy does not extend to conduct in the work place or to the use of Kaiser Permanente's assets.

3) There is nothing in Kaiser's Electronic Usage Policy that precluded Ms. Church from printing a visible document about her and taking it to the Chief Operating Officer of the hospital.

The violations of Kaiser's Electronic Usage Policy were by Richard White:
a. He failed to prevent access to his computer.

b. He failed to "avoid leaving...business information open/accessible by employing password-activated screen savers."

And, yet, Mr. White received no discipline whatsoever. Interestingly, Kaiser's Electronic Assets Usage policy also states Users who identify security issues should report them immediately. In Ms. Church's case, that line should be followed by: "...and subsequently be terminated." (See Part 4 of 11.)

WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AND VIOLATION OF LABOR CODE SECTION 6310 (AND HEALTH AND SAFETY CODE SECTION 1278.5)

Kaiser has filed a Motion for Summary Judgment on all claims, including the major claim for Wrongful Termination in Violation of Public Policy. For settlement purposes, it is important to recognize that Kaiser cannot win summary judgment or summary adjudication on this claim because of the existence of disputed issues of material fact, as well as Kaiser's incorrect interpretation of the law.

The pretextual reason given for Ms. Church's termination was her printing of a memorandum, addressed to her and publicly viewable on her supervisor's computer screen, regarding discipline which her supervisor, Richard White, apparently intended to impose in retaliation for her frequent complaints about the incompetence of Kaiser management and Kaiser's many continuing safety and OSHA violations. At Ms. Church's termination "hearing," Mr. White also falsely claimed that Ms. Church had accessed his Lotus Notes account and printed other documents from his work computer.

Ms. Church's termination letter referred to the following reasons for her termination: Violation of the Principle of Responsibilities, breach of confidentiality, invasion of privacy and violation of KP computer assets. These should have been the reasons for Mr. White's termination. Ms. Church printed the draft disciplinary memorandum and brought it to COO Stan Brown because of her concern that Richard White had left it visible on his screen in an open cubicle for everyone to see, thereby violating her privacy rights as an employee.

Plaintiff's Mandatory Settlement Conference Statement

Plaintiff Miranda Church, a Workplace Safety Specialist employed at Kaiser Foundation Hospital, was wrongfully terminated on January 10, 2006, in violation of public policy and Kaiser's own employment policies. Prior to her termination, Ms. Church was treated in an abusive and discriminatory manner by her quasi-manager, David Black, and was underpaid compared to her male counterpart at another hospital within Kaiser's Sacramento group. At the time of her termination, Kaiser failed to return personal property to her and, despite further requests, continued to keep her personal property. To compound its injuries to Ms. Church, her former supervisor has made false statements which wrongfully prevented Ms. Church from obtaining subsequent employment.

It is plaintiff's position that, for statutory and regulatory reasons, Kaiser is obligated to follow its policies in terminating individuals who have otherwise made complaints about Kaiser's misfeasance, malfeasance, and nonfeasance. In Ms. Church's case, Kaiser failed to properly follow its own policies...miserably. Not only did Kaiser terminate the wrong person involved in the incident described below, but, in terminating Ms. Church, Kaiser failed to:

1) Provide any rule, guideline or policy which would indicate that the act was an offense subject to discipline or termination.

2) Provide any oral warning prior to termination.

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.

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.

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.

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.

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.

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.

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.

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.

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.)

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.