Kaiser Medical Malpractice Lawyer Blog

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 medical malpractice case and its proceedings.)

The First and Second Causes of Action, are Uncertain, as they Fail to Allege Any Specific Wrogndoing by Defendant Dr. Wong.

Under California Code of Civil Procedure, section 430.10(f), a party may demurrer to a pleading on the ground of uncertainty. A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. The Rutter Group, California Practice Guide: Civil Procedure Before Trial, Chapter 7 (I)-A, 7:85.

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

Plaintiffs fail to allege any inappropriate, nevertheless reckless, conduct on behalf of Defendant Dr. Edward Wong. Plaintiffs make many general allegations and contentions attributable to all defendants as a whole, including health centers, nurses, doctors and hospital staff; however, Plaintiffs fail to distinguish between the alleged roles the individual defendants played in the alleged reckless neglect of decedent. There is not a single allegation specifically directed toward any act or omission by Dr. Wong in the entire 13 page complaint. In fact, a significant portion of the first cause of action, wherein he is specifically named, is directed toward alleged violations of Division 5, Title 22 of the California Code of Regulations, entitled: Licensing and Certification of Health Facilities, Home Health Agencies, Clinics and Referral Agencies.

Continue reading " Sacramento Hospital's Reckless Neglect Of Patient Leads To Elder Abuse Lawsuit, 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 medical malpractice case and its proceedings.)

Plaintiffs further attempt to allege "recklessness" by stating that Defendants knew or should have known that decedent was at risk for falls, pressure ulcers, bowel abnormalities, malnutrition and dehydration.

Knowing these things, defendants nevertheless failed to provide proper assessment and care ... Defendants neglected [decedent] and did not provide necessary services, care, and equipment as required by law in the care and protection of their patient ... In particular, and without limiting the generality of the foregoing, Defendants and each of them, failed to provide him with necessary medical care and custodial services, failed to protect him from health and safety hazards including mechanical falls.

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

Despite this attempt at alleging reckless neglect, Plaintiffs' Complaint falls short, as it fails to allege specific facts to substantiate their claims.

Finally, in the second cause of action, Plaintiffs allege that Defendants knew on March 27, 2008, when decedent was discharged home, the combined efforts of Debra White and episodic visits by visiting nurses could not provide the level of care [decedent] required for his various medical conditions. Once again, Plaintiffs fail to allege specific facts to support the allegation that Defendants had the requisite knowledge.

Continue reading " Sacramento Hospital's Neglect Of Elderly Patient Leads To His 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 medical malpractice case and its proceedings.)

Plaintiffs' Fail to Sufficiently Allege Claims of Reckless Neglect of an Elder

For purposes of the Elder Abuse Act, "recklessness" refers to a subjective state of culpability greater than simple negligence, which has been described as a "deliberate disregard" of the high degree of probability "that an injury will occur." Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature. Sababin v. Superior Court (App. 2 Dist. 2006) 50 Cal.Rptr.3d 266, 271. Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions, but rather rises to the level of a "conscious choice of a course or action ... with knowledge of the serious danger to others involved in it." Mack v. Soung (App. 3 Dist. 2000) 95 Cal.Rptr.2d 830, 834.

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

In the case at hand, without any facts to support conduct beyond alleged mere professional negligence, Plaintiffs boldly allege: Defendants' acts and omissions as alleged above constitute neglect, as defined in Welfare and Institutions Code § 15610.57, and were done with malice, oppression, fraud and/or recklessness within the meaning of Welfare and Institutions Code § 15657. While, at first glance, this may appear sufficient to state a claim for reckless neglect of an elder, warranting punitive damages under the Elder Abuse Act, the acts and omissions as alleged above fail to provide any specific facts to sufficiently allege that reckless neglect did in fact occur.

Continue reading " Wife Of Deceased Sacramento Hospital Patient Sues Doctor for Negligence, 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 medical negligence case and its proceedings.)

In Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783, the California Supreme Court made clear the distinction between "neglect" as defined above and "professional negligence."

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

"Neglect," within the meaning of the Welfare and Institutions Code section 15610.57, covers an area of misconduct distinct from professional negligence. As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of "neglect" speaks not of the undertaking of medical services, but of the failure to provide medical care:

"[I]f the neglect is reckless' or done with oppression, fraud or malice, then the action falls within the scope of section 15657 and as such cannot be considered simply based on ... "professional negligence" within the meaning of section 15657.2. Delaney v. Baker (1999) 20 Cal.4th at 35. As discussed in the concurrent Motion to Strike, to set forth a viable cause of action for reckless neglect of an elder, Plaintiffs must "allege" conduct essentially equivalent to conduct that would support recovery of punitive damages.

Continue reading " Doctor's Negligence And Malpractice Leads To Sacramento Man's Wrongful Death, 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.

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(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 medical negligence case and its proceedings.)

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

According to the Welfare and Institutions Code, Section 15610.07:
"Abuse of an elder or dependent adult means either of the following: (a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering."

An elder is defined by § 15610.27, as "any person residing in this state, 65 years of age or older."

Neglect is defined by § 15610.57, in pertinent part as: (a)(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.

Continue reading " Wrongful Death Of Elder At Sacramento Hospital, 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 medical malpractice case and its proceedings.)

Plaintiffs Fail to Allege a Cause of Action that Reaches Beyond Professional Negligence to the Level of Reckless Neglect of an Elder, and Thus, are Not Entitled to the Heightened Remedies Under the Elder Abuse Act.

Difference Between Allegations of Professional Medical Negligence and Elder Abuse

In Delaney v. Baker (1999) 20 Cal.4th 23, the Supreme Court of California set forth the difference between elder abuse claims and professional negligence claims. The legislative history of the Elder Abuse Act, as discussed in Delaney, indicates that it was intended to apply to acts of egregious abuse, while leaving acts of professional negligence not involving such egregious abuse to be dealt with under other law. Smith v. Ben Bennett, Inc. (App. 4 Dist. 2005) 35 Cal.Rptr.3d 612, 620.

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

One main difference between these two areas of law is the remedies to which a plaintiff is entitled. The area of alleged elder abuse, governed by Welfare and Institutions Code, sections 15600 et. seq., has very specific prerequisites which must be met before a plaintiff may be entitled to recover the heightened remedies available under the Elder Abuse Act.

Continue reading " Sacramento Family Sues Doctor For Malpractice And Neglect, 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 medical malpractice case and its proceedings.)

LEGAL AUTHORITY cont.

A demurrer tests the sufficiency of the pleadings as a matter of law, and raises issues of law regarding the form or content of the opposing party's pleading. (See Cal. Code Civ. Pro. § 589; James v. Superior Court of San Francisco (1968) 261Cal.App.2d 415, 416-417) The demurrer presents an issue at law as to the sufficiency of the alleged facts set out in the pleading. It follows that whether a complaint states sufficient facts to avoid a facial defect is a question of law which may be resolved upon demurrer. (See Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 300.)

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

ARGUMENT

The First and Second Causes of Action Do Not State Facts Sufficient to Support a Cause of Action Against Defendant Dr. Wong for Reckless Neglect of an Elder.

Plaintiffs Allege Many Legal Conclusions, But Fail to Support Those Conclusions with Specific Factual Allegations.

For purposes of testing the sufficiency of a cause of action, the court treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. (See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

Continue reading " Elder Abuse At Sacramento Hospital By Physician, 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 also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and medical malpractice case and its proceedings.)

Defendant Edward Wong, M.D.'s Memorandum of Points and Authorities in Support of Demurrer to Plaintiffs' Complaint

Defendant Edward Wong, M.D. (hereinafter "Dr. Wong") submits the following memorandum of points and authorities in support of his Demurrer to Plaintiffs Debra and Harry White's Complaint.

INTRODUCTION

This case arises out of the alleged wrongful death of decedent Paul White, due to alleged elder abuse by Defendants. Plaintiffs allege in their Complaint the following causes of action: reckless neglect of an elder/elder abuse, intentional infliction of emotional distress, negligent infliction of emotional distress and wrongful death. This demurrer, on behalf of Defendant Dr. Wong, challenges the sufficiency of the first and second causes of action for reckless neglect of an elder on the grounds that the Complaint fails to state facts sufficient to constitute an action for reckless neglect of an elder/elder abuse and is uncertain as to this defendant.

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

LEGAL AUTHORITY

The California Code of Civil Procedure, Section 430.30 authorizes the filing of a demurrer in response to a complaint as follows: (a) When any ground for objection to a complaint ...

Continue reading " Sacramento Doctor Fights Reckless Elder Abuse Lawsuit, Part 1 of 8 " »