Kaiser Medical Malpractice Lawyer Blog

The following blog is provided as an example of a Kaiser medical malpractice lawsuit to aid potential clients in how a lawsuit is examined and conduced. 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 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.)

CASE INFORMATION
FACTS/CONTENTIONS
According to Plaintiff: Decedent Van Ferry, age 59, a facilities manager and husband to Danielle Ferry, a 58-year-old homemaker, father to Kathy Ferry, age 30, Alex Ferry, age 29, Vanessa Ferry, age 27, and Marry Ferry, age 26, and grandfather to Natalia Ferry, age 9, was diagnosed with Graves disease in 1991. He underwent radiation iodine treatment, killing much of his thyroid gland. As a consequence, decedent became hypothyroid (insufficient production of thyroid hormone) and was started on synthetic thyroid replacement therapy. After several years of taking oral thyroid tablets and having lost health insurance, decedent stopped filling the prescriptions for the Synthroid.

In April 2009, after becoming a new member of defendant Kaiser Permanente Medical Group, decedent was seen by a new primary care physician who referred him to endocrinologist Dr. Valerie Names with Kaiser. Dr. Names examined decedent, obtained a medical history, and prescribed 200 mcg of Levothroid to be taken on a daily basis, with a return office visit scheduled for 33 days later on May 18, 2009. Decedent returned to Dr. Names on May 18, 2009, at which time he informed her that during the previous week he had been suffering “worsening chest pain and pressure.” He had lost 11 lbs, his heart rate was elevated from 72 to 97, his cholesterol was measured at 302, and he smoked a pack of cigarettes per day. Dr. Names ordered blood tests, which were returned the following day, May 19, 2009, after which she contacted decedent and reduced his prescription from 200 mcg per day to 137 mcg per day. During the very early hours of the following morning, decedent died of a massive heart attack.

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

Continue reading "Man Has A Fatal Heart Attack Following Over-Dosage of Medication in Kaiser Medical Malpractice Suit" »

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" »

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

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

THE HEALTH AND SAFETY CODE § 1430 CLAIM MUST BE STRICKEN AS TO XYZ HOSPITAL

Health and Safety Code § 1430 applies to skilled nursing facilities and reads in part:

(a) Except where the state department has taken action and the violations have been corrected to its satisfaction, a licensee who commits a class "A" or "B" violation may be enjoined from permitting the violation to continue or may be sued for civil damages within a court of competent jurisdiction. ...

(b) A current or former resident or patient of a skilled nursing facility, as defined in subdivision

(c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations. ...

Thus Health and Safety Code § 1430 permits actions against the licensee of a skilled nursing facility, not acute care Hospitals. The claim under this statute must therefore be stricken as to XYZ Hospital. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Elder Abuse And Medical Malpractice At Sacramento Hospital, Part 9 of 9" »

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

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

Similarly, the court in Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, noted:
The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. (See Taylor v. Superior Court, supra, 24 Cal.3d 890, 894, citing Prosser, Law of Torts (4th ed. 1971) § 2, at pp. 9-10.) Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [122 Cal.Rptr. 218].)Id. at 166. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Moreover, courts have also recognized that the requirements of Civil Code § 3294 (b) must also be pled factually to properly state a punitive damage claim against an employer/corporation:
" ... we fail to see how any of those allegations sets forth facts to show Hospital's advance knowledge, authorization or ratification. Also, absent from the complaint is any assertion an officer, director or managing agent of Hospital was personally responsible for any of the acts allegedly performed by Hospital." Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167-168.

Continue reading "Doctor's Malpractice Results In Sacramento Man's Wrongful Death, Part 8 of 9" »

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

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

THE PUNITIVE DAMAGES SHOULD BE STRICKEN

Since plaintiff has failed to properly plead a dependent adult claim, he must comply with the requirements of C.C.P. §425.13 before alleging a punitive damage claim against a health care provider, and the punitive damages must be stricken until leave of court has been obtained. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

But even if plaintiff did not have to comply with § 425.13, the complaint fails to plead facts sufficient to support a punitive damage claim against the Hospital. To recover punitive damages plaintiff must prove an intent to injure or despicable conduct carried out with a willful and conscious disregard of a plaintiff's safety. Civil Code § 3294. In College Hospital v. Superior Court (1994) 8 Cal. 4th 704, 705, the court characterized the addition of the despicable conduct requirement as a new substantive limitation on the award of punitive damages. Despicable conduct is specifically defined in BAJI 14.72.1 as follows:
"...conduct which is so [vile] [base] [contemptible] [miserable] [wretched] or [loathsome] that it would be looked down upon and despised by ordinary, decent people."

See also Mock v. Michigan Mutual Ins. Co (1992) 4 Cal.App.4th 306, 331. The court in Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 recognized that despicable conduct must be pled, and it characterized despicable as a "powerful" term. No such conduct has been alleged here.

Continue reading "Sacramento Family Seeks Punitive Damages For Hospital's Malpractice, Part 7 of 9" »

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

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

THE SECOND CAUSE OF ACTION FOR MEDICAL MALPRACTICE IS UNCERTAIN

The second cause of action is pled collectively against both of the entity defendants and do not contain any specific charging allegations against XYZ Hospital. The only relativity specific allegation in the second cause of action pertains to standards of care applicable to skilled nursing facilities. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Moreover, the second cause of action is entitled medical malpractice, but it contains references to reckless conduct and allegedly improper billing practices, neither of which would constitute medical malpractice as that term is generally understood. It is therefore uncertain as to the theories of liability plaintiff intends to assert in this cause of action.

The second cause of action also references federal regulatory requirements which were allegedly not maintained, but it fails to say what federal regulations were allegedly not followed.

Continue reading "Sacramento Hospital Vicariously Liable For Medical Malpractice By Staff, Part 6 of 9" »

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

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

PLAINTIFF HAS ALSO FAILED TO PLEAD WRONGFUL CONDUCT ON THE PART OF AN OFFICER, DIRECTOR OR MANAGING AGENT OF THE HOSPITAL WITH THE REQUIRED PARTICULARITY

There is no vicarious liability under the elder abuse statutes. Welfare and Institutions Code § 15657 provides in part:
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer. Civil Code §3294 and thus Welfare and Institutions Code § 15657 require reckless or otherwise wrongful conduct on the part of an officer, director, or managing agent of the corporate/employer defendant. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Civil Code §3294 (b) reads as follows:
An employer shall not be liable for damages...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 and 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

Continue reading "Egregious Medical Conduct Results In Malpractice At Sacramento Nursing Facility, Part 5 of 9" »

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

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

DEPENDENT ADULT CLAIMS MUST BE PLED WITH PARTICULARITY

Even under general pleading requirements, pleadings must allege facts not just conclusions, and mere contentions, deductions and conclusions of law or fact need not be accepted as true. Ankeny v. Lockheed Missiles & Space Co (1979) 88 Cal.App.3d 531, 537; Serrano v. Priest (1971) 5 Cal.3d 584, 591. Moreover, a complaint, to be sufficient, must contain a statement of facts which, without the aid of other conjectured facts not stated shows a complete cause of action. Hawkins v. Oakland Title Ins. Guaranty Co. (1958) 165 Cal.App.2d 116, 122. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In addition, claims under Welfare and Institutions Code § 15657 are statutory causes of action, and they must be pled with particularity. In Covenant Care v. Superior Court 32 Cal.4th 771, 790, the Supreme Court states that the general rule requiring statutory causes of action to be pled with particularity applies to claims under the dependent adult statutes. The court cites to Lopez v. South California Rapid Transit District (1985) 40 Cal.3d 780, 795. In Lopez, the court stated the rule and concluded that to state a cause of action ... every fact material to the existence of its statutory liability must be pleaded with particularity. Id. [Emphasis added.] Lopez in turn cites to Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5 which explains in part:

Because recovery is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate.

Continue reading "Sacramento Man Underfed And Subsequently Dies At Hospital Due To Malpractice, Part 4 of 9" »

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

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

The civil remedies set forth in Welfare and Institutions Code §15657 read as follows:
Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, 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, in addition to all other remedies otherwise provided by law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Delaney v. Baker (1999) 20 Cal.4th 23, 31, the court defined the reckless state of mind necessary to establish a cause of action under the elder abuse statutes:

"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 (BAJI No. 12.77 [defining recklessness in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) 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 of action ... with knowledge of the serious danger to others involved in it." (Rest.2d Torts, § 500, com. (g), p. 590.) n. 5

Continue reading "Reckless Care At Sacramento Skilled Nursing Facility Constitutes Malpractice, Part 3 of 9" »

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

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

APPLICABLE LAW

C.C.P. § 430.10 sets forth the grounds for demurrer:
The party against whom a complaint ... has been filed may object, by demurrer ... to the pleading on any one or more of the following grounds...
(d) There is a defect or misjoinder of parties.
(e) The pleading does not state facts sufficient to constitute a cause of action.
(f) The Pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

C.C.P. §§ 435-436 permits the court to strike improper matters contained in the complaint. Section 435 and reads in part as follows:
(b)(1) Any party within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof...

Section 436 provides in part:
The court may, upon a motion made pursuant to Section 435...
(a) Strike out any irrelevant, false or improper matter inserted in any pleading.
(b) Strike out all or any part of any pleading not drawn ...in conformity with the laws of this state, a court, or an order of the court.

Continue reading "Elder Abuse Results In Death At Sacramento Hospital, Part 2 of 9" »

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

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

DEFENDANT XYZ HOSPITAL'S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTFFS' COMPLAINT FOR DAMAGES

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF XYZ HOSPITAL'S DEMURRER AND MOTION TO STRIKE

INTRODUCTION

Plaintiff's complaint arises out of the care and treatment provided to Donald Lee at XYZ Hospital and at a skilled nursing facility, Universal Hospital. The complaint alleges causes of action for medical malpractice, wrongful death and a cause of action under the dependent adult statutes. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dependent adult claims must be pled with particularity. Plaintiff has failed to properly plead facts sufficient to show reckless and egregious abuse on the part of an employee of XYZ Hospital, or facts to show wrongful conduct on the part of any officer, director or managing agent of the Hospital which must also be alleged to state a claim against the Hospital under Welfare and Institutions Code § 15657 and under Civil Code § 3294. The Hospital therefore demurs to the dependent adult claim and moves to strike the § 3294 punitive damage claim.

Continue reading "Sacramento Hospital Patient Suffers Wrongful Death, Part 1 of 9" »