(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:
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.
The Plaintiffs have at the very least set forth a prima facie case for reckless conduct and/or conscious disregard against the Defendant, Dr. Smith, which takes this action beyond the realm of simple negligence/medical malpractice, and within the scope and remedies of the Elder Adult and Dependant Adult Civil Protection Action (hereinafter “EADACPA” ).
While it obviously remains to be seen whether in fact the jury in this matter will find that the conduct of the Defendant, Dr. Smith, constitutes elder abuse or just Smithple negligence, it would be an abuse of judicial discretion at the pleading stages to dismiss the cause of action given the specific factual allegations set forth in the complaint, and without even permitting the trier of fact to decide on the actual evidence to be submitted as to which theory they believe to be true, as it is within their exclusive domain to accomplish.
Further, the Plaintiffs, has set forth a prima facie case for Negligence, Negligence Per Se, Willful Misconduct, and as such, Defendant’s Demurrer must be overruled and concurrent Motion to Strike be denied. (See Part 2 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.