Personal Injury Lawyer Blog
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 also 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.)
XYZ, in its notice, without reference to particularities or page or lines, claims that the 2nd and 3rd causes of action are uncertain as to the theory of liability and lack of reference to federal regulations (though not required to state a cause of action for medical malpractice or wrongful death). XYZ also claims that the first cause of action for elder abuse is uncertain, again with any citations to page or line or specifics, as to the allegations regarding reckless neglect on the part of employees, managing agents, officers or directors of the hospital. The special demurrer as to each cause of action for uncertainty must be denied. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The second cause of action is for medical malpractice, as it is entitled. By incorporation of the allegations from the general allegations and the first cause of action regarding XYZ’s duties and breach of those duties and standards of care, plaintiff has stated a cause of action of medical malpractice. Failure to identify a particular federal regulation is not required to state this cause of action.
The complaint is for the wrongful death of Mr. Lee by his surviving heir, based on the theories of elder abuse and medical malpractice and includes appropriate damage requests for Mr. Lee’s special damages under the Elder Abuse Act. Paragraph 55 of complaint is allowed by W&I Code §15657, and Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1254, 1265. The Elder Abuse Act allows for a claim for Mr. Lee’s special damages including his pain and suffering before his death.
CONCLUSION
Based on the above, the demurrer must be overruled and the motion to strike denied. If the court believes that further facts need to be alleged, plaintiff requests that he be allowed to amend his complaint to address those concerns. If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. Quelimane Co., Inc., v Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 39; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.