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.
Thus, plaintiff must plead facts in sufficient detail to permit an inference of a reckless on the part of the Hospital staff as well as wrongful conduct on the part of an officer, director or managing agent.
PLAINTIFF HAS NOT PLEAD WITH PARTICULARITY CONDUCT RISING TO THE LEVEL OF EGREGIOUS AND DEPENDENT ADULT ABUSE
According to the complaint Mr. Lee was transferred from a nursing facility to XYZ Hospital on September 14, 2006 and remained there until October 23, 2006. According to the complaint, the initial transfer orders included a dietary order for pureed food. The complaint also alleges that family members warned of the need for pureed food, but it does not specifically allege what dietary orders were instituted by the dieticians and doctors at XYZ Hospital. It is thus unclear whether giving solid foods was a violation of the orders in effect while Mr. Lee was at XYZ Hospital.
As for the conclusory allegations that Mr. Lee received solid food because of alleged understating, plaintiffs do not allege any facts to show what the staffing was, what it should have been, or any facts that would show a connection between his diet and the alleged understaffing. Plaintiffs have failed to properly allege facts sufficient to show that the alleged failure to provide pureed foods was the result of egregious and reckless neglect.
Similarly, as to the development of decubitus ulcers, the existence of any injury, even a serious injury, is not in itself evidence of negligence, let alone evidence of reckless neglect, and plaintiff’s conclusory allegation that the Hospital failed to provide needed repositioning falls short of pleading, with particularity, facts to show reckless and abusive neglect in this regard. (See Part 5 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.