San Jose Family Files Medical Malpractice Suit Against Physicians, Part 3 of 6

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 note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

It is worth noting that situations similar to those described in this medical negligence case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Plaintiff’s Complaint is Uncertain Because the Facts Support Only a Cause of Action for Professional Negligence and Not for General Negligence
California Code of Civil Procedure §430.10 provides, in pertinent part:
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:
(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 San Jose personal injury lawyer, Moseley Collins.

A demurrer may be taken to the entire complaint or to any of the causes of action stated in the complaint. Code Civ. Proc. §430.50. For the purposes of testing the sufficiency of the cause of action, the demurrer assumes all material facts alleged in the complaint to be true. Serrano v. Priest (1971) 5 Cal.3d 584, 591, cert denied, 432 U.S. 907.

The function of a demurrer is to test the sufficiency of a complaint as a matter of law and it only raises questions of law. Banerian v. O’Mallev (1974) 42 Cal.App.3d 604, 611. A demurrer must be sustained if the complaint’s cause of action is uncertain. Code of Civ. Proc. §430.10(f).

Plaintiff’s complaint is uncertain and ambiguous in that the facts pled in the first cause of action read like medical negligence/wrongful death causes of action, but the cause of action is titled as General Negligence. It is unclear whether plaintiff is, in fact, asserting a medical negligence cause of action or attempting to plead a general negligence cause of action as well. C.C.P. §430.10(f).

Based upon his allegations, including the facts alleged on page 4 of the complaint, plaintiff’s complaint should plead one cause of action for medical negligence which allegedly resulted in decedent’s wrongful death. Based on the complaint allegations, plaintiff’s cause of action must be one of professional negligence, and it should be pleaded as such to avoid any confusion.

California law is clear on this issue. An action for damages arises out of the professional negligence of a health care provider if the patient’s injury or death is directly related to the professional services provided by the health care provider. The test of whether a health care provider’s negligence constitutes professional negligence is whether the negligence occurred in rendering services for which the health care provider is licensed. Canister v. Emergency Ambulance Service (2008) 160 Cal.App.4th 388, 404. It is not the degree of skill required but whether the injuries arose out of the rendering of professional services that determines whether professional as opposed to ordinary negligence applies. Canister, supra, at 404.

Therefore, the first cause of action is uncertain and fails to allege facts sufficient to state a cause of action for general negligence. Should the complaint survive the statute of limitations challenge, it should be reduced to a single cause of action for professional negligence. (See Part 4 of 6.)

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

Contact Information