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, 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 birth injury lawsuit and its proceedings.)
THE THIRD CAUSE OF ACTION FOR WILLFUL MISCONDUCT FAILS
The Third cause of action, entitled “Willful Misconduct,” is based on the same allegations as those contained in the First cause of action for medical malpractice. The pleading does not contain the type of allegations of intentional conduct needed to maintain a cause of action for Willful Misconduct.
Willful Misconduct is generally an element within a cause of action or a claim for damages, such as elder or dependent adult abuse or a claim for punitive damages, and it is doubtful that there exists an independent cause of action in California for willful misconduct. Willful misconduct should be categorized as battery, fraud, etc. The plaintiff seems to be attempting to plead some sort of catch-all intentional tort under the title of “Willful Misconduct.”
Nevertheless, in the event that there does exist such a cause of action, plaintiff has failed to set forth facts in regard to the demurring defendants sufficient to maintain the cause of action. In Nazar v. Rodeffer, 184 Cal. App.3d 546, 552 (1986), the court discussed the concept of willful misconduct as follows:
“The concept of willful misconduct has a well-established, well-defined meaning in California law. Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results.”
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
In Nazar, the plaintiff was injured in a motorcycle accident that occurred on the defendant’s property that the plaintiff had entered for the recreational purpose of riding his motorcycle. Importantly, the court did not recognize a cause of action for willful misconduct. Instead, its discussion of willful misconduct pertained to whether the defendant could assert a statutory defense to the plaintiff’s negligence cause of action. The statutory defense that the defendant sought to assert did not apply where the defendant acted willfully or maliciously. The court held that the plaintiff’s mere conclusory general statement that defendants acted willfully and maliciously in failing to warn about the concrete drainage was not enough.
Similarly, in the instant action, there are no facts alleged that would constitute a tort called willful misconduct (even if it exists as an independent tort, which the defendants contend that it does not). The allegations that the plaintiff’s mother was not warned that carrying twins carried a greater risk than carrying a single fetus, that the plaintiff’s mother had had one other pre-term infant, eleven years earlier, and the defendants did not review the birth records from that pregnancy, as well as the other allegations herein, do not contain facts showing the type of intentional conduct caused with reckless disregard that would amount to willful misconduct. Consequently, defendants’ Demurrer should be sustained without leave to amend as to Plaintiff’s Third cause of action.
CONCLUSION
For the reasons set forth herein, the defendants respectfully request that the court sustain their demurrer without leave to amend.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.