Administrators Under Fire After Wrongful Death At Sacramento Nursing Facility, Part 8 of 9

It is worth noting that situations similar to those described in this elder abuse 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 wrongful death case and its proceedings.)

Wagner, as a health care provider .Davis’s function was allegedly as director of nursing. It was her exclusive responsibility to direct the nursing service. As set forth in the moving memo at p. 6, at 22 Cal. Code Regs. §72327(c) she is to have responsibility and accountability for the nursing services within the facility.

And as alleged in 19G of the 3d AC, her responsibilities were to ensure that care was provided in an organized and effective manner by all care giving disciplines within the facility. This latter duty is outside the scope of nursing practice and her license as a nurse, but is instead imparted to the Director of Nursing as an employee of a skilled nursing facility operation. This latter duty has been entirely overlooked by her demurrer, even though explicitly alleged in the 3d AC.

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

Hill, as health care providers. There are three basic categories of allegations against the Hill defendants. First, at 3, it is alleged that Hill operated various aspects or portions of the facility. They have no license to do so, and are unprotected by MICRA to the extent that they did operate the business. Second, at 14, Hill is alleged to have caused the dissolution of National Convalescent Hospital, Inc., with the result that they became the owner of its assets.

Third, they are alleged to have conducted the business of the Facility so as to leave it with insufficient resources, and as such are its alter egos. Id. While the demurrer’s focus is on the legal effect of dissolution or their status as alter egos, there is not even a shake of the head as to the allegations that Hill operated the facility’s business.

Defendants’ asserts that §340.5 applies to them because it includes “legal representative” within the definition of “health care provider.” Moving memo, p. 5, line 16. In support of that claim they cite Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 2d 865, 885. But Clemmer was not concerned with the definition of legal representative within MICRA. Instead, it considered the phrase as it occurs in C.C.P. §473 (court may relieve a party or his legal representative from judgment taken against him through mistake, etc.). Clemmer explained that the phrase legal representative in that context would be liberally construed to extend to a party who “has a sufficient interest in the action to maintain the motion.” Clemmer at 885.

Flores v. Natividad Medical Center (1987) 192 Cal. App. 3d 1106, 1116 is the only case to examine the phrase legal representative in the context of MICRA. It relies on Probate Code §108 and explains that the phrase refers to a person’s legal representative, i.e., executor, or administrator of one’s estate. (See Part 9 of 9.)

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

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