Articles Posted in Elder Abuse

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.)

Plaintiffs’ Combined Memorandum in Opposition to the Demurrer by National Convalescent Hospital, Inc., and National Defendants to the Third Amended Complaint

Plaintiffs submit the following combined Memorandum of Points and Authorities in opposition to the Demurrer by National Convalescent Hospital, Inc., and the individual National Defendants (referred to as “Hill” or “Hill defendants”) to Plaintiffs’ Third Amended Complaint. Plaintiffs have elected to file one memorandum in opposition to the two demurrers, because, with only one exception, the issues presented in the two demurrers are the same.

Plaintiffs have likewise contemporaneously filed a combined Memorandum of Points and Authorities in opposition to both motions to strike.

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

INTRODUCTION

The demurrer based on the statute of limitations addressed to the First Cause of Action for negligence and the Eighth Cause of Action for wrongful death raises important issues related to the limits of the scope of MICRA. This is because the demurrer is based on the assumption that each of the defendants is benefitted by MICRA’s statute of limitations provision at C.C.P. §340.5.

Specifically, the issue is whether the Hill defendants, i.e., officers, directors or other persons who participate in or meddle in the administration of a skilled nursing facility but who have no license to do so are shielded by the license issued to the licensee and the application of MICRA.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

In ruling on defendants’ initial demurrer to the original complaint as to the NIED claim, the Court sustained the demurrer with leave to amend to allege more specifically the conduct the plaintiff contemporaneously observed and the specific resulting injuries that cause plaintiff’s emotional distress. The plaintiff has cured this defect in her First Amended Complaint:

53. When Debra White was advised of the plan be defendant to discharge Harry White from Herrick Rehabilitation to their home, Debra White expressed concerns to nursing staff at Herrick that Harry White, because of his bowel impaction, multiple uncontrolled watery stool, severe wound and general weakness, was not in a condition to go home. Her concerns were responded to by advice that Mrs.White should obtain training and take care of Harry White at home.

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

Mrs.White believed that the decision to discharge her husband was wrong and not in his best interest, but acceded to the recommendation of Harry White’s physicians and nurses because she felt she had no choice. Thus, she did experience and appreciate the wrongfulness of defendants’ conduct and contemporaneously witnessed the injury and damage to her husband at their home and thereafter as a direct result of defendants tortuous conduct.

Mrs. White also properly alleges a bystander cause of action for NIED against National VNA. The Complaint alleges that she witnessed the conduct of defendant in that its nurses came to her home, saw the condition of Mrs. White and her husband, and breached its duty to provide proper care to Mr. White by failing to take immediate steps to have him rehospitalized.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

The Fifth Cause of Action Properly Alleges A Cause of Action For Negligent Infliction Of Emotional Distress

Debra White, as an alternative claim to the intentional infliction of emotional distress cause of action, asserts a claim for negligent infliction of emotional distress.

One of the bases for a “direct victim” claim for NIED is the negligent breach of a duty arising out of a pre-existing relationship. Burgess v. Superior Court (1992) 2 Cal. 4th 1064 is the controlling authority on that cause of action. In that case, a mother was permitted to bring an action for NIED when her fetus was allegedly injured by negligence during delivery. The Court reasoned that there was a preexisting relationship between the mother and the defendant physician such that a duty of ordinary care flowed from the physician to the mother.

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

The facts alleged in the Fifth Cause of Action allege an analogous cause of pre-existing relationship. It is clearly asserted that defendants undertook to encourage Mrs.White to agree to discharge her husband based upon representations, which were without basis, that he could be cared for at home as long as she was trained. The defendants then undertook to “train” Mrs. White for this task.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

It was both legally foreseeable and plainly obvious that such advice and conduct would cause Mrs. White severe emotional distress because it was clear Mrs. White would never be able to care for her husband at home. Thus, a direct victim claim for NIED is both properly pleaded and legally tenable against defendant Wong.

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

Plaintiffs’ NIED claim also meets the requirements of a so-called “bystander” emotional distress claim. It is alleged in paragraph 53 that Mrs. White believed that the decision to discharge her husband was wrong and not in his best interests, but she acceded to the recommendation of her husband’s physician because she felt she had no choice. Thus, Mrs. White has pleaded that she experienced the wrongfulness of the defendant’s conduct and then personally witnessed the injury and damage to her husband caused by that conduct. Thus, the bystander claim has been properly pleaded.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

Plaintiff Has Properly Pleaded A Cause Of Action For Negligent Infliction Of Emotional Distress As To Defendant Wong

Debra White, as an alternative claim to the intentional infliction of emotional distress cause of action, asserts a claim for negligent infliction of emotional distress.

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

One of the bases for a “direct victim” claim for NIED is the negligent breach of a duty arising out a pre-existing relationship. Burgess v. Superior Court (1992) 2 Cal. 4th 1064 is the controlling authority on that cause of action. In that case, a mother was permitted to bring an action for NIED when her fetus was allegedly injured by negligence during delivery. The Court reasoned that there was a pre-existing relationship between the mother and the defendant physician such that a duty of ordinary care flowed from the physician to the mother.

The facts alleged in the Fifth Cause of Action allege an analogous case of pre-existing relationship.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

The Fourth Cause of Action For Intentional Infliction of Emotional Distress Brought By Plaintiff Debra White Has Been Properly Pleaded.

As discussed in the Introduction, supra, the Court, on ruling on a previous demurrer, stated that, with further delineation of the specific conduct of each defendant, a cause of action for intentional infliction of emotional distress could be stated, as the conduct described appears to be “sufficient to constitute outrageous conduct …”

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

The Fourth Cause of Action incorporates the specific allegations against each defendant which are set out in the previous three causes of action including their participation in the decision to discharge Mr. White and leave his care to his wife at home. It then alleges that all of the defendants who participated in the decision to discharge Mr. White to his home knew of the susceptibility and vulnerability of Debra White to sustaining emotional distress. It is alleged that they were further aware that, in view of Mr. White’s severe medical problems, Mrs. White was incapable of providing extensive nursing and care services her husband required and that even her best efforts in that regard would result in Harry White suffering a decline in his skin condition, bowel status, nutrition, and well-being.

National VNA, it is alleged, saw the condition of Mr. White in his home and saw how helpless Mrs. White was to adequate care for his Stage IV pressure ulcer, uncontrolled diarrhea, dehydration and malnutrition.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

The Fourth Cause Of Action For Intentional Infliction Of Emotional Distress Is Properly Pleaded

Defendant Dr. Wong also demurs to the Fourth Cause of Action alleging intentional infliction of emotional distress as caused by him to plaintiff Debra White.

It should be noted that this claim was made against Dr. Wong and other defendants in the original complaint in this action. In ruling on the demurrer of co-defendants Universal and Sutter VNA, the Court granted the demurrer with leave to amend, observing that it appeared that the conduct alleged appeared to be “outrageous,” but that more specific pleading as to each defendant’s conduct was necessary.

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

The quality of the conduct asserted against Universal in this cause of action is virtually identical to that asserted against Dr. Wong. The allegations of the Fourth Cause of Action incorporate those of the proceeding causes of action, including the Second Cause of Action, the content of which is summarized above. Together the allegations of the Fourth Cause of Action allege that Dr. Wong knew that Mr. White suffered from multiple hospital-caused conditions which made it impossible for him to be discharged home, including a Stage IV pressure ulcer, bowel impaction with frequent liquid stools, immobility, orthopedic injury, and inability to care for himself. These conditions required 24-hour care from skilled providers. Dr. Wong knew that Mrs. White was in a vulnerable emotional state from witnessing her husband’s decline and deterioration while at Universal and National. Nevertheles, Dr. Wong led Mrs. White to believe that she would be able to care for her husband at home, a representation that he could not believe was true. Relying upon such advice, Mrs. White agreed to the discharge of her husband to her home on March 27, 2008.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

The Third Cause of Action Properly Sets Out A Claim For Reckless Neglect Of An Elder By National

The Third Cause of Action is brought against National VNA as a result of its neglect of Mr. White in accepting him for home care and perpetuating his inadequate care at home by doing nothing to intervene on his behalf. The allegations are these:

40. Due to the aforementioned neglect of defendants described hereinabove, Harry White was at his home from March 27, 2008 until April 4, 2008, and was steadily declining and suffering from inadequate care, despite the best efforts of his wife to care for him.

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

41. During the approximately one week Harry White was at home, agents and employees of defendants National, National VNA and DOES 131 to 150 came to the home of Harry White and Debra White on one occasion and observed his critically compromised condition, including the Stage IV pressure ulcer, uncontrolled diarrhea and wasting state which he Was in. Said defendants knew or should have known that Harry White was unable to be cared for at home and required the care of a 24-hour care facility and knew that Debra White could not care for her husband’s needs. With this knowledge, said defendants had a duty to recommend and facilitate Harry White’ transfer to a proper care facility and notify his physicians of the inadequacy of his circumstances at home. Knowing that Harry White would continue to suffer deterioration of his condition if he remained in his home, said defendants made the conscious decision to allow him to remain at home, knowing that his care would be inadequate and substandard. In particular, defendants knew that Debra White could not properly change the dressings on the Stage IV ulcer as required because the area was constantly moist from the uncontrolled diarrhea.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

As a result of clear and reckless indifference on the part of Dr. Wong, Mr. White was discharged home, did not receive the skilled care he needed and suffered multiple injuries and damage, including the progress of a large fecal impaction, explosive diarrhea, bloody stools, hypokalemia, volume depletion, weakness, cognitive deterioration, malnutrition, hypotension, and a persistent and progressive Stage IV pressure ulcer. These were the conditions from which he was found to be suffering when emergently readmitted to Universal from his home on April 4, 2008.

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

Taking these allegations to be true, as the Court must on demurrer, it is difficult to imagine how defendant can seriously argue that such conduct is defensible or at worst an act of inadvertence or oversight, as he seems to do in his moving papers. The allegations of the Second Amended Complaint do not describe conduct that merely breaches some standard of care in the rendition of medical services.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

Paragraph 24 sets out allegations of further egregious neglect by defendant Universal. It is alleged that, by March 27, 2008, the defendant knew that Mr. White was suffering from a constellation of severe medical problems, substantially caused by defendants’ own neglect. These included a severe bowel impaction which resulted in frequent episodes of liquid feces soaking his bed and a Stage IV pressure ulcer which required frequent dressing changes and assessment and which was difficult to keep dry because of the effects of the impaction. Mr. White required repositioning every two hours because of the presence of the ulcer, frequent diaper and linen changes and nutritional and hydration support, all of these made more problematic by his weakness and orthopedic injury.

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

Paragraph 24 also alleges that Universal knew that Mr.White required consistent skilled care for these conditions and that he could not be adequately cared for at home with these conditions, particularly since the care giver at home would be his wife, then aged 75 years, with no medical training. It is alleged that Universal had a duty to Mr. White to assure that he continued to receive proper skilled care, but that Universal, with reckless indifference, planned for and encouraged Mr. White to be discharged to his home, where Universal knew he would not receive the care he needed. When Mr. White was discharged home to be cared for by his wife, the foreseeable outcome occurred: his condition deteriorated, causing him unnecessary pain and physical and emotional distress.

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