Articles Posted in Elder Abuse

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 Second Cause of Action incorporates all of the allegations of the First Cause of Action, which in detail describes the course of neglect which had occurred to Mr. White at Universal before his transfer to National, including the development of a severe Stage IV pressure ulcer, bowel impaction with fecal leakage, and mechanical fall resulting in orthopedic injuries to the neck, wrist and hand, and malnutrition. These conditions, it is alleged, persisted and were not resolved while Mr. White was a patient at National under Dr. Wong’s care.

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

Paragraph 32 of the Second Cause of Action alleges that on and prior to March 27, 2008, Mr. White was in such a debilitated condition that he was not suitable for being discharged to his home. Mr. White’s wife, Debra White, was 75 years of age at the time, and she had no experience or training in caring for a person in her husband’s condition. Dr. Wong then ordered that Mrs. White be trained by hospital staff to care for her husband at home. The care her husband needed was, inter alia, frequent diaper changes, turning him every two hours around the clock and caring for and dressing a large Stage IV pressure ulcer on her husband’s sacrum.

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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 17 in detail sets out a similar pattern of medical neglect with respect to Mr. White’s bowel status. It is alleged that Mr. White was at risk for impairment of bowel function because of age, poor nutrition, bed bound status and medication effects. Mr. White was not documented as having a bowel movement for 13 consecutive days while under the care of defendants. It is alleged that no report was made to Mr. White’s physicians as to this circumstance. Paragraph 17 asserts that as a result of this prolonged neglect by multiple Universal staff members, Mr.White developed constipation leading to bowel impaction. The bowel impaction, it is alleged, negatively affected Mr. White’s appetite, thus contributing to malnutrition and skin breakdown.

Paragraph 17 clearly charges that Mr. White was wrongfully discharged by Universal on March 27, 2008 with a worsening bowel impaction due to the institutional indifference of defendants. Again it is alleged that the Director of Nursing and other managerial agents of Universal knew of the lack of competence and attention in this regard by staff members since they were charged with assessing that the staff was properly trained, assessed, and supervised. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Paragraph 18 of the First Cause of Action sets out clear allegations of actionable neglect against Universal in connection with the failure to protect Mr. White from mechanical falls. Again it is alleged that Mr. White was known to be a high fall risk, primarily because he had undergone, during his hospitalization, orthopedic surgery.

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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 enhanced remedies that are available upon proof of reckless neglect of an elder include survival of general damages for pain, suffering, and emotional distress sustained by an elder who has since died, and attorney’s fees. Welfare and Institutions Code §15657.

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

Physicians can be held liable under the Elder Abuse statutes. That was the holding in Mack v. Soung (2000) 80 Cal.App. 4th 966. Such persons have care and custody of an elder within the meaning of the Elder Abuse Statutes when they undertake to care for an elder. The Court summed up its holding as follows:

“Delaney establishes that health care providers are not exempt from liability for reckless neglect simply because the cause of action arises from the rendition of health care services.” Mack v. Soung, supra, at 974.

Each of the required elements of proof to support a claim for reckless neglect of an elder is set out in the second cause of action of the Complaint and each is supported by specifically alleged facts. Those allegations together may be summarized as follows:

Harry White was an elder entitled to the protection of the Elder Abuse Act.

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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.)

Physicians and other health care providers, as well as hospitals, can be held liable under the Elder Abuse statutes. That was the holding in Mack v. Soung (2000) 80 Cal.App. 4th 966. Such persons have care and custody of an elder within the meaning of the Elder Abuse statutes when they undertake to care for an elder. The Court summed up its holding as follows:

“Delaney establishes that health care providers are not exempt from liability for reckless neglect simply because the cause of action arises from the rendition of health care services.”

Mack v. Soung, supra. at 974.

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

The First Cause of Action of plaintiffs’ First Amended Complaint clearly set out facts, which, if proved, would entitle plaintiffs to compensation and statutory damages under the Elder Abuse statutes. It is brought against Universal Medical Center as operator of both an acute care hospital and the Merritt Rehabilitation unit. In summary, it is alleged that Harry White was a person protected by the Elder Abuse Statutes and that he was under the care and custody of the identified defendants. Paragraph 16 set out a pattern of aggravated neglect by defendants with regard to Mr. White’s skin integrity. It is alleged that Mr. White was known to be at great risk for skin breakdown because of a number of predisposing factors and that a proper pressure ulcer prevention plan was necessary for him. An essential element of such a program is regular repositioning. Proper nutrition and hydration are also important, it is alleged.

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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.)

ARGUMENT
Law Applicable to Demurrers

It is axiomatic that a demurrer does not test the sufficiency of evidence or other extrinsic matters. Four Star Electric v. F&H Construction.(1992) 7 Cal.App.4th 1218, 1224. The judge’s function on demurrer is to treat properly pleaded facts as true without consideration of whether they are provable or not. Ibid.

While these rules of determining a demurrer are well known, it is often valuable to remind the moving party of them. In the case at bar, if each properly pleaded fact in the Complaint were stipulated to be true, the defendant could not argue that the plaintiffs would not be entitled to a verdict under the Elder Abuse statues. This is another way of expressing the standard for judging a demurrer. When fairly viewed in this way, it is clear that defendant’s demurrer is without merit.

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

The Second Cause of Action Alleging Violations of the Elder Abuse Statutes Is Properly Pleaded

Defendant concedes that a cause of action for elder abuse under California Welfare and Institutions Code §15600 et seq., is a separate and distinct claim from medical negligence.

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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.)

Argument
Law Applicable to Demurrers

It is axiomatic that a demurrer does not test the sufficiency of evidence or other extrinsic matters. Four Star Electric v. F&H Construction (1992) 7 Cal.App.4th 1375, 1379. The only issue for the Court to resolve on demurrer is whether the complaint, as it stands, unconnected with extraneous matter, states a cause of action. Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224. The judge’s function on demurrer is to treat properly pleaded facts as true without consideration of whether they are provable or not. Ibid.

While these rules of determining a demurrer are well known, it is often valuable to remind the moving party of them. In the case at bar, if each properly pleaded fact in the Complaint were stipulated to be true, the defendant could not argue that the plaintiffs would not be entitled to a verdict under the Elder Abuse statutes. This is another way of expressing the standard for judging a demurrer. When properly viewed in this way, it is plain that defendants’ demurrer is without merit. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The First Cause of Action Alleging Reckless Neglect of An Elder Is Properly Pleaded.

Defendant concedes that a cause of action for elder abuse under California Welfare and Institutions Code §15600 et seg. is a separate and distinct claim for medical negligence.

The elements of proof of a claim for neglect of an elder are now embodied in the books of approved jury instructions, including CACI 3103. Enhanced remedies are permitted under the Elder Abuse statutes upon a showing of reckless neglect, malice, oppression, or fraud.

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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 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.)

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Demurrer of Defendant Edward Wong, M.D. to Plaintiffs’ First Amended Complaint
INTRODUCTION

This is an action for damages brought by Debra White, surviving spouse of Harry White, deceased, and Paul White, the son of Harry White.

Defendant Edward Wong demurs to the Second Cause of Action of the First Amended Complaint alleging reckless neglect of an elder in violation of the Elder Abuse statutes. He also demurs to the Fourth Cause of Action alleging Intentional Infliction of Emotional Distress and the Fifth Cause of Action for Negligent Infliction of Emotional Distress.

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

The Second Cause of Action alleges a violation of the Elder Abuse Statues (Welfare & Institutions Code §15600 et seq.) and asserts that, as Harry White’s treating physician, Dr. Wong was charged with the duty of making orders that promoted the welfare, safety and health of his patient, Harry White. It is alleged that Dr. Wong acted with reckless neglect of his patient when he discharged Mr. White home from the National Rehabilitation Center with a host of severe medical problems.

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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.)

Plaintiffs’ First Amended Complaint cures the defects the Court identified in the original complaint. The causes of action are specifically segregated as to the specific cause of action being alleged and the specific defendants against which each is being alleged.

The First Cause of Action is one alleging violation of the Elder Abuse statutes and is brought against defendant Universal only. As will be more specifically described below, it alleges reckless neglect in that Harry White, while under the care and custody of Universal, suffered a Stage IV pressure ulcer, bowel impaction, mechanical fall causing orthopedic injury, malnutrition and dehydration. It is alleged that the fact of Mr. White’s fall was not reported to his wife, who held medical power of attorney. Further, it is alleged that Mr. White was recklessly discharged home with the above conditions to be cared for by his wife, who was utterly incapable of caring for a patient with the aforementioned multiple severe conditions and that Mr.White’ condition was thereby worsened by that discharge, as defendants knew it would be.

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

The Second Cause of Action is brought solely against defendants other than the moving parties.

The Third Cause of Action is one for violation of the Elder Abuse statutes against National and National VNA only. This cause of action is based on reckless neglect by the home health agency which was engaged to provide nursing services while Mr. White was at home. It is alleged the agency knew or should have known that Mr. White needed a higher level of care than could be provided by his wife and a single weekly visit by a home health nurse.

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The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of civil filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(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.)

Plaintiffs Diane and Paul White’s Memorandum of Points and Authorities in Opposition to Demurrer on Behalf of Defendants Universal Medical Center and National Hospice to Plaintiffs’ First Amended Complaint for Damages
Introduction

This is an action for damages brought by plaintiffs Debra White, surviving spouse of Harry White, deceased, and Paul White, the son of Harry White.

The action is one for violation of the Elder Abuse Statutes (Welfare & Institutions Code §15600 et seq., aka “https://www.moseleycollins.com/lawyer-attorney-1245027.htmlEADACPA”), negligent and intentional infliction of emotional distress and wrongful death. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants Universal and National Hospice demur to all causes of action alleged against them in the First Amended Complaint except for the Sixth Cause of Action For Wrongful Death.

The Court, in ruling on these defendants’ demurrers to the original Complaint in this action, sustained the demurrers with leave to amend. The Court held that pleading did not sufficiently allege the specific conduct which was alleged as to each defendant, but the Court then noted that “if alleged more specifically against each defendant, it appears that the conduct described is sufficient to constitute outrageous conduct necessary for intentional infliction of emotional distress.” (See Part 2 of 10.)

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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, Sutter, or any skilled nursing facility.

(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.)

Wrongful Death Damages

Ms. Hill’s daughter has a claim for wrongful death. These claims will not be capped by MICRA for the same reasons discussed above in the preceding section, namely that is an elder abuse case and MICRA does not apply to elder abuse causes of action under Covenant Care, Delaney, Benun, and Country Vila, among others.

Punitive Damages Under California Civil Code Section 3294

Plaintiffs’ evidence demonstrates that defendants’ conduct was despicable and was carried out with a willful and conscious disregard for the rights and safety of others. This is malice. Conduct punishable by California Civil Code section 3295 involves intentional, willful, or conscious wrongdoing of a despicable or injurious nature. Cal. Civ. Code § 3294(c). From this conduct, it can be inferred that XYZ had the intention of depriving Ms. Hill of her legal right to be treated within the standard of care set by the federal and state regulations and their own policies and procedures, and, of course, causing her severe injury and death. Plaintiffs therefore have put forth evidence which could unhesitatingly persuade every reasonable mind that defendants’ conduct was so base, vile or contemptible that it should be punished. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

According to the United States Supreme Court, a court imposing punitive damages should assess, (1) the degree of reprehensibility of the defendant’s conduct, (2) the ratio of punitive damages to compensatory damages, and (3) the difference between the punitive damages award and the civil penalties authorized or imposed in comparable cases. BMW of North America, Inc. v. Gore, 517 U.S. 559, 574-76 (1996).

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