Articles Posted in Medical Malpractice

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

SUMMARY JUDGMENT MUST BE GRANTED AS A MATTER OF LAW WHEN NO TRIABLE ISSUE AS TO ANY MATERIAL FACTS EXIST

It is well-established that a motion for summary judgment shall be granted when the moving party demonstrates that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code of Civil Procedure Section 437c(c). In making this determination, the court may rely on affidavits, declarations … and matters of which judicial notice shall or may be taken. Code of Civil Procedure section 437c(b). For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

The summary judgment statute was revised as of January 1, 1993, and now specifies that a party bringing a motion for summary judgment need only establish a defense or only negate a necessary element of the challenged cause of action to justify entry of summary judgment. Code of Civil Procedure Section 437c(n); cf. Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1050.

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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, U.C. 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.)

XYZ, in its notice, without reference to particularities or page or lines, claims that the 2nd and 3rd causes of action are uncertain as to the theory of liability and lack of reference to federal regulations (though not required to state a cause of action for medical malpractice or wrongful death). XYZ also claims that the first cause of action for elder abuse is uncertain, again with any citations to page or line or specifics, as to the allegations regarding reckless neglect on the part of employees, managing agents, officers or directors of the hospital. The special demurrer as to each cause of action for uncertainty must be denied. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The second cause of action is for medical malpractice, as it is entitled. By incorporation of the allegations from the general allegations and the first cause of action regarding XYZ’s duties and breach of those duties and standards of care, plaintiff has stated a cause of action of medical malpractice. Failure to identify a particular federal regulation is not required to state this cause of action.

The complaint is for the wrongful death of Mr. Lee by his surviving heir, based on the theories of elder abuse and medical malpractice and includes appropriate damage requests for Mr. Lee’s special damages under the Elder Abuse Act. Paragraph 55 of complaint is allowed by W&I Code §15657, and Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1254, 1265. The Elder Abuse Act allows for a claim for Mr. Lee’s special damages including his pain and suffering before his death.

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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 personal injury case and its proceedings.)

It is also 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, U.C. Davis Medical Center, Mercy, or Sutter.

There are additional problems with a reduction for saved necessities in lost years damages. First, the failure to award plaintiff his full compensation for his lost years damages flies right in the face of the rationale laid out in Hurlbut, which is to provide the injured person with the use of a specific pool of funds during his lifetime. Second, as Professor Fleming’s article also identifies, there is a clear distinction that is made in the recoverable damages in a personal injury action and in a wrongful death action. The distinction between recoveries in personal death actions and wrongful death actions cannot be clearer than the situation here – and as noted above in Overly. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further, plaintiffs are bringing a personal injury action against defendants. On the basis of this being a personal injury action, defendants can request periodic payments pursuant to California Code of Civil Procedure section 667.7. What is more, as was shown earlier, section 667.7 only has application and relevance in personal injury actions.

Therefore, it is completely illogical to apply concepts and rules that only have application in the context of wrongful death cases, in order to place a limitation upon “lost years” damages, when the law makes a clear distinction between personal injury and wrongful death actions and where periodic payments can only be utilized in such personal injury actions.

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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, U.C. 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.)

XYZ’S CLAIMS OF UNCERTAINTY FAIL

A demurrer based on uncertainty will be sustained only where the defendant cannot reasonably determine what issues must be admitted or denied or what claims are directed against it. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 927, p. 364; 1 Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1990) § 7:85, p. 7-23. See, Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty should be overruled where the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable through discovery, or not dispositive of one or more causes of action. Khory, supra, at 616. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The complaint contains more than sufficient facts to apprise XYZ of the issues it is being asked to meet, including labeling each of the causes of action so that XYZ can tell to what it is responding and therefore, the uncertainty claims fail. See, Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d, 135, 139, fn. 2. [ [U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

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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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

Thereafter, on April 23, 2006, plaintiff underwent a right leg arteriogram, performed by Dr. Brown, and skin oxygen saturation studies of his right lower extremity in order to determine the extent of the vascular disease. These studies revealed the blood supply in plaintiff’s ankle and proximally to the lower portion of the anterior tibia and peroneal arteries was very poor. In addition, the ulceration had extended laterally, including some of the heel area and involving all of the toes, and the oxygen saturation was only adequate from the ankle upward. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Accordingly, due to the lack of blood supply and tissue oxygenation, severe sepsis, and the intolerable pain plaintiff was experiencing, Dr. Brown recommended that a below-the-knee amputation be performed. That same day, April 23, 2006, Dr. Woo, assisted by Joe Black, M.D., performed a right below-the-knee amputation of plaintiff’s right foot. Plaintiff tolerated the procedure well and there were no complications.

Notwithstanding, as elaborated infra, plaintiff cannot prove the essential elements of a breach of the standard of care or causation against the moving defendant.

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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 for Professional Negligence is Barred by the Statute of Limitations.

A complaint is subject to a demurrer under Code of Civil Procedure § 430.10, subparagraph (e), if the facts alleged in the complaint and matters of which the court is entitled to take judicial notice show the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995; Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

The statute of limitations for medical malpractice claims is set out in Code of Civil Procedure §340.5. It provides, in pertinent part:

In an action for injury or death by a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through use of reasonable diligence should have discovered, the injury, whichever occurs first. C.C.P. §340.5. (emphasis added)

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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, U.C. 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.)

PUNITIVE DAMAGES IN THE ELDER ABUSE CAUSE OF ACTION IS SUFFICIENTLY PLED

CCP §425.11 is inapplicable to an elder abuse cause of action.

XYZ’s claim that Plaintiff must comply with Code of Civil Procedure §425.13 which requires that a plaintiff seek court permission to state a punitive damage claim in a medical malpractice cause of action, was held five years ago by the California Supreme Court as inapplicable in elder abuse causes of action. Covenant Care, Inc. v. Superior Court, (2004) 32 Cal.4th 771, 790. Plaintiff has not alleged punitive damages in his second or third causes of action.

PLAINTIFF HAS ALLEGED SUFFICIENT FACTS OF CONDUCT BY XYZ EMPLOYEES, MANAGING AGENTS AND RATIFICATION TO SUSTAIN THE CLAIM FOR PUNITIVE DAMAGES IN THE ELDER ABUSE CAUSE OF ACTION AND THE MOTION TO STRIKE MUST BE DENIED.

XYZ argues that plaintiff has not stated sufficient facts of punitive damages. The facts to support the reckless neglect of Mr. Lee and his rights while under XYZ’s care are also sufficient to state this claim of punitive damages in the elder abuse cause of action. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Pursuant to Cal. Civ. Code §3294(b) Plaintiff is entitled to punitive damages in that Defendant authorized or ratified the wrongful conduct for which Plaintiff seeks to recover. [White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 577].

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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, U.C. 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.)

As the court in College Hosp. v. Superior Court, (1994) 8 Cal.4th 704, stated, the issue of ratification commonly arises where the employer or its managing agent is charged with failing to intercede in a known pattern of workplace abuse, or failing to investigate or discipline the errant employee once such misconduct became known. In Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, the Court concluded the health provider’s failure to respond to known deteriorating pressure sores constituted a reckless failure to provide medical care for her physical health needs and that no changes were made to the patient care plan and/or that the care plan was not followed even with full knowledge that the pressure sore was deteriorating. The court further found that it would be reasonably inferred from this chain of events that [the health care provider] acted with reckless neglect in caring for Mrs. Intrieri. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The same is true in this case. Plaintiff has alleged facts of a pattern of reckless neglect, disregarding dietary plans and instructions, and failing to reposition Mr. Lee, for 39 days. These facts are sufficient to support the inference that supervisors and managers of the nurses and staff whom intentionally violated the standing dietary plan and instructions and failed to reposition Mr. Lee for weeks ratified this type of treatment of Mr. Lee.

Continue Reading ›

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, U.C. 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.)

PLAINTIFF ALLEGES SUFFICIENT FACTS OF XYZ’S NURSING STAFF AND STAFF RECKLESS NEGLECT

XYZ’s argument that plaintiff has not alleged facts regarding employees of XYZ fails to acknowledge the allegations throughout the complaint regarding XYZ’s nursing staff and staff. The complaint sufficiently states facts regarding XYZ’s nursing staffs recklessness in feeding Mr. Lee, in violation of standing orders, solid food, and again feeding him solid food after being confronted by more than one person. The failure to plead the specific names of the employees is not required; defendant has not cited any legal authority to support this argument. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFF ALLEGES SUFFICIENT FACTS TO SUPPORT THE INFERENCE OF RATIFICATION OF THE PATTERN OF RECKLESS NEGLECT BY XYZ’S MANAGING AGENTS, OFFICERS, AND DIRECTORS.

Plaintiff has sufficiently alleged facts of a pattern over 39 days that support inferences of ratification by XYZ’s officers, directors and/or managing agents.

Mr. Lee was a patient at XYZ from September 14, 2006, through October 23, 2006. After having undergone surgery to remove a tumor in his esophagus, he was admitted into XYZ for low blood pressure, with strict dietary instructions of no solid foods.

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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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

STATEMENT OF FACTS

On or about April 21, 2006, plaintiff was seen in the emergency department at Universal Medical Center. At that time, he was assessed as having gangrene of the right foot, diabetes mellitus, and sepsis. The plan was to admit plaintiff under the services of his attending physician, Mary Smith, M.D., and to have plaintiff seen by surgeon, Paul Woo, M.D. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Thereafter, on April 21, 2006, a physical examination performed by Dr.. Woo revealed that plaintiff’s right foot had no palpable pulsation on either of the dorsalis pedis, nor the posterior tibial artery. At that time, Dr. Woo’s impression was gangrene of the right foot, and he recommended non-invasive studies of the arteries of the right lower extremity. Accordingly, on April 22, 2006, right lower extremity radiological studies revealed no significant stenosis and no occlusion, and that plaintiff’s right foot gangrene was due to small vessel disease.

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