Articles Posted in Medical Malpractice

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 that XYZ’s nursing staff and staff, recklessly neglected Mr. Lee by continuously giving him solid food, in violation of standing instructions because Mr. Lee had recently undergone surgery to remove a tumor inside his esophagus. Plaintiffs family and others warned XYZ to follow the instructions, but XYZ continued to disregard the instructions. This was not an isolated incident, nor limited to one person, but ongoing and continuous reckless neglect and treatment of Mr. Lee from September 14, 2006 through October 23, 2006. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

These facts are sufficient to establish the inference that as an on going and continuance act by XYZ’s staff, the managing staff of the hospital or others approved and ratified this conduct. Plaintiff has alleged these facts of ratification and authorization. XYZ’s reckless disregard of these standing instructions caused Mr. Lee serious pain and suffering and physical injuries, including choking on food, vomiting, aspirating into his lungs and suffering an incident of prolonged respiratory failure with significant permanent injury.

XYZ argues that it is unclear whether the non-solid food instructions provided when Mr. Lee was transferred to XYZ, was a part of XYZ’s doctor’s orders is irrelevant. XYZ is arguing what it contends should be the evidence, which is inappropriate on a demurrer. (Aubry v. Tri City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967 [demurrer admits the truth of all material facts].

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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.

LEGAL ARGUMENTS
Plaintiff’s Complaint is Uncertain Because the Facts Support Only a Cause of Action for Professional Negligence and Not for General Negligence
California Code of Civil Procedure §430.10 provides, in pertinent part:
The party against whom a complaint…has been filed may object, by demurrer … to the pleading on any one or more of the following grounds:
(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

A demurrer may be taken to the entire complaint or to any of the causes of action stated in the complaint. Code Civ. Proc. §430.50. For the purposes of testing the sufficiency of the cause of action, the demurrer assumes all material facts alleged in the complaint to be true. Serrano v. Priest (1971) 5 Cal.3d 584, 591, cert denied, 432 U.S. 907.

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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.)

PLAINTIFF HAS SUFFICIENTLY STATED A CAUSE OF ACTION FOR ELDER ABUSE

XYZ claims that the standard of pleading is different for an elder abuse claim. Though a statutory cause of action is to be plead with particularity, there is no heightened pleading standard. Plaintiff has alleged each element of a cause of action pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) Welfare & Institutions Code §15600, et seq., and the facts sufficiently, and with particularity, set forth XYZ’s pattern of reckless neglect of Mr. Lee.

PLAINTIFF HAS SUFFICIENTLY ALLEGED RECKLESS NEGLECT

Defendant’s argument that the facts regarding XYZ’s conduct do not describe “egregious” conduct, misstates the elements of the Elder Abuse Act.

The Elder Abuse Act provides for heightened remedies under W&I Code §15657 and applies to health care providers who recklessly neglect elder and dependent adults. Delaney v. Baker (1999) 20 Cal.4th 23, 30-31. As the court in Benun v. Superior Court (2004) 123 Cal.App.4th 113, 119, stated, To establish elder abuse, a plaintiff must show defendant was guilty of recklessness, oppression, fraud, or malice in the commission of [neglectful …] elder abuse]. (W&I Code §15657.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Elder Abuse Act defines the abuse of an elder to mean “physical abuse, neglect, … ” or “other treatment with resulting physical harm or pain or mental suffering,” or “the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (W&I Code §15610.07(a) and (b)).

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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.

LATER CASE OF HURLBUT HAS AFFIRMED THAT “LOST YEARS” ARE NOT SUBJECT TO PERIODIC PAYMENTS

That later time came four (4) years later, when the court of appeals for the Fifth District had an occasion to revisit the lost years area. In Hurlbut v. Sonora Community Hospital (1989) 207 Cal. App.3d 388, the court, relying upon the California Supreme Court decision in Fein, upheld the finding of lost years damages so as to allow the injured party the use of a specific pool of funds. (Id. at 405.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The court in Hurlbut, like the court in Fein, was again willing to strike out boldly in the area of loss of future earnings and its non-application to periodic payments, by categorizing the concept of “lost years” to be an exception to Code of Civil Procedure section 667.7. Ordinarily, under section 667.7, when a medical malpractice action results in an award for future damages, the trial court must order periodic payments on request. (Id. at 405.) However, where damages for future loss of earnings are concerned, a limited exception to this rule applies insofar as the award is for loss of earnings attributable to the plaintiff’s lost years (the period by which his life expectancy was diminished as the result of the defendant’s negligence). (Id. 405-406.)

Further, even though Fein left the issue of what deductions should be made for the saved cost of necessities from the plaintiff’s lost years recovery, the court in Hurlbut also chose not rule upon this issue. The court in Hurlbut, however, provided more justification behind its decision not to rule on the issue, than did the Fein court.

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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 generally demurs to the first cause of action for elder abuse on the grounds that plaintiff has failed to state sufficient facts to state a cause of action because plaintiff has not plead facts of reckless conduct by any employees of XYZ. This is incorrect, as throughout the complaint, plaintiff alleges the conduct by XYZ’s nursing staff and staff. XYZ argues that plaintiff has not identified any wrongful conduct by any managing agents, officers or directors of XYZ. Again, this is in error. The first cause of action for elder abuse sets forth sufficient facts to support the inference of ratification of this pattern of reckless neglect for 39 days by XYZ’s staff.

Combined in this motion is XYZ’s request to strike the allegations of punitive damages in the elder abuse cause of action on the same two grounds, in addition to asserting an erroneous argument plaintiff failed to comply with Code of Civil Procedure §425.13. The California Supreme Court held that §425.13 does not apply to elder abuse claims. XYZ specially demurrers to the first cause of action on the ground of uncertainty, without specifying the particular allegations that it contends is uncertain. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

XYZ specially demurs to the second cause of action for medical malpractice and third cause of action for wrongful death on uncertainty, again without specifying the particular allegations it contends is uncertain. XYZ then moves to strike the words reckless from the second and third causes of action, without citing any legal support. If plaintiff can prove recklessness, plaintiff will also have proven negligence.

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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.)

PLAINTIFF’S OPPOSITION TO DEMURRER AND MOTION TO STRIKE FILED BY DEFENDANT, XYZ HOSPITAL
INTRODUCTION

XYZ Hospital (“XYZ”), through its nursing staff and staff, engaged in a pattern for over a month of reckless neglect of Donald Lee by knowingly disregarding standing instructions from Mr. Lee’s prior health care providers, physicians and family that he only be fed pureed food because of a recent surgery to remove a tumor from his esophagus surgery. XYZ, through its staff and nursing staff, fed him solid foods in violation of these instructions, which caused Mr. Lee to choke on his food, vomit and aspirate into his lungs and suffer an incident of prolonged respiratory failure with significant permanent injury in his overall functioning. Mr. Lee was placed on a ventilator because he was no longer capable of breathing without mechanical assistance, underwent a tracheotomy and the insertion of a feeding tube. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Confined to his bed, Mr. Lee required re-positioning to avoid developing bedsores. XYZ, again through its nursing staff and staff, between September 14, 2006 and October 23, 2006, recklessly neglected Mr. Lee and failed to re-position him, causing him to develop a Stage II-III sacral decubitus ulcer. XYZ, however, contends these are not sufficient facts of reckless neglect and brought this combined demurrer and motion to strike to the complaint for elder abuse, wrongful death, and medical malpractice. (See Part 2 of 9.)

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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 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.

STATEMENT OF FACTS

Pro per plaintiff Vernon Hill filed his complaint on May 11, 2009, alleging wrongful death relating to the treatment and care defendant provided to his mother and decedent, Abigail Hill. According to plaintiff, defendant NMC’s treatment on various days in 2006 resulted in plaintiff’s mother’s death. The date of death is not alleged. Plaintiff alleges that he is the surviving heirs (sic) at law of decedent. Plaintiff does not identify his relationship with the decedent although defendant understands she was his mother. Plaintiff does not identify others who may have standing, nor does he state that he is the only person with standing. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

COMPLAINT ALLEGATIONS
Plaintiff’s cause of action titled General Negligence alleges various facts regarding the care and treatment rendered to decedent by NMC. Plaintiff then alleges that NMC’s negligent conduct led to decedent’s pain and suffering and death.

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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.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

On July 4, 2007, plaintiff Travis Lee filed a complaint against several medical defendants, including defendant Richard Brown, M.D. In his First Cause of Action, plaintiff alleges that in or about March of 2006, he presented himself at Universal Medical Center, under the care of defendant Mary Smith, M.D., complaining of a cut he received in his right foot. Subsequently, plaintiff alleges that he presented himself to the emergency room at National Medical Center due to severe pain and discoloration in his right foot and, thereafter, was <a href=”For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.”>diagnosed with gangrene and an amputation was recommended. Plaintiff further alleges that defendant America INS refused to authorize the amputation and, accordingly, he was transported to Universal Medical Center where he underwent a right below-the-knee amputation on April 23, 2006. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Specifically, plaintiff alleges that each of the defendants committed professional malpractice in that defendants performed procedures “in a negligent manner and below the standard of care,” and that despite plaintiff’s history of diabetes and gradually worsening condition of his cut, defendants, including Richard Brown, M.D., “conservatively treated and/or failed to properly diagnose and treat [plaintiff’s] medical condition,” resulting in severe and painful gangrene to his right foot.

Continue Reading ›

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.

Notice of Motion and Motion for Summary Judgment by Defendant Richard Brown, M.D. (C.C.P. §437c); Memorandum of Points and Authorities in Support Thereof.

This Motion will be made upon the grounds that there are no triable issues of material fact in this action in that the care and treatment rendered by defendant Richard Brown, M.D., to plaintiff Travis Lee, complied, at all times, with the applicable standard of care. Moreover, the care and treatment of defendant in no way caused, or contributed to, plaintiff’s alleged injuries and damages. Defendant Richard Brown, M.D., is, therefore, entitled to judgment as a matter of law. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Continue Reading ›

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 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.

Memorandum of Points and Authorities in Support of Defendant National Medical Center’s Demurrer
INTRODUCTION

Plaintiff’s complaint is based on the medical care provided to his mother and decedent, Abigail Hill, by defendants. Plaintiff alleges defendants’ negligent medical care resulted in his mother’s death.

The demurrer of National Medical Center to plaintiff’s complaint and its causes of action should be sustained without leave to amend for the following reasons:

The complaint is uncertain. On the first page of the complaint, plaintiff checked boxes indicating causes of action for “Malpractice/Negligence” and “Wrongful Death.” On page 3, plaintiff checked boxes indicating causes of action for General Negligence and Unfair Business Practices. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

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