Articles Posted in Wrongful Death

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.

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 will be discussed more fully below, and in the declaration of defendant’s expert, Dr. Stanley Choo, no act or omission on the part of Memorial Medical Center employees caused or contributed to any injury or damage to the plaintiffs’ decedent, Ms. Smith. The infection that occurred subsequent to Ms. Smith’s surgery is a known risk of the procedure and a risk that can occur in the absence of negligence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further, as is set forth in the declaration of Deborah Wong, infection control officer for Memorial Medical Center, in November 2008, the Department of Health conducted an intensive investigation into Pseudomonas infections at Memorial Medical Center based on a slightly increased rate of Pseudomonas infections which occurred in the Neonatal Intensive Care Unit (the NICU). The Department of Public Health determined that none of the adult patients infected with Pseudomonas at Memorial Medical Center in November and December 2008 were infected with the same strain of Pseudomonas that occurred in the NICU. Therefore, Ms. Smith’s Pseudomonas infection was not related to the “outbreak” of Pseudomonas in the NICU in 2008, as alleged by the plaintiffs in this case.

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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.

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.)

Motion for Summary Judgment; Memorandum of Points and Authorities in Support

Defendant MEMORIAL MEDICAL CENTER, will move this Court for an Order granting summary judgment in their favor and dismissing, with prejudice, Plaintiffs’ Complaint on file herein.

INTRODUCTION

This is a wrongful death/product liability/medical malpractice action against Memorial Medical Center and others in connection with the death of plaintiff’s decedent Kim Smith at University Hospital on January 19, 2009. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Ms. Smith underwent surgery by co-defendant, Dr. Phillip White at Memorial Medical Center in November 2008, for replacement of a pacemaker generator and defibrillator device (CRT-D). (Dr. White was not an employee of Memorial Medical Center.)

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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.

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 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.)

THE HEALTH AND SAFETY CODE § 1430 CLAIM MUST BE STRICKEN AS TO XYZ HOSPITAL

Health and Safety Code § 1430 applies to skilled nursing facilities and reads in part:

(a) Except where the state department has taken action and the violations have been corrected to its satisfaction, a licensee who commits a class “A” or “B” violation may be enjoined from permitting the violation to continue or may be sued for civil damages within a court of competent jurisdiction. …

(b) A current or former resident or patient of a skilled nursing facility, as defined in subdivision

(c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations. …

Thus Health and Safety Code § 1430 permits actions against the licensee of a skilled nursing facility, not acute care Hospitals. The claim under this statute must therefore be stricken as to XYZ Hospital. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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.

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 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.)

Similarly, the court in Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, noted:

The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. (See Taylor v. Superior Court, supra, 24 Cal.3d 890, 894, citing Prosser, Law of Torts (4th ed. 1971) § 2, at pp. 9-10.) Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [122 Cal.Rptr. 218].)Id. at 166. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Moreover, courts have also recognized that the requirements of Civil Code § 3294 (b) must also be pled factually to properly state a punitive damage claim against an employer/corporation:
” … we fail to see how any of those allegations sets forth facts to show Hospital’s advance knowledge, authorization or ratification. Also, absent from the complaint is any assertion an officer, director or managing agent of Hospital was personally responsible for any of the acts allegedly performed by Hospital.” Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167-168.

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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.

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 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.)

THE PUNITIVE DAMAGES SHOULD BE STRICKEN

Since plaintiff has failed to properly plead a dependent adult claim, he must comply with the requirements of C.C.P. §425.13 before alleging a punitive damage claim against a health care provider, and the punitive damages must be stricken until leave of court has been obtained. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

But even if plaintiff did not have to comply with § 425.13, the complaint fails to plead facts sufficient to support a punitive damage claim against the Hospital. To recover punitive damages plaintiff must prove an intent to injure or despicable conduct carried out with a willful and conscious disregard of a plaintiff’s safety. Civil Code § 3294. In College Hospital v. Superior Court (1994) 8 Cal. 4th 704, 705, the court characterized the addition of the despicable conduct requirement as a new substantive limitation on the award of punitive damages. Despicable conduct is specifically defined in BAJI 14.72.1 as follows:

“…conduct which is so [vile] [base] [contemptible] [miserable] [wretched] or [loathsome] that it would be looked down upon and despised by ordinary, decent people.”

See also Mock v. Michigan Mutual Ins. Co (1992) 4 Cal.App.4th 306, 331. The court in Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 recognized that despicable conduct must be pled, and it characterized despicable as a “powerful” term. No such conduct has been alleged here.

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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.

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 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.)

THE SECOND CAUSE OF ACTION FOR MEDICAL MALPRACTICE IS UNCERTAIN

The second cause of action is pled collectively against both of the entity defendants and do not contain any specific charging allegations against XYZ Hospital. The only relativity specific allegation in the second cause of action pertains to standards of care applicable to skilled nursing facilities. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Moreover, the second cause of action is entitled medical malpractice, but it contains references to reckless conduct and allegedly improper billing practices, neither of which would constitute medical malpractice as that term is generally understood. It is therefore uncertain as to the theories of liability plaintiff intends to assert in this cause of action.

The second cause of action also references federal regulatory requirements which were allegedly not maintained, but it fails to say what federal regulations were allegedly not followed.

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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.

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 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 ALSO FAILED TO PLEAD WRONGFUL CONDUCT ON THE PART OF AN OFFICER, DIRECTOR OR MANAGING AGENT OF THE HOSPITAL WITH THE REQUIRED PARTICULARITY
There is no vicarious liability under the elder abuse statutes. Welfare and Institutions Code § 15657 provides in part:

(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer. Civil Code §3294 and thus Welfare and Institutions Code § 15657 require reckless or otherwise wrongful conduct on the part of an officer, director, or managing agent of the corporate/employer defendant. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Civil Code §3294 (b) reads as follows:
An employer shall not be liable for damages…based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights and safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression fraud, or malice must be on the part of an officer, director, or managing agent of the corporation

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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.

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 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.)

DEPENDENT ADULT CLAIMS MUST BE PLED WITH PARTICULARITY

Even under general pleading requirements, pleadings must allege facts not just conclusions, and mere contentions, deductions and conclusions of law or fact need not be accepted as true. Ankeny v. Lockheed Missiles & Space Co (1979) 88 Cal.App.3d 531, 537; Serrano v. Priest (1971) 5 Cal.3d 584, 591. Moreover, a complaint, to be sufficient, must contain a statement of facts which, without the aid of other conjectured facts not stated shows a complete cause of action. Hawkins v. Oakland Title Ins. Guaranty Co. (1958) 165 Cal.App.2d 116, 122. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In addition, claims under Welfare and Institutions Code § 15657 are statutory causes of action, and they must be pled with particularity. In Covenant Care v. Superior Court 32 Cal.4th 771, 790, the Supreme Court states that the general rule requiring statutory causes of action to be pled with particularity applies to claims under the dependent adult statutes. The court cites to Lopez v. South California Rapid Transit District (1985) 40 Cal.3d 780, 795. In Lopez, the court stated the rule and concluded that to state a cause of action … every fact material to the existence of its statutory liability must be pleaded with particularity. Id. [Emphasis added.] Lopez in turn cites to Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5 which explains in part:

Because recovery is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate.

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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.

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 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.)

The civil remedies set forth in Welfare and Institutions Code §15657 read as follows:

Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Delaney v. Baker (1999) 20 Cal.4th 23, 31, the court defined the reckless state of mind necessary to establish a cause of action under the elder abuse statutes:

“Recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur (BAJI No. 12.77 [defining recklessness in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a “conscious choice of a course of action … with knowledge of the serious danger to others involved in it.” (Rest.2d Torts, § 500, com. (g), p. 590.) n. 5

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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.

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 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.)

APPLICABLE LAW
C.C.P. § 430.10 sets forth the grounds for demurrer:
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…
(d) There is a defect or misjoinder of parties.
(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 Sacramento personal injury lawyer, Moseley Collins.

C.C.P. §§ 435-436 permits the court to strike improper matters contained in the complaint. Section 435 and reads in part as follows:

(b)(1) Any party within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof…

Section 436 provides in part:
The court may, upon a motion made pursuant to Section 435…
(a) Strike out any irrelevant, false or improper matter inserted in any pleading.
(b) Strike out all or any part of any pleading not drawn …in conformity with the laws of this state, a court, or an order of the court.

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