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 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.)

DEFENDANT XYZ HOSPITAL’S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTFFS’ COMPLAINT FOR DAMAGES
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF XYZ HOSPITAL’S DEMURRER AND MOTION TO STRIKE
INTRODUCTION

Plaintiff’s complaint arises out of the care and treatment provided to Donald Lee at XYZ Hospital and at a skilled nursing facility, Universal Hospital. The complaint alleges causes of action for medical malpractice, wrongful death and a cause of action under the dependent adult statutes. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dependent adult claims must be pled with particularity. Plaintiff has failed to properly plead facts sufficient to show reckless and egregious abuse on the part of an employee of XYZ Hospital, or facts to show wrongful conduct on the part of any officer, director or managing agent of the Hospital which must also be alleged to state a claim against the Hospital under Welfare and Institutions Code § 15657 and under Civil Code § 3294. The Hospital therefore demurs to the dependent adult claim and moves to strike the § 3294 punitive damage claim.

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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 wrongful death/elder abuse case and its proceedings.)

Plaintiffs Cannot Establish Causation: Nothing the Universal Medical Center Staff, or Dr. Greene, Did or Failed to Do Caused or Contributed to Mr. Ryan’s Death, as He Was Clinically Dead When He Arrived at the Emergency Room

Mr. Ryan was found in full cardiac arrest in his home. Paramedics arrived on scene approximately 15 minutes after Mr. Ryan was first found unresponsive, and he did not respond to the advanced life support efforts rendered by the paramedic team for over 30 minutes, between 2251 and 2322. In other words, by the time Mr. Ryan arrived at Universal, he had been unresponsive and lifeless (i.e., dead) for approximately 45 minutes. The emergency room staff undertook further resuscitation efforts which were overseen by Dr. Greene for yet another 23 minutes, with no success. Dr. Fine has reviewed the medical records from Universal which reflect the treatment rendered during the code, the medications given and the efforts undertaken to revive Mr. Ryan. It is her expert opinion that not only was this care well within the standard of care for emergency room treatment, but that the code could have been called even earlier than it was.

It is Dr. Fine’s opinion that Mr. Ryan was clinically dead by the time he reached the hospital, and there was nothing the staff or Dr. Greene could have done that would have brought Mr. Ryan back to life. Because Mr. Ryan was already dead on arrival at the hospital, nothing the hospital did could have caused his death, which had already occurred. Therefore, plaintiffs cannot establish the necessary elements of breach of standard of care or causation, and summary adjudication as to their wrongful death cause of action against Universal must be granted.

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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 wrongful death/elder abuse case and its proceedings.)

A medical practitioner is not to be held responsible merely because his treatment of a patient was not successful or was accompanied by untoward consequences. The practitioner is not omniscient or capable invariably of knowing that his professional acts will achieve the desired result; he is responsible only where it is established that he did not act with the knowledge or foresight of practitioners generally or as a reasonably skillful and experienced practitioner would have acted in the same circumstances.

The law does not require that a physician have the highest skill medical science knows. He or she is deemed to represent that he has only that reasonable degree of learning and skill possessed by practitioners of the same school or method in the locality and which is ordinarily regarded by those conversant with his type of practice as necessary to qualify him to engage therein. And the law makes allowance for human weakness in the application of skill and learning. The practitioner is required to use his best judgment in exercising his skill and applying his knowledge, but mere errors in judgment are not ground for liability unless the skill and judgment actually employed fall below the standard. Negligence on the part of a doctor is never presumed.

In a malpractice case, generally speaking, the doctor must be tested with respect to his knowledge and skill by the average knowledge and skill of practitioners of the same school of medicine in the locality where the doctor carries on his profession. It should be noted that Dr. Leonard was a general practitioner and did not claim to be a specialist, and that the amount of care to be expected from a general practitioner in a given locality is not as great as that expected from a specialist. (Allen v. Leonard (1969) 270 Cal.App.3d 209, 215-216.)

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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 wrongful death/elder abuse case and its proceedings.)

Plaintiffs Cannot Establish Negligence Against Universal: The Treatment Rendered to Mr. Ryan in the Emergency Room at Universal Medical Center Was Within the Standard of Care

With regard to Dr. Greene and the care rendered in the emergency room, the standard of care for a medical professional is indicated as follows:

An emergency room physician is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful emergency room physicians would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as the standard of care. (CACI No. 501.)

The standard of care is determined by expert testimony. (Ibid.) In this case, in order to establish that Dr. Greene and Universal staff were negligent, plaintiffs must demonstrate by a preponderance of evidence that treatment rendered to Mr. Ryan in the emergency room by Dr. Greene and the Universal staff fell below the standard of care, specifically with respect to the resuscitation efforts in the emergency room. It should be remembered that a doctor is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. A medical practitioner is negligent only if he was not as skillful, knowledgeable, or careful as other reasonable medical practitioners would have been in similar circumstances. (CACI No. 505.)

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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 wrongful death/elder abuse case and its proceedings.)

Plaintiffs Cannot Establish the Necessary Elements of Their Wrongful Death Cause of Action Against The, As All Treatment Was Within the Standard of Care and Did Not Cause Mr. Ryan’s Death
The essential factual elements of plaintiffs’ negligence/wrongful death claim against the The are:
1. That the staff of Universal Medical Center was negligent;
2. That Mr. Ryan was harmed (i.e, he died); and

3. That the staff negligence was a substantial factor in causing Mr. Ryan’s death. (CACI No. 500.)

Once again, for purposes of this motion only, it will be presumed that Dr. Greene was either an employee or agent of The Medical Center. In other words, plaintiff must be able to establish that the staff at The Medical Center fell below the standard of care applicable to then in treating Mr. Ryan during his emergency room visit while he was in full cardiac arrest, and that such treatment was a substantial factor in causing Mr. Ryan’s death. Notably, the complaint is entirely devoid of any allegations of negligence against any staff member at The Medical Center; rather, the complaint merely alleges that Dr. Greene did not undertake all necessary measures to revive Mr. Ryan.

Plaintiffs allege that Dr. Greene was an agent or employee of The. While this is untrue and in fact disputed by Universal, for purposes of this motion only, it will be presumed that Dr. Greene was acting it the course and scope of some agency relationship with Universal. Thus, if plaintiffs cannot establish that his treatment of Mr. Ryan was negligent, and that his negligence was a substantial factor in causing Mr. Ryan’s death, then summary adjudication as to Universal is warranted. It should be noted that Dr. Greene is not represented by counsel for Universal, and summary adjudication of the negligence/wrongful death cause of action is not sought as to Dr. Greene via this motion.

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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 wrongful death/elder abuse case and its proceedings.)

Once defendant has shown in its moving papers that a valid defense to the action exists or that one or more elements of a cause of action (such as elder abuse), even if not separately pleaded, cannot be established, defendant has met its initial burden of showing that the cause of action has no merit. (Code of Civ. Proc. §437c(p)(2).) Once the defendant has met that initial burden, the burden then shifts to plaintiffs who must then show that a triable issue of one or more material facts exists as to each element of that cause of action. (Code of Civ. Proc. §437c(p)(2).) However, this burden which plaintiffs must satisfy is quite stringent.

Plaintiffs must set forth specific facts which prove the existence of a triable issue of material fact relative to the clements of the cause of action. (Code of Civ. Proc. §437c(p)(2); Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Mere allegations or denials of the pleadings, or factually devoid responses to discovery, are simply not sufficient to demonstrate that a triable issue of material fact exists. (Code of Civ. Proc. §437c(p)(2); Lopez, supra at 1014; Saelzler, supra at 767; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583-84.) If plaintiffs fail to satisfy this burden, judgment in favor of the moving defendants shall be granted as a matter of law. (Code of Civ. Proc. §437c(c).)

Less well known is that plaintiffs opposing a motion for summary adjudication must actually go well beyond merely raising a nominal issue of fact. Plaintiff must produce evidence which is legally sufficient to satisfy the applicable evidentiary standard of proof they will ultimately bear at trial, such as preponderance of the evidence. (Leslie G. v. Perry & Associates (1996) 43 Cal.4th 472, 487.)

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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 wrongful death/elder abuse case and its proceedings.)

LAW AND ARGUMENT
Applicable Standards for Granting Summary Adjudication

The complaint frames the issues to be determined on summary judgment. (Varni Bros. Corp. v. Wine World, Inc. ( 995) 35 Cal. App. 4th 880, 887, ) When no triable issue of material fact exists, the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (f)(2).) Hence, a motion for summary adjudication should be granted in a personal injury case such as this if all the papers submitted show there is no triable issue as to any material fact with respect to the elements of the causes of action sought to be adjudicated. (Id., at subd. (f).) Summary adjudication must be granted if it disposes of a cause of action. (Ibid.)

A cause of action has no merit, and is therefore subject to summary adjudication, where “one or more of the elements of the cause of action cannot he separately established, even if that element is separately pleaded.” (Id., § 437c, subd. (n)(1).) Accordingly, summary adjudication is appropriate if any element of the challenged cause of action cannot be established.

California law also recognizes the appropriateness of summary adjudication … even if there are disputed factual issues, when the defendant’s showing negates an essential element of the plaintiff’s case. In this regard, “no amount of factual conflict upon other aspects of the case will preclude summary judgment.” (Shivley v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627.) The court is required to consider all the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence. (Code Civ. Proc. § 437c, subd. (c).)

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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 wrongful death/elder abuse case and its proceedings.)

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

At 2255, paramedics arrived at the residence of Sean Ryan in Stockton, California after a 911 call had been placed at 2251. Once on the scene, the paramedics found a 61 year-old male weighing approximately 400 pounds in full arrest. Ryan had no pulse and apneic with fixed and dilated pupils. He was cool to the touch in a warm house. Paramedics were advised by a man on the scene that Mr. Ryan had been down for less than 15 minutes. CPR was initiated and Mr. Ryan had no pulse electrical activity with an initial cardiac rhythm of 20 beats per minute, followed by asystole. The patient was hyperventilated prior to intubation.

Epinephrine and normal saline were given down the endotrachcal tube. The patient remained in asystole. IV access was attempted twice with no access gained. Mr. Ryan was transported to The Medical Center with ALS C-3 with one fire on board. He was turned over to the Emergency Department physician and nursing staff at 2321, approximately 26 minutes after the paramedics arrived on the scene, and approximately 41 minutes after Mr. Ryan was first determined to be down.

At 2322, after being presented to the Emergency Department, Mr. Ryan’s pupils were fixed and dilated and he had no pulse electrical activity. CPR was administered. At 2329, medications were administered via IV. Mr. Ryan remained in asystole throughout the hold count.

At 2330, Mr. Ryan continued to be asystolic with medications and CPR being administered. He remained asystolic throughout the next 13 minutes with additional doses of medication, hold counts, and CPR administered. At 2345, Dr. Greene called the end of the Code, at which time the patient was pronounced deceased.

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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 wrongful death/elder abuse case and its proceedings.)

Procedural Background

Mr. Ryan died on June 1, 2008. Plaintiffs filed a complaint on September 23, 2008. Plaintiffs named as defendants Gary Greene, M.D.; Physicians Medical Corporation, Inc. (Dr. Greene’s employer); The Medical Center; and James Black (Chief Operating Officer of The Medical Center). Plaintiffs’ Complaint for Damages set forth causes of action for: (1) wrongful death; (2) negligent hiring; (3) negligent supervision; (4) civil conspiracy; (5) intentional infliction of emotional distress; (6) elder abuse; and (7) negligent infliction of emotional distress.

On November 3, 2008, the TMC defendants filed a demurrer to all six causes of action for failure to state facts sufficient to constitute a claim for any of the above-enumerated causes of action. Presumably due to the numerous deficiencies, plaintiffs did not file an opposition to defendants’ demurrer, but they filed an Amended Complaint for Damages on December 3, 2008.

Plaintiffs’ Amended Complaint for Damages frames the issues for this motion for summary adjudication. It sets forth five causes of action. By way of demurrer, the TMC defendants have challenged the fourth and fifth causes of action for negligent infliction of emotional distress and elder abuse, respectively. The demurrer is set for hearing on March 8, 2009.

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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 wrongful death/elder abuse case and its proceedings.)

Plaintiffs’ complaint alleges wrongful death, failure to report and civil conspiracy, intentional and negligent infliction of emotional distress and elder abuse, against the various defendants. Defendant Dr. Gary Greene was the physician who oversaw the treatment of Mr. Ryan in the emergency room.

Notably, the complaint is completely devoid of any allegations of negligence against any staff or employee of Universal Medical Center with respect to the treatment Mr. Ryan received in the emergency department. Plaintiffs allege, rather, that Dr. Greene was negligent in treating Mr. Ryan, and they further allege that Dr. Greene was either an agent or an employee of Universal Medical Center.

The core grievance throughout plaintiffs’ complaint is their claim that Dr. Greene formed an intent to steal Mr. Ryan watch while in the emergency room, and thus he did not perform all necessary measures to resuscitate Mr. Ryan. Plaintiffs allege that Universal Medical Center is liable for Dr. Greene’s allegedly criminal actions. There is evidence in this case that Dr. Greene may have stolen the watch. The staff at Universal Medical Center, however, recovered the watch, which was returned to the family that night. There has been a grand jury indictment against Dr. Greene for the theft of the watch. The alleged theft, whether it occurred or not, however, is not germane to the issues herein. Whether or not the watch was stolen by Dr. Greene, however, is irrelevant to the issues presented in this motion for summary adjudication against the wrongful death cause of action.

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