Articles Posted in Wrongful Death

(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.)

Memorandum of Points and Authorities in Support of Defendant TMC, Inc.’s, dba Universal Medical Center’s Motion for Summary Adjudication
INTRODUCTION AND PROCEDURAL BACKGROUND

This motion for summary adjudication is brought on behalf of defendant TMC, Inc., dba Universal Medical Center (hereinafter collectively referred to as “Universal”) against plaintiffs’ first cause of action for wrongful death. Plaintiffs Sean Ryan, Jr. and Nancy Smith (hereinafter collectively referred to as “plaintiffs”) have alleged several additional causes of action against defendants, all of which they claim arose out of the death of their father, Sean Ryan, Sr. (hereinafter “Mr. Ryan”) on June 1, 2008.

Background Facts and Issues Presented

Mr. Ryan was a 61-year-old man weighing over 400 pounds. A neighbor called 911 after Mr. Ryan, had collapsed and was non-responsive for about 15 minutes. Emergency personnel arrived at approximately 2251 and found Mr. Ryan in full arrest with fixed and dilated pupils and cold to the touch. Mr. Ryan was intubated, and the paramedics attempted resuscitation for about 31 minutes, both at his home and en-route to the emergency room. During this time, Mr. Ryan remained non-responsive and had no pulse. The paramedics attempted to insert an intravenous line on-scene, but they were unable to gain access to a vein. Mr. Ryan was brought into the emergency room at Universal Medical Center at approximately 2322, still unresponsive.

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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.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF’S ELEVENTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Plaintiff was present in the hospital when Robert Lee was being mistreated by his doctors. As such, she is a bystander victim. Further, Plaintiff was in contact by telephone during the incident. There is clearly a duty owed by Defendant ODA to Plaintiff, as they assumed that duty when they reached out to her claiming to be ethical, concerned, professionals in the subject of organ donation. As experts in a highly specialized and professional area, organ donation, Defendant ODA owed a duty to Plaintiff to disclose what they knew about her son, and to inform Plaintiff of the facts relevant to her decision to donate organs. (See Tyler v. California Children’s Home (1994) 29 Cal.App.4th 51 1, 548 (duty of ethical principled professionals to disclose and inform). (See also Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 783-784 (homeowners relying on a brokers expertise, there was a duty to disclose various details on behalf of the broker).)

The demurrer should be overruled.

PLAINTIFF’S TWELFTH CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Plaintiff’s claim for unfair business is not about medical negligence. Plaintiff has stated sufficient facts to support a claim regarding Defendant’s business practices. Plaintiff respectfully submits that the complaint, read as a whole, makes clear that Plaintiff is alleging that Defendants are engaged in unscrupulous business practices, engaging in outright fraud and deceit in their effort to find organ donors, and supply organs to others. Plaintiff’s claim for unfair business practices is properly pled. Demurrer should be overruled.

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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.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF’S TENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Plaintiff alleges that Defendant ODA (a) intentionally committed fraud upon Cindy Lee in an effort to obtain her consent to harvest Ruben’s organs, and that (b) ODA did so knowing that Ruben was not an appropriate candidate for organ donation, and that (c) ODA and its employees intentionally bartered, abused and attempted to kill Robert Lee illegally in violation of all legal and ethical standards, including disconnecting him from life support without consent, and injecting him with lethal doses of drugs in an effort to hasten his death.

Defendant states that Plaintiff has failed to show any extreme or outrageous conduct on the part of Defendants

Defendant’s argument lacks merit. According to Defendant, intentional fraud, devious failure to inform Cindy Lee of her son’s prognosis and unsuitability for organ donation, illegal and intentional disconnection from life support and injection with lethal doses of drugs is not extreme and outrageous.

Plaintiff specifically alleges that ODA did these things, and that they directly lied to her in a fraudulent effort to gain her consent. Clearly, the conduct was directed at Plaintiff, as well as her deceased son Ruben.

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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.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF’S EIGHTH CAUSE OF ACTION FOR FRAUD IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Defendant’s sole argument against the fraud cause of action is that specific facts were not pleaded. Plaintiff respectfully disagrees. Extensive factual allegations of fraud exist throughout the complaint.

Defendant’s demurrer on grounds of “uncertainty” lacks merit. First, Plaintiff’s complaint pleads numerous specific facts and allegations. [S]pecificity in the pleadings is not required because any doubts are more properly resolved through discovery. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) Furthermore, any specificity requirements are relaxed when, as here, the defendants necessarily have superior knowledge of the facts. (Committee on Children’s Television, Inc v. General Foods Corp (1983) 35 Cal.3d 197, 213-214.)

Fraud is either actual or constructive. (Cal. Civil Code 1571.) Plaintiff’s complaint alleges both.

California Civil Code section 1572 defines actual fraud provides as follows:
1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
3. The suppression of that which is true, by one having knowledge or belief of the fact;
4. A promise made without any intention of performing it; or,

5. Any other act fitted to deceive.

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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.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF’S SIXTH CAUSE OF ACTION FOR NEGLIGENCE IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Defendant’s own arguments are self-defeating, and indicative of exactly why the demurrer should be overruled. On one hand, Defendant argues in its demurrer that “ODA cannot practice medicine” and therefore should not be subject to the seventh cause of action for medical malpractice. On the other hand, Defendant argues that the negligence claims are duplicative and thus should be stricken without leave to amend. Defendant cannot have it both ways. Defendant cannot argue that (a) it should be released (at pleading stage) from medical causes of action, and (b) it should be released from negligence causes of action because they are duplicative.

Plaintiff, on the other hand, is allowed to plead it both ways. In general, a plaintiff is entitled to plead alternative theories and even inconsistent allegations. (See Adams v. Paul (1995) 11 Cal.4th 583, 593.) Given that Plaintiff alleges that Defendant ODA was directing Doctors and Nurses, and that it did in fact employ medical professionals and direct their work, ODA is a proper defendant in both causes of action.

Defendant’s concerns can be dealt with in discovery. Its demurrer should be overruled.

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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.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiff’s Third Cause of Action for Negligence Per Se (Violation of Elder Abuse and Dependant Adult Civil Protection Act, hereinafter, “EADACPA”) is Properly Pled

Plaintiff’s third cause of action is not solely a negligence per se claim. While the third cause of action refers to EADACPA as a basis for a negligence per se claim, the cause of action itself is titled as a “Violation” of that act. The third cause of action is not duplicative of anything. It is a stand alone cause of action for Abuse of an Adult Dependent.

Defendant’s demurrer on grounds that the complaint contains allegations of intentional conduct and negligence on the same facts wholly lacks merit In general, a plaintiff is entitled to plead alternative theories and even inconsistent allegations. (See Adams v. Paul (1995) 11 Cal.4th 583, 593.)

Plaintiff’s Fourth Cause of Action for Negligence Per Se (Prescription of Controlled Substance Without Legitimate Medical Purpose) and Fifth Cause of Action for Negligence Per Se (Violation of Uniform Anatomical Gift Act)

Defendant’s demurrer to the fourth and fifth causes of action should be overruled. It is clear from the complaint that these statutes are two separate statutory basis for negligence per se claims. They are not duplicative. Duty, breach, causation and damages are all pled, as well as the statutory grounds for negligence per se claims. In general, a plaintiff is entitled to plead alternative theories and even inconsistent allegations. (See Adams v. Paul (1995) 11 Cal.4th 583, 593.)

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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.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiff’s Third, Fourth And Fifth Causes Of Action For Negligence Per Se Are Sufficiently Pled And Supported By Factual Allegations

Defendant’s argument in support to demurrer to the Third, Fourth and Fifth causes of action are essentially that (a) Plaintiff’s complaint is too organized, and (b) the causes of action do not specifically identify how each defendant supposedly violated the specific statutes.

Plaintiff’s effort to be clear and specific by pleading a “Negligence Per Se” cause of action for each separate and distinct statute involved is not grounds for demurrer.

California Evidence Code section 669 provides, in pertinent part, as follows:

The failure of a person to exercise due care is presumed if:
(1) He violated a statute, ordinance, or regulation of a public entity;
(2) The violation proximately caused death or injury to person or property;
(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

In an effort to specifically and clearly plead the causes of action and claims at issue in this case, Plaintiff delineated a separate and distinct cause of action for Negligence Per Se for each separate and distinct statute involved.

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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.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF’S NEGLIGENCE BASED CAUSES OF ACTION ARE SUFFICIENTLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Defendant demurrers to Plaintiff’s cause of action for battery on grounds that (1) plaintiff failed to specifically identify which defendants committed the battery, and that (2) there is not one scintilla of fact or evidence that the defendant intended to cause harm to the decedent.

Plaintiff’s First Cause Of Action For Wrongful Death Is Proper

Defendant’s sole argument in support of demurrer to the first cause of action for wrongful death is that it is “duplicative.” That argument lacks merit. The cause of action for wrongful death is not duplicative simply because it involves the same facts as other causes of action.

Defendant ODA states that there is a single. statutorily created cause of action for wrongful death. (Code Civ. Proc., §377.60 et seq.) CCP section 377.60 simply enumerates those persons who may assert “a cause of action for the death of a person caused by the wrongful act or neglect of another.” That does not mean that there can only be one cause of action that somehow relates to someone’s death. Defendant’s argument has no support in fact or law.

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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.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF’S CAUSE OF ACTION FOR BATTERY IS SUFFICIENTLY PLED AND SUPPORTED BY THE ALLEGATIONS OF THE COMPLAINT

Defendant demurrers to Plaintiff’s cause of action for battery on grounds that (1) plaintiff failed to specifically identify which defendants committed the battery, and that (2) there is not one scintilla of fact or evidence that the defendant intended to cause harm to the decedent.

The Complaint Clearly Alleges Battery Against All Defendants

Defendant’s demurrer to battery is first premised on the statement that plaintiff failed to specifically identify which defendants committed the battery. (Id.) Defendant’s argument fails for two reasons.

First, Defendant fails to cite any authority whatsoever to indicate that Plaintiff must “specify which Defendant” committed the acts of battery. There is no such requirement. California is a notice pleading state, and the cause of action for battery is sufficient to put Defendant ODA on notice that Plaintiff is alleging that ODA is responsible for battery.

Second, even if Plaintiff was required to specify which Defendant committed the acts of battery, the complaint does so. The complaint clearly alleges which Defendants committed the battery. The cause of action for battery is against all Defendants. The cause of action for battery specifies (a) taking Robert Lee off a respirator (b) administering a lethal dose of morphine and Ativan to him, intentionally and/or recklessly and/or in conscious disregard of his rights. Plaintiff alleges that Defendants Hill and Brown were employees and/or agents and/or representatives of Defendant ODA, and were acting on ODA’s behalf.

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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.)

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, U.C. Davis Medical Center, Mercy, or Sutter.

Organ Donor Association And Its Staff Violated California Law And The UAGA
California Health and Safety Code section 7182 provides, in pertinent part, as follows:

Neither the physician making the determination of death under Section 7155.5 nor the physician making the independent confirmation shall participate in the procedures for removing or transplanting a part.

Plaintiff’s complaint further alleges that as provided by California law, transplant doctors are not to direct the treatment of potential organ donors before they are declared dead. Plaintiff alleges that Defendants, including specifically David Hill, M.D., whom Plaintiff alleges was an employee and/or agent and/or representative of Defendant ODA, “violated California law by taking part in Robert Lee’s care and treatment before his own and independent physician declared him dead.”

Defendant ODA Did Not Attempt In Good Faith To Act In Accordance With The Provisions Of The Chapter At Issue
It is clear from the allegations of Plaintiff’s complaint that Plaintiff is alleging that Defendant ODA violated numerous provisions of California law, and that ODA did not attempt in good faith to act in accordance with the provisions of the UAGA. Plaintiff alleges that ODA attempted to obtain her consent for organ donation when she was “in shock, and terribly upset.” ODA repeatedly attempted to obtain her consent, after she already told them she had to leave and could not give consent.

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