Personal Injury Lawyer Blog
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.
UNSUPPORTED CONCLUSORY REFERENCES TO RECKLESS CONDUCT IN THE SECOND AND THIRD CAUSES OF ACTION SHOULD ALSO BE STRICKEN
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. For all of the reasons set forth above, plaintiff has failed to allege facts in support of their conclusory allegations of recklessness, and the unsupported references to recklessness in the second and third causes of action should be stricken.
THE IMPROPER DAMAGE CLAIMS MUST BE STRICKEN FROM THE WRONGFUL DEATH CAUSE OF ACTION
In paragraphs numbered 57 and 55 in the third cause of action for wrongful death, plaintiff asserts claims for the decedent’s medical expenses as well as for the decedent’s pain and suffering. Damages incurred by the decedent prior to his death are not recoverable in a wrongful death cause of action. C.C.P. § 377.61. References to these improper damage claims must therefore be stricken from this cause of action.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.