Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)
In ruling on defendants’ initial demurrer to the original complaint as to the NIED claim, the Court sustained the demurrer with leave to amend to allege more specifically the conduct the plaintiff contemporaneously observed and the specific resulting injuries that cause plaintiff’s emotional distress. The plaintiff has cured this defect in her First Amended Complaint:
53. When Debra White was advised of the plan be defendant to discharge Harry White from Herrick Rehabilitation to their home, Debra White expressed concerns to nursing staff at Herrick that Harry White, because of his bowel impaction, multiple uncontrolled watery stool, severe wound and general weakness, was not in a condition to go home. Her concerns were responded to by advice that Mrs.White should obtain training and take care of Harry White at home.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Mrs.White believed that the decision to discharge her husband was wrong and not in his best interest, but acceded to the recommendation of Harry White’s physicians and nurses because she felt she had no choice. Thus, she did experience and appreciate the wrongfulness of defendants’ conduct and contemporaneously witnessed the injury and damage to her husband at their home and thereafter as a direct result of defendants tortuous conduct.
Mrs. White also properly alleges a bystander cause of action for NIED against National VNA. The Complaint alleges that she witnessed the conduct of defendant in that its nurses came to her home, saw the condition of Mrs. White and her husband, and breached its duty to provide proper care to Mr. White by failing to take immediate steps to have him rehospitalized.
It is alleged that Mrs. White also experienced the harm to her husband from the breach of duty. Therefore, both the contemporaneous tortious conduct and the resultant harm were witnessed by Mrs. White. The NIED claim against National VNA, is, therefore, also properly pleaded.
Conclusion
For the foregoing reasons, plaintiffs’ First Amended Complaint properly states causes of action for reckless neglect of an elder, Intentional Infliction of Emotional Distress and Neglect Infliction of Emotional Distress. Therefore, defendants’ demurrers must be overruled.
If the Court finds that there is any merit to any of the Demurrers, plaintiffs pray leave to file on amended Complaint to cure any defects in pleading.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.