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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also 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.)

As a result of clear and reckless indifference on the part of Dr. Wong, Mr. White was discharged home, did not receive the skilled care he needed and suffered multiple injuries and damage, including the progress of a large fecal impaction, explosive diarrhea, bloody stools, hypokalemia, volume depletion, weakness, cognitive deterioration, malnutrition, hypotension, and a persistent and progressive Stage IV pressure ulcer. These were the conditions from which he was found to be suffering when emergently readmitted to Universal from his home on April 4, 2008.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Taking these allegations to be true, as the Court must on demurrer, it is difficult to imagine how defendant can seriously argue that such conduct is defensible or at worst an act of inadvertence or oversight, as he seems to do in his moving papers. The allegations of the Second Amended Complaint do not describe conduct that merely breaches some standard of care in the rendition of medical services.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and medical negligence case and its proceedings.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

According to the Welfare and Institutions Code, Section 15610.07:

“Abuse of an elder or dependent adult means either of the following: (a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.”

An elder is defined by § 15610.27, as “any person residing in this state, 65 years of age or older.”

Neglect is defined by § 15610.57, in pertinent part as: (a)(1) the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

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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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Plaintiff fractured her left wrist in an ATV accident on December 22, 2008. She claims that moving defendant, Dr. Smith fell below the standard of care in his care and treatment of plaintiff and that he caused or contributed to her alleged injuries.

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

STATEMENT OF FACTS

Plaintiff, Anna Brown’s prior medical records reflect that she had pre-existing symptoms and complaints of the left upper extremity following a skydiving accident and breast reconstructive surgery. In fact, plaintiff was apparently totally disabled and on disability.

On or about December 22, 2008, plaintiff was involved in an ATV accident at which time she fractured the left distal radius. She was initially treated at Universal Hospital and instructed to follow up with an orthopedic specialist in the Sacramento area. Plaintiff presented to the Orthopedic Institute the following day on December 23, 2008, at which time she was evaluated by Donald Ward, M.D. During that visit, plaintiff related that on December 22, 2008, while at the beach and riding an ATV quad motorcycle, she tried to use the brake but her left hand could not grip due to prior nerve damage and breast reconstruction.

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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 elder abuse and personal injury case and its proceedings.)

Paragraph 24 sets out allegations of further egregious neglect by defendant Universal. It is alleged that, by March 27, 2008, the defendant knew that Mr. White was suffering from a constellation of severe medical problems, substantially caused by defendants’ own neglect. These included a severe bowel impaction which resulted in frequent episodes of liquid feces soaking his bed and a Stage IV pressure ulcer which required frequent dressing changes and assessment and which was difficult to keep dry because of the effects of the impaction. Mr. White required repositioning every two hours because of the presence of the ulcer, frequent diaper and linen changes and nutritional and hydration support, all of these made more problematic by his weakness and orthopedic injury.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Paragraph 24 also alleges that Universal knew that Mr.White required consistent skilled care for these conditions and that he could not be adequately cared for at home with these conditions, particularly since the care giver at home would be his wife, then aged 75 years, with no medical training. It is alleged that Universal had a duty to Mr. White to assure that he continued to receive proper skilled care, but that Universal, with reckless indifference, planned for and encouraged Mr. White to be discharged to his home, where Universal knew he would not receive the care he needed. When Mr. White was discharged home to be cared for by his wife, the foreseeable outcome occurred: his condition deteriorated, causing him unnecessary pain and physical and emotional distress.

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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 car accident and personal injury case and its proceedings.)

PLAINTIFF’S COUNSEL SOLELY LITIGATED THIS CASE TO A SUCCESSFUL CONCLUSION; WHITE’S INVOLVEMENT WAS NOMINAL

Plaintiff’s counsel, the Law Offices of XYZ, and particularly its principal, Marcia Brown, were solely responsible for securing the $100,000 settlement from defendants in this case. White did nothing in that regard, and it was otherwise only nominally involved in the case. It was the XYZ firm that, in May 2009, filed suit against the defendants on behalf of Mr. Black who had suffered serious injuries when defendant Melinda Smith ran a red light and slammed into his truck while he was in the course and scope of his employment. This is a reference to the Declaration of Marcia Brown, dated July 19, 2010, filed in support of this motion.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It was the XYZ firm that thereafter propounded copious discovery (form interrogatories, special interrogatories, document requests and requests for admission) on the defendants, and thereafter reviewed defendants’ discovery responses. Plaintiff’s firm also responded to defendants’ copious discovery requests (general interrogatories, special interrogatories, document requests, and requests for admissions).

The exhibits referred to are attached to Ms. Brown’s declaration. Exhibit 1 is a time line showing the progression of the suit and the XYZ’s firm work on it.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also 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.)

The Second Cause of Action incorporates all of the allegations of the First Cause of Action, which in detail describes the course of neglect which had occurred to Mr. White at Universal before his transfer to National, including the development of a severe Stage IV pressure ulcer, bowel impaction with fecal leakage, and mechanical fall resulting in orthopedic injuries to the neck, wrist and hand, and malnutrition. These conditions, it is alleged, persisted and were not resolved while Mr. White was a patient at National under Dr. Wong’s care.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Paragraph 32 of the Second Cause of Action alleges that on and prior to March 27, 2008, Mr. White was in such a debilitated condition that he was not suitable for being discharged to his home. Mr. White’s wife, Debra White, was 75 years of age at the time, and she had no experience or training in caring for a person in her husband’s condition. Dr. Wong then ordered that Mrs. White be trained by hospital staff to care for her husband at home. The care her husband needed was, inter alia, frequent diaper changes, turning him every two hours around the clock and caring for and dressing a large Stage IV pressure ulcer on her husband’s sacrum.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and medical malpractice case and its proceedings.)

Plaintiffs Fail to Allege a Cause of Action that Reaches Beyond Professional Negligence to the Level of Reckless Neglect of an Elder, and Thus, are Not Entitled to the Heightened Remedies Under the Elder Abuse Act.

Difference Between Allegations of Professional Medical Negligence and Elder Abuse

In Delaney v. Baker (1999) 20 Cal.4th 23, the Supreme Court of California set forth the difference between elder abuse claims and professional negligence claims. The legislative history of the Elder Abuse Act, as discussed in Delaney, indicates that it was intended to apply to acts of egregious abuse, while leaving acts of professional negligence not involving such egregious abuse to be dealt with under other law. Smith v. Ben Bennett, Inc. (App. 4 Dist. 2005) 35 Cal.Rptr.3d 612, 620.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

One main difference between these two areas of law is the remedies to which a plaintiff is entitled. The area of alleged elder abuse, governed by Welfare and Institutions Code, sections 15600 et. seq., has very specific prerequisites which must be met before a plaintiff may be entitled to recover the heightened remedies available under the Elder Abuse Act.

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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 elder abuse and personal injury case and its proceedings.)

Paragraph 17 in detail sets out a similar pattern of medical neglect with respect to Mr. White’s bowel status. It is alleged that Mr. White was at risk for impairment of bowel function because of age, poor nutrition, bed bound status and medication effects. Mr. White was not documented as having a bowel movement for 13 consecutive days while under the care of defendants. It is alleged that no report was made to Mr. White’s physicians as to this circumstance. Paragraph 17 asserts that as a result of this prolonged neglect by multiple Universal staff members, Mr.White developed constipation leading to bowel impaction. The bowel impaction, it is alleged, negatively affected Mr. White’s appetite, thus contributing to malnutrition and skin breakdown.

Paragraph 17 clearly charges that Mr. White was wrongfully discharged by Universal on March 27, 2008 with a worsening bowel impaction due to the institutional indifference of defendants. Again it is alleged that the Director of Nursing and other managerial agents of Universal knew of the lack of competence and attention in this regard by staff members since they were charged with assessing that the staff was properly trained, assessed, and supervised. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Paragraph 18 of the First Cause of Action sets out clear allegations of actionable neglect against Universal in connection with the failure to protect Mr. White from mechanical falls. Again it is alleged that Mr. White was known to be a high fall risk, primarily because he had undergone, during his hospitalization, orthopedic surgery.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also 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.)

The enhanced remedies that are available upon proof of reckless neglect of an elder include survival of general damages for pain, suffering, and emotional distress sustained by an elder who has since died, and attorney’s fees. Welfare and Institutions Code §15657.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Physicians can be held liable under the Elder Abuse statutes. That was the holding in Mack v. Soung (2000) 80 Cal.App. 4th 966. Such persons have care and custody of an elder within the meaning of the Elder Abuse Statutes when they undertake to care for an elder. The Court summed up its holding as follows:

“Delaney establishes that health care providers are not exempt from liability for reckless neglect simply because the cause of action arises from the rendition of health care services.” Mack v. Soung, supra, at 974.

Each of the required elements of proof to support a claim for reckless neglect of an elder is set out in the second cause of action of the Complaint and each is supported by specifically alleged facts. Those allegations together may be summarized as follows:

Harry White was an elder entitled to the protection of the Elder Abuse Act.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and medical malpractice case and its proceedings.)

LEGAL AUTHORITY cont.

A demurrer tests the sufficiency of the pleadings as a matter of law, and raises issues of law regarding the form or content of the opposing party’s pleading. (See Cal. Code Civ. Pro. § 589; James v. Superior Court of San Francisco (1968) 261Cal.App.2d 415, 416-417) The demurrer presents an issue at law as to the sufficiency of the alleged facts set out in the pleading. It follows that whether a complaint states sufficient facts to avoid a facial defect is a question of law which may be resolved upon demurrer. (See Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 300.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

ARGUMENT

The First and Second Causes of Action Do Not State Facts Sufficient to Support a Cause of Action Against Defendant Dr. Wong for Reckless Neglect of an Elder.

Plaintiffs Allege Many Legal Conclusions, But Fail to Support Those Conclusions with Specific Factual Allegations.

For purposes of testing the sufficiency of a cause of action, the court treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. (See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

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