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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.)

Notice of Motion and Motion for Summary Judgment By Defendant, Owen Smith, M.D.; and Declaration of Ben Lee, M.D.

Defendant, Owen Smith, M.D, will move this Court for an order granting Summary Judgment in favor of defendant, Owen Smith, M.D. and against plaintiff, Anna Brown, in this medical malpractice action.

This Motion is made pursuant to California Code of Civil Procedure Section 437c and is based upon the grounds that Plaintiff’s Complaint has no merit and there is no triable issue as to any material fact warranting trial with respect thereto because this moving defendant met the standard of care and did not cause or contribute to the injuries claimed by Plaintiff.

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

Pursuant to Evidence Code Section 452, moving defendants request judicial notice of all pleadings and records in the Court file in this action.

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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 Owen Black’s Memorandum of Points and Authorities in Support of Motion for Allocation of Attorney’s Fees and Costs Related To His Automobile Accident Case (Cal. Lab. Code, § 3860(c))

Motion for an equitable allocation of attorney’s fees and costs under section 3860(c) of the California Labor Code.

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

INTRODUCTION

Plaintiff’s counsel is like the title character in the story, The Little Red Hen. Like the little red hen who, all on her own, found the grain of wheat, planted it, tended it, and eventually mixed it with other ingredients to produce a delicious cake, plaintiff’s counsel took every step from start to finish, solely and successfully prosecuting Mr. Black’s case against the defendants who had seriously injured him in a car accident.

Plaintiff’s counsel filed the action; undertook all the discovery, including preparing for, taking, defending and attending depositions; collected all of the pertinent documents, including medical records, witness statements and accident reports; retained the experts; scheduled and attended the mediation; produced a series of damages calculations and filed a mediation brief laying out the factual basis for plaintiff’s claims regarding defendants’ liability for the car accident and for his damages. The case settled when defendants accepted plaintiff’s section 998 demand of $100,000, based on the evidence solely and exclusively gathered by plaintiff’s counsel.

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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.)

Defendant Edward Wong, M.D.’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiffs’ Complaint

Defendant Edward Wong, M.D. (hereinafter “Dr. Wong”) submits the following memorandum of points and authorities in support of his Demurrer to Plaintiffs Debra and Harry White’s Complaint.

INTRODUCTION

This case arises out of the alleged wrongful death of decedent Paul White, due to alleged elder abuse by Defendants. Plaintiffs allege in their Complaint the following causes of action: reckless neglect of an elder/elder abuse, intentional infliction of emotional distress, negligent infliction of emotional distress and wrongful death. This demurrer, on behalf of Defendant Dr. Wong, challenges the sufficiency of the first and second causes of action for reckless neglect of an elder on the grounds that the Complaint fails to state facts sufficient to constitute an action for reckless neglect of an elder/elder abuse and is uncertain as to this defendant.

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

LEGAL AUTHORITY
The California Code of Civil Procedure, Section 430.30 authorizes the filing of a demurrer in response to a complaint as follows: (a) When any ground for objection to a complaint …

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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.)

Physicians and other health care providers, as well as hospitals, 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.

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

The First Cause of Action of plaintiffs’ First Amended Complaint clearly set out facts, which, if proved, would entitle plaintiffs to compensation and statutory damages under the Elder Abuse statutes. It is brought against Universal Medical Center as operator of both an acute care hospital and the Merritt Rehabilitation unit. In summary, it is alleged that Harry White was a person protected by the Elder Abuse Statutes and that he was under the care and custody of the identified defendants. Paragraph 16 set out a pattern of aggravated neglect by defendants with regard to Mr. White’s skin integrity. It is alleged that Mr. White was known to be at great risk for skin breakdown because of a number of predisposing factors and that a proper pressure ulcer prevention plan was necessary for him. An essential element of such a program is regular repositioning. Proper nutrition and hydration are also important, it is alleged.

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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.)

ARGUMENT
Law Applicable to Demurrers

It is axiomatic that a demurrer does not test the sufficiency of evidence or other extrinsic matters. Four Star Electric v. F&H Construction.(1992) 7 Cal.App.4th 1218, 1224. The judge’s function on demurrer is to treat properly pleaded facts as true without consideration of whether they are provable or not. Ibid.

While these rules of determining a demurrer are well known, it is often valuable to remind the moving party of them. In the case at bar, if each properly pleaded fact in the Complaint were stipulated to be true, the defendant could not argue that the plaintiffs would not be entitled to a verdict under the Elder Abuse statues. This is another way of expressing the standard for judging a demurrer. When fairly viewed in this way, it is clear that defendant’s demurrer is without merit.

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

The Second Cause of Action Alleging Violations of the Elder Abuse Statutes Is Properly Pleaded

Defendant concedes that a cause of action for elder abuse under California Welfare and Institutions Code §15600 et seq., is a separate and distinct claim from medical negligence.

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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.)

Argument
Law Applicable to Demurrers

It is axiomatic that a demurrer does not test the sufficiency of evidence or other extrinsic matters. Four Star Electric v. F&H Construction (1992) 7 Cal.App.4th 1375, 1379. The only issue for the Court to resolve on demurrer is whether the complaint, as it stands, unconnected with extraneous matter, states a cause of action. Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224. The judge’s function on demurrer is to treat properly pleaded facts as true without consideration of whether they are provable or not. Ibid.

While these rules of determining a demurrer are well known, it is often valuable to remind the moving party of them. In the case at bar, if each properly pleaded fact in the Complaint were stipulated to be true, the defendant could not argue that the plaintiffs would not be entitled to a verdict under the Elder Abuse statutes. This is another way of expressing the standard for judging a demurrer. When properly viewed in this way, it is plain that defendants’ demurrer is without merit. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The First Cause of Action Alleging Reckless Neglect of An Elder Is Properly Pleaded.

Defendant concedes that a cause of action for elder abuse under California Welfare and Institutions Code §15600 et seg. is a separate and distinct claim for medical negligence.

The elements of proof of a claim for neglect of an elder are now embodied in the books of approved jury instructions, including CACI 3103. Enhanced remedies are permitted under the Elder Abuse statutes upon a showing of reckless neglect, malice, oppression, or fraud.

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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 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.)

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Demurrer of Defendant Edward Wong, M.D. to Plaintiffs’ First Amended Complaint
INTRODUCTION

This is an action for damages brought by Debra White, surviving spouse of Harry White, deceased, and Paul White, the son of Harry White.

Defendant Edward Wong demurs to the Second Cause of Action of the First Amended Complaint alleging reckless neglect of an elder in violation of the Elder Abuse statutes. He also demurs to the Fourth Cause of Action alleging Intentional Infliction of Emotional Distress and the Fifth Cause of Action for Negligent Infliction of Emotional Distress.

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

The Second Cause of Action alleges a violation of the Elder Abuse Statues (Welfare & Institutions Code §15600 et seq.) and asserts that, as Harry White’s treating physician, Dr. Wong was charged with the duty of making orders that promoted the welfare, safety and health of his patient, Harry White. It is alleged that Dr. Wong acted with reckless neglect of his patient when he discharged Mr. White home from the National Rehabilitation Center with a host of severe medical problems.

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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.)

Plaintiffs’ First Amended Complaint cures the defects the Court identified in the original complaint. The causes of action are specifically segregated as to the specific cause of action being alleged and the specific defendants against which each is being alleged.

The First Cause of Action is one alleging violation of the Elder Abuse statutes and is brought against defendant Universal only. As will be more specifically described below, it alleges reckless neglect in that Harry White, while under the care and custody of Universal, suffered a Stage IV pressure ulcer, bowel impaction, mechanical fall causing orthopedic injury, malnutrition and dehydration. It is alleged that the fact of Mr. White’s fall was not reported to his wife, who held medical power of attorney. Further, it is alleged that Mr. White was recklessly discharged home with the above conditions to be cared for by his wife, who was utterly incapable of caring for a patient with the aforementioned multiple severe conditions and that Mr.White’ condition was thereby worsened by that discharge, as defendants knew it would be.

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

The Second Cause of Action is brought solely against defendants other than the moving parties.

The Third Cause of Action is one for violation of the Elder Abuse statutes against National and National VNA only. This cause of action is based on reckless neglect by the home health agency which was engaged to provide nursing services while Mr. White was at home. It is alleged the agency knew or should have known that Mr. White needed a higher level of care than could be provided by his wife and a single weekly visit by a home health nurse.

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The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of civil filing 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 personal injury case and its proceedings.)

Plaintiffs Diane and Paul White’s Memorandum of Points and Authorities in Opposition to Demurrer on Behalf of Defendants Universal Medical Center and National Hospice to Plaintiffs’ First Amended Complaint for Damages
Introduction

This is an action for damages brought by plaintiffs Debra White, surviving spouse of Harry White, deceased, and Paul White, the son of Harry White.

The action is one for violation of the Elder Abuse Statutes (Welfare & Institutions Code §15600 et seq., aka “https://www.moseleycollins.com/lawyer-attorney-1245027.htmlEADACPA”), negligent and intentional infliction of emotional distress and wrongful death. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants Universal and National Hospice demur to all causes of action alleged against them in the First Amended Complaint except for the Sixth Cause of Action For Wrongful Death.

The Court, in ruling on these defendants’ demurrers to the original Complaint in this action, sustained the demurrers with leave to amend. The Court held that pleading did not sufficiently allege the specific conduct which was alleged as to each defendant, but the Court then noted that “if alleged more specifically against each defendant, it appears that the conduct described is sufficient to constitute outrageous conduct necessary for intentional infliction of emotional distress.” (See Part 2 of 10.)

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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 medical malpractice case and its proceedings.)

Plaintiffs failed to comply with California Rule of Court 312(g).

California Rule of Court 312(g) provides: each separate cause of action or affirmative defense in a pleading shall specifically identify its number; the party asserting it, if more than one party is represented in the pleading; and the party or parties to whom it is directed. Plaintiffs’ First Amended Complaint violates this rule because the second cause of action, medical malpractice – survival action, does not indicate the identity of the party asserting it because there are two plaintiffs. Although on the caption of the second cause of action it indicates that the action is against Does 6-20, in the body of the cause of action it identifies Dr. Hill, Dr. Goldstein, Dr. Martinez, and Valley Medical Center, as well as Does 6-20, as being negligent in causing harm to decedent. The third cause of action does not identify which plaintiff is asserting the cause of action, nor does it identify which defendant it is being directed against. Therefore, the First Amended Complaint is uncertain, ambiguous and unintelligible. Thus, the court should grant defendant’s motion for judgment on the pleadings.

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

CONCLUSION

For all of the reasons stated herein, Dr. Goldstein respectfully requests that the court grant his motion for judgment on the pleadings.

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