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

(Please also 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.)

Wrongful Death Damages

Ms. Hill’s daughter has a claim for wrongful death. These claims will not be capped by MICRA for the same reasons discussed above in the preceding section, namely that is an elder abuse case and MICRA does not apply to elder abuse causes of action under Covenant Care, Delaney, Benun, and Country Vila, among others.

Punitive Damages Under California Civil Code Section 3294

Plaintiffs’ evidence demonstrates that defendants’ conduct was despicable and was carried out with a willful and conscious disregard for the rights and safety of others. This is malice. Conduct punishable by California Civil Code section 3295 involves intentional, willful, or conscious wrongdoing of a despicable or injurious nature. Cal. Civ. Code § 3294(c). From this conduct, it can be inferred that XYZ had the intention of depriving Ms. Hill of her legal right to be treated within the standard of care set by the federal and state regulations and their own policies and procedures, and, of course, causing her severe injury and death. Plaintiffs therefore have put forth evidence which could unhesitatingly persuade every reasonable mind that defendants’ conduct was so base, vile or contemptible that it should be punished. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

According to the United States Supreme Court, a court imposing punitive damages should assess, (1) the degree of reprehensibility of the defendant’s conduct, (2) the ratio of punitive damages to compensatory damages, and (3) the difference between the punitive damages award and the civil penalties authorized or imposed in comparable cases. BMW of North America, Inc. v. Gore, 517 U.S. 559, 574-76 (1996).

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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.)

Monica Smith, although legally separated from decedent, was still his wife at his death, and is thus a necessary party to this litigation.

California Probate Code §78 states that the term “surviving spouse”:

“does not include any of the following: (a) a person whose marriage to the decedent has been dissolved, or annulled, unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death; (b) a person who obtains or consents to a final decree of judgment or of dissolution of marriage from the decedent, or a final decree or judgment of annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other, or (2) subsequently live together as husband and wife; (c) a person who, following a decree of judgment of dissolution or annulment of marriage obtained by the person, participates in a marriage ceremony with a third person; or (d) a person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.”

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

A legal separation does not bar a wrongful death action by the surviving spouse if the divorce is not final at the time of decedent’s death. Luis v. Cavin (1948) 88 Cal.App.2d 107.

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https://www.moseleycollins.com/lawyer-attorney-1245027.htmlIt is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also 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.)

MICRA Does Not Apply To Elder Abuse Act Actions cont.

The California Supreme Court has drawn precisely this distinction between substandard care (professional negligence) and a health care provider’s total abdication of his responsibility to provide care (elder neglect abuse) in separating conduct that falls within the Elder Abuse Act from conduct that does not:

It is true that statutory elder abuse includes “neglect as defined in Section 15610.5,” which in turn includes negligent failure of an elder custodian “to provide medical care for the elder’s physical and mental health needs.” But as we explained in Delany, “neglect” within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from “professional negligence.” As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the “failure of those responsible for attending to the basic needs and comforts of the elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. Covenant Care, 32 Cal. 4th at 783 (citations omitted).

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

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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’ second cause of action fails to state a cause of action because it is brought by one who has no standing to assert it.

Plaintiffs’ First Amended Complaint fails to state facts showing that an affidavit or declaration under penalty of perjury required by §377.32 was executed. Plaintiffs also failed to comply with Probate Code section 58, discussed supra. As a result, plaintiffs failed to allege any facts showing that Robyn Lee, as the representative of decedent’s estate, has standing to assert the second cause of action for medical malpractice – survival action. Because Robyn Lee cannot assert the second cause of action individually due to lack of standing, and because plaintiffs have failed to state sufficient facts to show that Robyn Lee is decedent’s successor-in-interest or the personal representative of decedent’s estate, plaintiffs’ second cause of action fails to state a cause of action. Therefore, pursuant to C.C.P. §438(B)(ii), 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.

The Court Should Grant Defendant’s Motion For Judgment On The Pleadings As To Plaintiffs’ Third Cause Of Action.

C.C.P. §377.60 identifies who may bring a wrongful death cause of action. It provides that a cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons, or by the decedent’s personal representative on their behalf: (a) the decedent’s surviving spouse, domestic partner, children, and issue of decedent’s children. Each such heir has a personal and separate cause of action for decedent’s wrongful death.

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

(Please also 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.)

Attorneys’ Fees And Costs

Under the Elder Abuse Act, plaintiff’s attorneys’ fees and costs are a part of the damages award to the plaintiffs. Cal. Welf. & Instit. Code § 15657. Notably, attorneys’ fees under section 15657 are unilateral to the Elder Abuse victim, and may not be awarded to defendant. Id. The attorneys’ fees and costs incurred thus far in this case are substantial.

The actual number of hours spent in litigation is only a starting point for determining the amount of fees that will be awarded after trial. The hourly computer is known as the lodestar, which may be multiplied based on certain factors, including the novelty or difficulty of the questions presented and the skill of the prosecuting attorney; the extent to which the litigation precluded other employment by the attorneys; the contingent nature of the fee; the importance of the litigation; delay in receiving attorneys’ fees; whether substantial time was devoted to the litigation; success in achieving the ultimate purpose of the litigation; and the reputation and professional standing of the prosecuting attorney. Serrano v. Priest, 20 Cal. 3d 25, 49 (1977). The facts here are well suited for a multiple of at least 1.5 to the attorneys’ fees in this case. See, id., (1.4 multiplier); Coalition for LA County Planning etc. Interest v. Board of Supervisors, 76 Cal. App. 3d 241, 251 (1977) (2.0 multiplier).

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

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

(Please also 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.)

Remedies Available To Plaintiffs Under The Elder Abuse Act
Emma Hill’s Pain And Suffering

Under the Elder Abuse Act, pain and suffering survive the death of a victim of neglect. According to the operative section, “the damages recovered [for a decedent’s pain and suffering] shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code. Cal. Welf. & Instit. Code § 15657.” Plaintiffs maintain that Section 3333.2 does not in any way limit plaintiffs’ recovery because it only applies to “any action for injury against a health care provider based on professional negligence.” Cal. Civ. Code § 3333.2(a). As discussed in greater detail below, plaintiffs’ action does not sound in professional negligence but, instead, is an elder abuse action. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As the California Supreme Court recently has reaffirmed, an elder abuse action is separate and distinct from a professional negligence cause of action. Covenant Care, Inc. v. Superior Court, 32 Cal. 4 th 771 (2004) ( [A]s we explained in Delaney, “neglect” within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from “professional negligence.”) Based on this reasoning, California courts repeatedly have found that MICRA provisions, of which Civil Code section 3333.2 is one, do not apply to elder abuse actions. See id (MICRA provision found at CCP section 425.13 does not apply to elder abuse causes of action). (See Part 18 of 20.)

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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’ second cause of action does not allege a capacity to sue, is uncertain, ambiguous and unintelligible, and contains a defect and misjoinder of the parties.

Neither Robyn Lee, as an individual, nor as representative of decedent’s estate, has the capacity to sue Dr. Goldstein for medical malpractice – survival. Robyn Lee, as an individual, has no standing to allege medical malpractice against Dr. Goldstein. There are no facts to show that a physician-patient relationship existed at any time between Dr. Goldstein and Robyn Lee, or that any duty of care was owed by Dr. Goldstein to Robyn Lee as an individual, that there was a breach of any such duty, or that the breach of any such duty was the legal cause of any harm to her. Because Robyn Lee, as an individual, cannot assert a survival claim on her own behalf, plaintiffs’ second cause of action fails to allege a capacity to sue. Because Robyn Lee is not decedent’s successor-in-interest or the legal personal representative of decedent’s estate, the second cause of action fails to allege a capacity to sue on behalf of the estate. Defendant’s motion should be granted on this basis.

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

The fact that both Robyn Lee, as an individual, and as the erroneous representative to decedent’s estate, assert this cause of action, the second cause of action is uncertain, ambiguous and unintelligible. It is unclear whether both plaintiffs assert this second cause of action, or just one of them. Defendant’s Motion should be granted on this basis. (15)

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

(Please also 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.)

Since the Egan decision, numerous other cases have reenforced that the litmus test for determining a managing agent is the degree to which the corporation has delegated to the employee decision-making discretion in the employee’s sphere of authority, not the employee’s position in the corporate hierarchy and not the employee’s ability to make corporate-wide policy. Agarwal v. Johnson, 25 Cal. 3d 932 (1979) (project manager who oversaw 20-25 employees in one office of an international company with 5,000 employees was a managing agent); Textron Financial Corp. v. National Union Fire Ins. of Pittsburgh, 118 Cal. App. 4th 1061 (2004) (third party agent vested with discretion in administering insurance corporation’s commercial bus program a managing agent of the corporation for punitive damages purposes).

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

Plaintiffs maintain that numerous Universal employees were managing agents of Universal and the XYZ Corporate Defendants because such employees were delegated all of the critical patient care functions as to Ms. Hill such that they decided on behalf of these corporate entities the care that would be provided to Ms. Hill. They then set de facto policy regarding the nursing care to be provided to Ms. Hill and whether she would be transferred to the hospital to receive medical care for her broken hip.

In this case, defendants’ managing agents included Director of Nurses Shelly Brown, Station 4 Nurse Supervisor Anne Smith, and Ms. Hill’s charge nurses, among others. (See Part 17 of 20.)

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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.)

Robyn Lee is not the successor-in-interest or legal personal representative of decedent’s estate: cont.

Plaintiffs’ First Amended Complaint does not allege that Robyn Lee complied with C.C.P. §377.32. No required declaration was attached as an exhibit. There is no allegation that decedent died with or without a will, or that Robyn Lee is the sole beneficiary under decedent’s will or the sole person who succeeds to his cause of action. There is no allegation that there are no other beneficiaries to decedent’s will or no other persons who succeed to decedent’s cause of action. Therefore, Robyn Lee is not the legal successor-in-interest of decedent’s estate who is allowed to assert the survival action. She thus does not have any standing or legal capacity to assert the survival action on behalf of decedent’s estate. Moreover, the First Amended Complaint does not even allege that the survival action is being brought by Robyn Lee as decedent’s successor-in-interest, but rather it alleges that it is brought by her as the representative of the estate of decedent.

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

California Probate Code §58 (a) defines personal representative as the executor, administrator, administrator with the will annexed, special administrator, successor, personal representative, public administrator acting pursuant to §7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status.

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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, Sutter, or any skilled nursing facility.

(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.)

Plaintiffs Have Failed to Produce Legitimate Evidence to Support Their Cause of Action for Wrongful Death.

Wrongful death is a statutorily created cause of action and its elements are outlined within Civil Code §377.60. A cause of action of wrongful death requires evidence of negligence, or other wrongful act, a resulting death and damages, suffered by the heirs. Quiroz v Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263. In a wrongful death action, the plaintiff must prove the defendant’s conduct was a substantial factor in causing the alleged death. Bromme v Pavitt (1992) 5 Cal.App.4th 1487, 1507.

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

The evidence presented by plaintiff fails to provide any foundational basis for a reasonable jury to conclude Ms. Hill’s death was a result of any act which occurred at XYZ. There has been no presentation of evidence to indicate the existence of a skin wound on Ms. Hill while she was receiving treatment at XYZ. In addition, plaintiffs have failed to produce any evidence to indicate a foundational basis that the alleged cause of death, sepsis, was in any way related to the skin wound at issue or any other infection process which began or was in any way related to care at XYZ.

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