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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.)

Facts

Plaintiffs’ First Amended Complaint is brought by Robyn Lee, individually, and as the representative of the Estate of James Smith. (See Plaintiff’s First Amended Complaint.) According to plaintiffs’ First Amended Complaint, Robyn Lee is the daughter of James Smith and the representative of his estate. Plaintiffs also allege that on February 17, 2008, decedent, an elderly man who walked with the aid of a walker, allegedly tripped and fell striking his forehead and suffering injuries. Plaintiffs allege that decedent died on June 23, 2009. Plaintiffs allege two causes of action against Dr. Goldstein: medical malpractice – survival and wrongful death. 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’ Second Cause Of Action For Medical Malpractice – Survival.

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

C.C.P. §377.20 provides that a cause of action for a person is not lost by reason of the person’s death, but survives. C.C.P. §377.11 states that decedent’s successor-in-interest means the beneficiary of the decedent’s estate, or other successor-in-interest who succeeds to a cause of action. C.C.P. §377.10 defines the term Beneficiary of Decedent’s Estate. It states that beneficiary of the decedent’s estate means: (a) If the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action…under the decedent’s will; (b) If the decedent died without a will, the sole person or all of the persons who succeed to a cause of action….

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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.)

SUMMARY JUDGMENT SHOULD BE GRANTED WHERE THE ACTION IS WITHOUT MERIT AND PRESENTS NO TRIABLE ISSUE OF ANY MATERIAL FACT

Allowing the Court to look beyond the Complaint to determine whether the plaintiffs have any evidence to support their claim, the California Code of Civil Procedure §437c(a) provides in pertinent part as follows:

“Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit … the motion shall be granted if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is well-established that a motion for summary judgment will be granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1558. A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. California Code of Civil Procedure §437c(p)(2). Once the defendant’s burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724.

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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.)

Finally, “recklessness,” while not defined under Civil Code §3294, is, under common law, referred to as a subjective state of culpability greater than negligence. It is the “deliberate disregard for a high degree of probability that an injury will occur” and involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions. It rises to the level of a conscious course of action with knowledge of the serious danger and likelihood of injury to the plaintiff. Delaney, supra at 31-32. Plaintiffs have presented no evidence of any subjective culpability of any staff member at XYZ Healthcare providing care and treatment to Ms. Hill.

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

The scope, purpose and standard of proof required under the Elder Abuse Act was determined by the California Supreme Court in the seminal cases of Delaney v Baker, supra and Covenant Care, Inc v Superior Court (2004) 32 Cal.4th 771, 783, wherein it was stated:

As we determined in Delaney, if the neglect (or other abuse) is reckless or done with oppression, fraud or malice, “then the action falls with the scope of [Welfare & Institutions Code] §15657 and as such cannot be considered simply based on … professional negligence … That only these egregious acts were intended to be sanctioned under §15657 is further underscored by the fact that the statute requires liability to be proved by a heightened clear and convincing evidence standard.” Delaney, supra at 35, Covenant Care, supra at 35. Covenant Care, Inc v Superior Court, (2004) 32 Cal.4th 771, 783. (See Part 6 of 8.)

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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 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 car accident case and its proceedings.)

DEFENDANTS’ MOTION IN LIMINE TO SET REASONABLE VALUE OF MEDICAL SERVICES

SUBJECT EVIDENCE: REASONABLE VALUE OF MEDICAL SERVICES AS THAT AMOUNT REDUCED OR ADJUSTED BY MEDICAL PROVIDERS PRIOR TO PAYMENT BY NATIONAL INSURANCE CO.

Basis For Set Value: Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 641; Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, 306-309; Civil Code Section 1431.2(b)(1).

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

INTRODUCTION
Under California Law, the most a personal injury plaintiff can recover for medical services is the amount that has been paid or incurred for those services, even if that amount is less than the market rate. Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 641; Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, 306-309. Defendants Brenda White and Donna White hereby move this Court for an order setting the reasonable value of medical services for plaintiff’s medical providers to that which National Insur. Co. paid the providers on behalf of plaintiff Randall Brown due to his coverage through County Medical Services Program (CMSP), which coverage is facilitated by National Insur. Co. CMSP provides low-income indigent adults with health insurance in thirty-four rural counties in California.

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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 personal injury case and its proceedings.)

The Elder Abuse Act provides for enhanced remedies including attorneys’ fees and recovery for pain and suffering surviving the death of an elder upon a showing that a defendant has engaged in the reckless neglect or abuse of an elder. Cal. Welf. & Instit. Code § 15657. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Under the Elder Abuse Act, “abuse” is defined as 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 or (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. Cal. Welf. & Inst Code § 15610.07 (emphasis supplied). Neglectful elder abuse is the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Covenant Care, Inc. v. Superior Court, 32 Cal. 4th 771, 785 (2004) internal citations and quotations omitted) (emphasis in original). The Elder Abuse Act defines neglect as, among other things, the:

(1) Failure of a health care provider to assist in personal hygiene, or in the provision of food, clothing, and shelter; or
(2) Failure to provide medical care for physical and mental health needs; or
(3) Failure to protect from health and safety hazards; or
(4) Failure to prevent malnutrition or dehydration.
Cal. Welf. & Institutions Code § 15610.57.

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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.)

James Smith remained in the Medical Center from February 19 through February 24, 2008. At that time Dr. Martinez ordered that he be discharged to a nursing home (Valley Healthcare Center – not a party) for rehabilitation. At the Valley Healthcare Center, James Smith was evaluated by neurologist (Dr. Greene – not a party). He noted in his consultation report that James Smith was complaining of dull aching pain, deep in the frontal sinus area but no other neurological symptoms. Dr. Greene specifically noted that he was mentally alert and oriented with no definite focal motor weakness. He ordered an MRI of the brain. James Smith was discharged from the Valley Healthcare Center on April 1, 2008.

Mr. Smith was eventually admitted to the Medical Center in May 2009. On or about May 19, 2009 he underwent surgery on his cervical spine. The surgery had to be terminated due to pulmonary/cardiac issues. He was returned to surgery on or about May 26, 2009 and underwent cervical spine surgery. Mr. Smith was discharged from the Medical Center to a skilled nursing facility on or about June 4, 2009. He remained at that skilled nursing, with a few temporary transfers to hospitals for inpatient care, until his death on June 23, 2009.

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, 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.)

“Neglect” does not include acts of traditional professional negligence, but refers to forms of egregious neglect performed with some state of culpability greater than mere negligence. The subjective culpability for a neglect allegation under the Elder Abuse Act requires specific facts showing recklessness, malice, oppression or fraud by a specific caregiver Covenant Care, supra at 781-790; Delaney, supra at 33-35; Welfare & Institutions Code §15657; CACI 3105. Under Civil Code §329(c), “malice” is “conduct which is intended … to cause injury … or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”

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

Malice denotes ill-will, or a desire to do harm for the mere satisfaction of doing it. Ehaugh v Rabin (1972) 22 Cal.App.3d 891, 895. “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights,” and “fraud” is defined as “an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention … of… causing injury.” As a component element of malice and oppression, despicable conduct means conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people, Tomaselli v TransAmerica Insurance Co (1994) 25 Cal.App.4th 1269, 1287.

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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.)

MOTION FOR JUDGMENT ON THE PLEADINGS IS TIMELY AND PROPER

A motion for judgment on the pleadings may be made at any time, even after the time for demur or answer to the complaint. Ion Equipment Company v. Nelson (1981) 110 Cal.App.3d 868, 168. A motion for judgment on the pleadings may be made on the ground that the opposing pleading fails to state facts sufficient to constitute a cause of action. Colberg v. California (1971) 67 Cal.2d 408, 412. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A motion for judgment on the pleadings has the same function as a general demur, but is made after the time for the demur has expired. Except as provided by statute, the rules governing demur apply. Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2005) §7:275; Lance Camper Mfg. Corp. v. Republic Indem. Co. of America (1996) 44 Cal.App.4th 194, 198. The motion for judgment of the pleadings can assert statutory grounds, such as C.C.P. §438(B)(ii) and/or non-statutory grounds. Unless the court orders otherwise the statutory motion for judgment on the pleadings cannot be made after the entry of a pretrial conference order, or 30 days before the date the action is initially set for trial, whichever is later. (C.C.P. §438(e); Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group, 2005) §7.280.

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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.)

Welfare & Institutions Code §15610 63 provides: “Physical abuse” means any of the following. (a) assault, as defined in §240 of the Penal Code, (b) battery, as defined in §242 of the Penal Code, (c) assault with a deadly weapon or force likely to produce great bodily injury, as defined in §245 of the Penal Code, (d) unreasonable physical constraint, or prolonged or continual deprivation of food or water, (e) sexual assault , (f) use of a physical or chemical restraint or psychotropic medication under any of the following conditions (1) for punishment, (2) for a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the state of California, who is providing medical care to the elder or dependent adult at the time the instructions are given, (3) for any purpose not authorized by the physician and surgeon. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Welfare & Institutions Code §15610 57 provides: (a) “neglect” means either of the following (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, (2) the negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in a like position would exercise. (b) Neglect includes, but is not limited to, all of the following (1) failure to assist in personal hygiene, or in the provision of food, clothing or shelter (2) failure to provide medical care for physical and mental health needs.

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The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. 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 car accident case and its proceedings.)

CONCLUSION

It is respectfully submitted that the plaintiff in this matter did carry her burden of proof in establishing that she suffered both economic and non-economic harm as a direct result of the automobile accident in question.

The testimony of the plaintiff was that she sought medical care and treatment immediately after this accident and was admitted to Kaiser Hospital’s emergency room where she was examined, found to have suffered a physical injury, and was administered powerful narcotics as a result of her pain and suffering. Additionally, she testified that as a result of this accident she became nauseated and was vomiting which further required medical care and treatment for a condition which was not present prior to this accident occurring. The plaintiff’s testimony as to her loss of income as a result of the off work notice given by physicians at Kaiser also demonstrated economic damage.

The court, by allowing counsel for the defendant to use exhibits over and over and over again after objections were made to their introduction constituted irregularities in the proceeding and attorney misconduct. To have allowed defendant’s counsel over objection to question witnesses concerning medical records that the witness did not author, and which the witness did not rely on in reaching opinions and conclusions for the purpose of attempting to impeach the plaintiff’s claim of certain injuries is sufficient to grant this motion for new trial. What counsel for the defendant attempted to do was to show by an absence of record, without establishing a foundation that the record even inquired or dealt with the subject matter of the personal injuries prejudiced this plaintiff and apparently influenced the jury to disregard the law with regard to causation.

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