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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.

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, U.C. 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 elder abuse case and its proceedings.)

The issues in each action are intertwined and incapable of being severed. A single overlapping issue is sufficient to require imposition of a stay of court proceedings pending arbitration. Id. at 1153. In Heritage, an independent practice association (“IPA”) sued a healthcare provider network (“Heritage”), two medical groups, and four individual physicians who had terminated their relationship with the IPA and entered into agreements with Heritage. Id. at 1150-1151. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The IPA alleged causes of action for (i) breach of contract against the medical groups and the physicians, (ii) inducement of breach of contract against Heritage and one of the medical groups, and (iii) improper disclosure of confidential information and trade secrets against the medical groups. Id. While the physicians successfully moved to compel arbitration of the IPA’s breach of contract claims, the trial court denied Heritage’s motion to stay the proceedings because there was not enough similar issues to stay the civil litigation while the arbitration’s pending. Id. at 1151-1152. The appellate court reversed because it found that at least one issue in the IPA’s breach of contract claim against the physicians, which was subject to arbitration, overlapped with issues in its remaining claims against Heritage, such that Heritage was entitled to a stay pending the outcome of arbitration. Id. at 1152-1153.

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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 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 Exclude Reference to 30-Year-Old Prior Felony Conviction

Defendants Victor Lee and XYZ Car Rental Of Sacramento hereby move this court, in limine, before jury selection at the trials commencement for an order instructing plaintiff, his counsel, and each and every one of plaintiffs witnesses, not to mention, interrogate on, or in any other manner convey to the jury whether during voir dire, opening statement, testimony, final argument, or otherwise, any reference to or evidence of defendant Victor Lee’s 30-year-old felony conviction. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This motion is based on the ground that the probative value on credibility of said felony conviction is outweighed by the risk of undue prejudice and that argument about or reference to or admission of such evidence regarding defendant is not relevant and should be precluded on the ground that its entry would be more prejudicial than probative.

THE TRIAL COURT POSSESSES THE INHERENT POWER TO GRANT MOTIONS IN LIMINE AND SUCH MOTIONS ARE A WELL ESTABLISHED METHOD OF EXCLUDING INADMISSIBLE EVIDENCE
Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.

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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.

It is worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. 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.)

The remainder of Ms. Smith’s pregnancy was completely uneventful. The balance of her prenatal course was normal with the patient matching fundal height with gestational age.

On December 13, 2008, Ms. Smith had an spontaneous rupture of membranes. There were no uterine contractions following the rupture of membranes. The plaintiff was advised of the risk of infection due to prolonged rupture of membranes. The plaintiff opted to go to the hospital approximately six hours after her membranes ruptured. Ms. Smith was started on Pitocin augmentation. With Pitocin augmentation, the fetal heart rate showed decreased variability. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The plaintiff was advised to have a cesarian section which she agreed to and the infant was delivered by Dr. Brown during the early morning of December 14, 2008. Following his birth, the minor plaintiff was diagnosed with hemimeganencephaly, which is an enlargement of one cerebral hemisphere. All experts are in agreement that this is a very rare congenital malformation.

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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 medical negligence case and its proceedings.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

“Recklessness” Under the Elder Abuse Act

Once neglect is satisfactorily pled, the next question become whether Plaintiff has pled factual allegations that support a claim that the alleged neglect amounted to recklessness (i.e., a conscious disregard of rights or safety), oppression, fraud, or malice, which would then entitle Plaintiffs to the heightened remedies available under the Elder Abuse Act. Defendants claim that Plaintiffs have not pled sufficient facts showing intentional conduct. (Demurrer, 6:24 – 26.) However, a showing of intentional conduct is not required to state a claim for elder abuse. The term recklessness, which can be a species or quality of negligence, is not an intentional tort. California Elder Law Litigation: An Advocate’s Guide, § 2.44. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Delaney v Baker (1999) 20 Cal.4th 23, 31, the California Supreme Court explained that recklessness under the Elder Abuse Act refers to a subjective state of culpability greater than simple negligence, which has been described as deliberate disregard of the high degree of probability that an injury will occur [citing BAJI 12.77 (defining recklessness in the context of an intentional infliction of emotional distress action)]. (See California Elder Law Litigation: An Advocate’s Guide, § 2.44.) For purposes of the Elder Abuse Act, California Civil Jury Instruction ( CACI ) 3113 has adopted that standard, stating that a defendant acts with recklessness if he or she knew it was highly probable that [his or her] conduct would cause harm and [he or she] knowingly disregarded this risk, and that recklessness is more than just the failure to use reasonable care. Id.

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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.

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, U.C. 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 elder abuse case and its proceedings.)

ARGUMENT

C.C.P. §1281.4 provides, in pertinent part, as follows:

If a court of competent jurisdiction, whether in this state or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this state, the court in which this action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specified.
[…]

If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only. C.C.P. § 1281.4. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

C.C.P. § 1281.4 is clear and unambiguous. Any party to a judicial proceeding is entitled to a stay of those proceedings whenever (1) the arbitration of a controversy has been ordered, and (2) that controversy is also an issue involved in the pending judicial action. Heritage Provider Network, Inc. v. Superior Court (2008) 158 Cal.App.4th 1146, 1152. A controversy can be a single question of law or fact, and a stay shall be issued upon proper motion if the court has ordered arbitration of a controversy that is also an issue involved in an action or proceeding pending before it. Id. It is irrelevant under the statute whether the movant is a party to the arbitration agreement. Id.

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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 personal injury case and its proceedings.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Plaintiff’s Opposition to Defendant, National Hospital’s Demurrer to First Cause of Action of First Amended Complaint and Motion to Strike Punitive Damages
INTRODUCTION

On defendant’s demurrer of the first cause of action in the complaint for elder abuse, the Court ruled that plaintiff pled recklessness with sufficient particularity to support a claim for violation of the Elder Abuse and Dependent Adult Civil Protection Act, Welfare & Institutions Code §15657 (“Elder Abuse Act”). The Court granted plaintiff leave to amend the Elder Abuse cause of action and punitive damage allegations to plead facts to meet the standards of employer ratification and the other standards of Civil Code §3294(b).

In his First Amended Complaint, Plaintiff has pled sufficient facts to meet the standards of Civil Code §3294(b) and sufficient facts of defendant’s conscious disregard of Mr. White’s health, safety and rights. Defendant’s demurrer to the first cause of action and motion to strike punitive damages, therefore, must be denied. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFF HAS PLED RATIFICATION WITH SUFFICIENT PARTICULARITY

As set forth at Welfare & Institutions Code § 15657(c), in order to recover the enhanced remedies under the Elder Abuse Act against a corporate employer, plaintiff must plead and prove:

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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.

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, U.C. 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 elder abuse case and its proceedings.)

STATEMENT OF FACTS

Plaintiff was admitted to JFK on or about September 25, 2006, for treatment of a cervical spine fracture. He was discharged from JFK on or about October 4, 2006, and transferred to JFK Hospital, Roseville. On or about October 8, 2006, he was transferred to JFK Folsom. In January 2007, he was transferred to JFK Post Acute Care Center, and was then discharged home on or about February 1, 2007.

Plaintiff claims that during his care at these various facilities, defendants failed, inter alia, to monitor his condition and to prevent the development and progression of his pressure ulcers. In connection with these events, he brings causes of action for elder abuse and negligence against JFK and JFK. For relief, he seeks general and special damages, punitive damages, and attorneys’ fees from JFK and JFK. The initial Complaint for Damages was filed on September 24, 2007. The First Amended Complaint for Damages was filed on February 20, 2008. The Second Amended Complaint was filed on May 29, 2008. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

With respect to JFK, Plaintiff was enrolled as a member of JFK Health Plan, Inc. (the “Health Plan”). The Health Plan contains an arbitration provision which requires that all of his claims against JFK be submitted to binding arbitration.

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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 medical negligence case and its proceedings.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Under the Elder Abuse Act, “Neglect” Constitutes Abuse of an Elder

The purpose Welfare and Institutions Code Section 15610.07 (which is part of the broader legislation commonly referred to as “the Elder Abuse Act” aka “EADACPA”) is essentially to protect the elderly, a particularly vulnerable portion of our society, from gross mistreatment in the form of abuse and custodial neglect. Delaney v. Baker (1999) 20 Cal.4th 23, 33. The Elder Abuse Act provides that “[a]buse of an elder” means either: (a) Physical abuse, neglect, … abandonment, … 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. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

“Neglect” is Broadly Defined in the Elder Abuse Act

The statutory definition of neglect is set forth in Section 15610.57(b) of the Elder Abuse Act, which provides that [n]eglect includes, but is not limited to, all 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; failure to protect from health and safety hazards; or (3) failure to prevent malnutrition or dehydration, (Emphasis added.)

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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.

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, U.C. 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 elder abuse case and its proceedings.)

JFK HOSPITAL’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO STAY PROCEEDINGS UNTIL ARBITRATION IS COMPLETED
INTRODUCTION

In his First Amended Complaint for Damages, Plaintiff Aaron Black sued defendant JFK Hospital (“JFK”) in connection with his pressure ulcers which were allegedly caused by the defendant’s alleged failure to provide him with adequate care and assistance beginning in the fall of 2007. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In accordance with an agreement Plaintiff made with JFK Hospital, and upon JFK’s motion, the Court ordered that Plaintiff and JFK arbitrate the matters raised in the First Amended Complaint for Damages against JFK. Since the Court’s order, Plaintiff has filed his Second Amended Complaint for Damages following the sustainment of JFK’s demurrer. Given that the matter to be arbitrated involves the same causes of action and alleged injuries (i.e., pressure ulcers) that plaintiff alleges against JFK in the Second Amended Complaint for Damages … ,

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

It is also 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, U.C. Davis Medical Center, Mercy, or Sutter.

Under the discovery rule, the statute of limitations began to run when plaintiffs suspected their injury was caused by wrongdoing. Plaintiffs, therefore, cannot take advantage of the provisions of Code of Civil Procedure §474 and relate back the Amendment of Complaint, adding Dr. Brown as a DOE defendant, back to the date of the filing of their original Complaint. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The medical records establish that plaintiffs had knowledge of Dr. Brown as well as his extensive participation in the delivery of their baby on February 21, 2001. Further, both Ms. Smith and Mr. Smith, Sr., testified that they were aware that Dr. Brown was the primary treating obstetrician who delivered their son on February 21, 2001. During her deposition, Ms. Smith testified as follows:

Q. Now, do you recall meeting a doctor by the name of Dr. Brown?
A. Yes.
Q. When is the first time you met him?
A. While I was in the delivery room.
Q. Now, when you first saw Dr. Brown, you understood that he was part of the XYZ group?
A. Yes.
Q. You understood that he was the doctor in charge at that point?

A. Yes; he told me he was.

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