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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 medical malpractice case and its proceedings.)

It is worth noting that situations similar to those described in this medical negligence case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

In this case, the attached declaration of Darla King, M.D. provides competent expert testimony as to the applicable standard of care. Dr. King is a very qualified, Board Certified vascular surgeon. The expert testimony of Dr. King should be taken as conclusive as to the issues in this lawsuit. Importantly, an expert’s own declaration is sufficient to show the absence of triable issues for purposes of summary judgment, and the motion shall not be denied on the grounds of credibility if the party is otherwise entitled to summary judgment. Learner v. Superior Court (1970) 70 Cal.App.3d 656, 660, 130 Cal.Rptr. 51, 54. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Here, the only material issues raised are whether or not Dr. Brown fell below the standard of care and, if so, whether this resulted in injury. However, the undisputed facts demonstrate that Dr. Brown’s care and treatment of plaintiff, including his recommendation of a right below-the-knee amputation, was proper and correct and, therefore, at no time did Dr. Brown fall below the standard of care in the community where he practices, nor did he cause or contribute to plaintiff’s injuries. In fact, as the declaration of Dr. King illustrates, Dr. Brown’s care and treatment of plaintiff was both correct and within the standard of care required of a reasonable vascular surgeon practicing in the professional community.

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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, 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.)

When Mr. Black entered JFK on September 25, 2007, his skin assessment showed no wound or pressure ulcer. Mr. Black required turning every two hours around the clock. The nursing records disclose that that necessary intervention did not occur on multiple occasions, with periods of 3 hours, 4 hours, and 7 hours where there was no turning.

By the time Mr. Black was discharged from JFK on October 4, 2007, he had developed pressure ulcers which progressed and worsened after his discharge.

As is set forth below, the development of pressure ulcers in this paraplegic patient was not the result of an isolated episode of inadvertence by a JFK employee. Rather, this entirely preventable injury was caused by repeated episodes of neglect over a period of days by multiple employees of JFK. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In order to be entitled to enhanced remedies, plaintiff must prove that the defendant acted with recklessness, i.e. engaging in conduct while appreciating the probability that the conduct would cause harm. The First Amended Complaint sets forth facts alleging such conduct on the part of managing agents of its acute care hospital. They describe a systemic breakdown in the carrying out of well-established pressure ulcer prevention protocols by multiple caregivers over multiple days. That breakdown is alleged to have been caused by improper training, improper supervision, improper chart review, improper competency assessment and/or improper staffing levels, or a combination of these factors.

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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.

The pleading requirements for elder abuse actions was addressed in the leading treatise on elder abuse, California Elder Law Litigation: An Advocate’s Guide, § 6.40:

[t]o survive a challenge by a defendant, the plaintiff’s complaint must be pleaded with sufficient clarity to provide the defendant with clear notice of the plaintiff’s claim. The facts of the defendant’s conduct as pleaded must meet the requirements in CC § 3294.

To determine whether the facts as pleaded in an elder abuse complaint describing the defendant’s conduct satisfy the minimum statutory requirements of malice, oppression, or fraud, a Court must read the challenged allegations within the context of other facts alleged in the complaint. Even when a complaint pleads ultimate facts or conclusions of law, if it also contains specific allegations of acts attributed to the defendant showing the requisite evil motive, the complaint may survive a demurrer or motion to strike. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Accordingly, what is required by California law for a civil complaint is a statement of the facts pled with sufficient clarity so as to provide Defendant with clear notice of Plaintiffs’ elder abuse/neglect cause of action, in ordinary and concise language. Plaintiffs’ FAC clearly satisfies the above-mentioned requirements.

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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, 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.)

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.

Each of the required elements of proof to support a claim for reckless neglect of an elder is set out in the First Amended Complaint and is supported by specifically alleged facts. Those allegations together may be summarized as follows. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Aaron Talbot, an elder and dependent adult within the meaning of the Elder Abuse Statutes (W&I Code §15600 et seq.), was admitted to JFK on September 25, 2007. He was diagnosed with a cervical spine fracture. Mr. Black had pre-existing paraplegia. For this reason and because he had a neck fracture, he was at high risk for the development of pressure ulcers.

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It is worth noting that situations similar to those described in this brain 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, 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 medical malpractice case and its proceedings.)

The seminal case of Delaney v. Baker 20 Cal.App.4th 23, is cited extensively by Defendant. Unfortunately, it does not support Defendant. The decision specifically holds that medical malpractice and Elder Abuse are separate causes of action. After holding that the statute is ambiguous, the court held that if the neglect is reckless’ or done with oppression, fraud or malice, then the action falls within the scope of section 15657 and as such cannot be considered simply based on … professional negligence within the meaning of section 15657.2. Delaney, at 28. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff has pled that the failure to restrain and the failure to treat decedent in this matter was at least reckless. The pleading standard has been met, and defendants would like the court to make a factual determination that the actions were not “reckless” at the pleading stage which is an improper request. Delaney is not a case that interprets the scope of pleadings. It is a decision that interprets the scope of the statute. Delaney cannot be cited as setting forth pleading requirements as Defendant attempts in the Demurrer.

The result is relatively simple. Plaintiff is entitled to and does state a cause of action for Elder Abuse, and whether the proof presented at trial is sufficient to take the damages outside of the scope of ordinary negligence (15610.57) and into the scope of enhanced damages (15657 and 15657.2) is a separate issue. However, Plaintiffs submit that sufficient facts have been pled to meet the pleading standards as to this damage issue.

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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 worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.

The Evidence Presented by Plaintiff at Trial Constitutes “Significant Evidence.”

During the course of this trial, there was significant evidence with regard to the brain injury, and other physical injuries, suffered by Sandra White. Every medical expert, plaintiff and defense, agreed that she did indeed suffer a traumatic brain injury. Further, the testimony of plaintiff’s experts and defendant’s experts as to the extent of Ms. White’s injuries was not identical, but that is surely to be expected. The mere fact that there was contradicting expert opinion evidence does not diminish the solid value of the evidence presented. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further, plaintiffs provided significant evidence not only by way of expert opinion, but also through testimony of Ms. White’s family that was consistent with what was seen on the “sub rosa” videotape. There was no significant “contradiction,” as defendant suggests, that would be sufficient to support a granting of a JNOV. Rather, plaintiff put on substantial evidence in support of her injuries and the verdict in this case. Even defendant’s experts confirmed that Ms. White had a brain injury and multiple physical injuries as a result of this collision. Thus, this court should deny defendant’s Motion for a Judgment Notwithstanding the Verdict.

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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, 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
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 First Amended Complaint were stipulated to be true, the defendant could not argue that the plaintiff 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 defendant’s demurrer is without merit. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff Has Pleaded Facts Sufficient to State a Cause of Action for Reckless Neglect of an Elder

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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 medical malpractice case and its proceedings.)

It is worth noting that situations similar to those described in this medical negligence 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.

Plaintiff’s Complaint is Uncertain Because There Are No Facts to Support a Cause of Action for Unfair Business Practices

Business & Professions Code §17200 (aka Unfair Competition Law or UCL ) prohibits unfair competition, which includes any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with section 17500) of Part 3 of Division 7 of the Business and Professions Code. An unfair business act occurs if it offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. To plead Business & Professions Code §17200, plaintiff must state with reasonable particularity facts to support the statutory elements of the violation. Khoury v. Malv’s of California, Inc. (1993) 14 Cal.App.4th 612.

Here, plaintiff’s complaint, at page 5, sets forth a claim titled Unfair Business Practices and alleges that plaintiff’s allegations as set forth before and general allegations below constitute the facts in support of this claim. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

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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.

The California Supreme Court declared that:

Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her…[T]he limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry … So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her. (emphasis added) Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1110, 245 Cal.Rptr. 658, 751 P.2d 923 (1988).

“It is the occurrence of some such cognizable event rather than knowledge of its legal significance that starts the running of statute of limitations.” Graham v. Hansen, (1982) 128 Cal.App.3d 965, 180 Cal.Rptr. 604. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFFS FAILED TO MEET THE REQUIREMENTS OF CODE OF CIVIL PROCEDURE §474 AND, THEREFORE, THIS ACTION IS BARRED BY CCP 340.5.

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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.

DISCUSSION
The Legal Standard on Demurrer

A demurrer tests the sufficiency of the pleadings, the allegations of which must be accepted as true by the court for purposes of review. Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1231. [I]t is error for a court to sustain a demurrer where the allegations adequately state a cause of action under any legal theory. (Ibid.) The complaint in a civil action serves a variety of purposes, including to frame and limit the issues and to apprise the defendant of the basis upon which the plaintiff is seeking recovery. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In ruling on a demurrer, the trial court is required to construe the complaint liberally with a view to substantial justice between the parties. Code of Civil Procedure § 452; Cameron v. Wernick (1967) 251 Cal.App.2d 890. A demurrer will not be sustained unless the complaint, liberally construed, fails to state a claim on any theory. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.

The Legal Standard for Pleadings in Elder Abuse/Neglect Cases

The applicable code section pertaining to the pleading requirements for civil actions is Section 425.10, which provides:

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