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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/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

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:

Katy Smith, an elder and dependent adult within the meaning of the Elder Abuse Statutes (W&I Code §15600 et seq.), was admitted to Nationwide Hospital on September 25, 2007. She was diagnosed with a cervical spine fracture. Ms. Smith had pre-existing paraplegia. For this reason and because she had a neck fracture, she was at high risk for the development of pressure ulcers.

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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 trip and fall/personal injury case and its proceedings.)

Notice of the Defect by the Property Owner or the Type of Property the Sidewalk Defect is Located Plays No Role in Determining Triviality.

In trivial defect doctrine cases it has sometimes been argued that because an individual or entity had notice of the defect’s existence, such notice is a factor which can impose liability despite a defect otherwise being classified as trivial. Courts have uniformly rejected this argument. In Caloroso, the court said “minor defects … [in sidewalks] inevitably occur, and the continued existence of such cracks without warning or repair is not unreasonable.” Thus [the defendant] is not liable for this accident irrespective of the question whether he had notice of the condition. Caloroso v. Hathaway, 122 Cal. App. 4th 922, 927. (Also see: Barrett v. City of Claremont, 41 Cal. 2d 70, 73).

Notice of a defect does not somehow make a defect less trivial. Additionally, notice has never been included as an aggravating factor or a factor that is viewed as part of the totality of circumstances surrounding a defect in any of the leading sidewalk defect cases.

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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 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/personal injury case and its proceedings.)

We are, of course, aware of what has been termed a “crisis” in the availability and costs of medical malpractice insurance. Available information indicates that this crisis has affected obstetricians keenly. Such adverse effects have been documented specifically in California. In light of these observations, we realize the imposition of liability in cases such as the one at hand may impose certain societal costs. For several reasons, however, we believe that the impact of our decision recognizing Burgess’s claim against Gupta for damages for emotional distress will not unduly burden the community or health care providers in the field of obstetrics or result in the imposition of damages disproportionate to fault.

First, our Legislature has taken action to alleviate the “crisis” in medical malpractice liability and insurance by enacting the Medical Injury Compensation Reform Act of 1975 … (hereafter MICRA). As a result of MICRA, the amount of noneconomic damages, such as damages for emotional distress, that may be recovered in an action arising from the professional negligence of a health provider is capped at $250,000. (Civ. Code, § 3333.2.) For more information you are welcome to contact Sacramento 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 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/personal injury case and its proceedings.)

On or about June 19, 2006, plaintiff experienced respiratory distress and underwent a CT pulmonary angiogram which revealed a large right pulmonary arterial embolus. An IVC filter was placed by radiologist Dr. Rich without complications.

On June 24, 2006, plaintiff experienced a profound drop in blood pressure and bright red blood was noted to be coming from his NG tube. He continued to have trouble breathing and a code blue was called. Advanced cardiac life support was started and plaintiff was transfused with fresh-frozen plasma. Dr. Lee was doing rounds of the ICU unit and noted plaintiff was actively bleeding and in shock with critical blood pressure. Dr. Lee placed resuscitation lines in plaintiff’s groin, at his bedside. Specifically, he placed a femur arterial line to allow for monitoring of blood pressure, and a femoral venous line to allow for rapid blood infusion.

Gastroenterologist Dr. Sandrina Ward was called to see plaintiff emergently and conducted an upper endoscopy in an attempt to locate the bleeding source. The endoscopy revealed large amounts of clot within the stomach and duodenum, however, no obvious ulcers or source of bleeding could be found. Plaintiff was then taken to the operating room for an exploratory surgery. The surgery was performed by Dr. Green with the assistance of Dr. Lee. It was discovered that plaintiff had a large hemoperitoneum, the majority of which comprised an old clot in the mid portion of his abdomen and pelvis.

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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 malpractice/personal injury case and its proceedings.)

There appears to be no federal common law on the issue of when a contractual waiver of a jury trial will be considered to be knowing and voluntary. At least none is cited by the defendants. In the absence of such federal common law, the law of the state in which the contract arose is to be applied under the foregoing principles.

California law has traditionally required those seeking to enforce the waiver of a fundamental right to meet strict criteria. Waiver requires a voluntary act, knowingly done, with sufficient awareness of the relevant circumstances and likely consequences. There must be actual or constructive knowledge of the existence of the right to which the person is entitled. The burden is on the party claiming a waiver to prove it by evidence that does not leave the matter doubtful or uncertain and the burden must be satisfied by clear and convincing evidence that does not leave the matter to speculation. In Re: Marriage of Moore (1980) 113 Cal.App. 3rd 22, 27.

Such a burden should not be placed on a plaintiff pursuing his or her rights in a personal injury case in the state of California.

Defendants seem to argue that some unidentified law, other than California’s, allows a waiver of an important constitutional right such as a jury trial even if the person against whom the waiver is sought to be enforced did not waive that right knowingly or willingly. It is difficult to imagine that any body of law supports such a position. To simply argue, as Universal Plan does, that federal law favors arbitration begs the question. That question is: Where is there any evidence of a literal and knowing waiver and what body of law will impose a waiver where there is an absence of such evidence?

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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/personal injury case and its proceedings.)

Moreover, the Notice of Independent Medical Examination of plaintiff expressly states: Further, the scope of said examination shall include and require a history to be given by plaintiff, as well as possible X-rays and any and all clinical and laboratory tests as required by the examining physician. Such X-rays are necessary in light of plaintiff’s alleged orthopedic injuries and claim of post-trauma arthritis.

This is clearly improper and grounds for objection. As stated by Weil & Brown, supra, Questioning plaintiff regarding medical history? The statute mentions only a physical examination. Nothing is said about the right to question the plaintiff regarding his or her injuries or prior medical history. Id., § 8:1520. Other demands are improper (e.g., demands for a complete medical history). Plaintiff may object and refuse compliance. Id., § 8:1529.

As for X-rays, Weil & Brown is again instructive:

Limit on X-rays: The Discovery Act reflects public concern regarding excessive exposure to X-rays. It allows an examinee to avoid submitting to X-ray examination by giving the examiner access to existing X-rays of the same portion of the examinee’s body. In such event, no additional X-rays may be taken without the examinee’s consent or on court order for good cause shown. [Ca Civ Pro § 2032.520]. Id., § 8:1580.

Finally, one of the terms by which Plaintiff agreed to submit to the defense medical examination was that Plaintiff’s counsel receives a copy of the report, including any record review, within five days of the Defendants’ receipt of said documents. Defendants’ counsel would not agree to provide a copy of any record review, but merely with a copy of the “IME report.” This is clearly improper, as the plaintiff is entitled to receive a copy of the full report. CCP § 2032.610.

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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 malpractice/birth injury case and its proceedings.)

THE JURY IS REQUIRED TO APPORTION FAULT AMONG THE UNIVERSE OF TORTFEASORS

Since the late 1970’s California adopted a comparative fault system for tort liability whereby plaintiff’s recovery in damages can be reduced in proportion to plaintiff’s fault for the injury and defendants became jointly and severally liable for plaintiff’s injury. (Wimberly v. Derby Cycle Corporation (1997) 56 Cal.App.4th 618, 625.) But these comparative fault principles allowed for defendants with virtually no share of fault with the obligation to pay the lion’s share of plaintiff’s damages. (Id. at p. 626.)

In 1986, Proposition 51 was passed by the voters and, as a result, Civil Code section 1431.2 now provides that each defendant shall be liable only for the amount of plaintiff’s “non-economic damages” allocated to that defendant in direct proportion to that defendant’s percentage of fault. (Civ. Code, § 1431.2.)

Since the passage of Proposition 51, there are a few instances where the courts will not apply Proposition 51 to apportion liability among the defendants to reduce a defendant’s liability to plaintiff using comparative fault principles. For example, where there is true vicarious liability between an admitted employer and an employee, the courts will not apply Proposition 51 to reduce the employer’s liability to plaintiff for the employee’s wrongful conduct. (Miller v. Stouffer (1992) 9 Cal.App.4th 70, 84.) The same is true in the permissive user/vehicle owner context. (Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847.)

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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/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

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 court’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 of elder abuse 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.

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

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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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 trip and fall/personal injury case and its proceedings.)

ARGUMENT

The Sidewalk Differential Should Be Classified As A Trivial Defect As A Matter Of Law.

It is well established that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect on property. Courts have referred to this simple principle as the trivial defect defense. Caloroso v. Hathaway, 122 Cal. App. 4th 922, 927 (2004); citing: Whiting v. City of National City, 9 Cal. 2d 163 (1937).

In Ursino v. Big Boy Restaurants, 192 Cal. App. 3d 394, 397 (1987), the court stated that the trivial defect defense could be asserted by both governmental and nongovernmental defendants alike because it is impossible to maintain heavily traveled surfaces in a perfect condition … minor defects … are bound to occur in spite of the exercise of reasonable care by the party having the duty of maintaining the area involved. (Citing: Graves v. Roman, 113 Cal. App. 2d 584, 586-587 (1952)).

The trivial defect defense is not an affirmative defense but instead is an aspect of duty that a plaintiff must overcome. Caloroso, 122 Cal. App. 4th 922, 927 (2004). The most important question is whether the plaintiff has shown there is a triable issue as to whether there was a dangerous condition in the walkway that the defendant had a duty to repair. 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.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

STANDARD OF REVIEW

Universal Mall moves for summary judgment pursuant to Code of Civil Procedure § 437c, which provides the statutory authority for the Court to grant this motion. This Section provides in relevant part:

(a) Any party may move for summary judgment in any action of any proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.

(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

(o) A cause of action has no merit if either of the following exists:
(A) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(B) A defendant establishes an affirmative defense to that cause or action.

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