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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 vehicle accident/medical malpractice case and its proceedings.)

OPPOSITION TO DEFENDANT ROBERT BLACK’S DEMURRER TO SECOND AMENDED COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This demurrer begins with what the defendant hopes will be his closing argument, moves along through a factual background section that leaves out facts of the case relevant to the demurrer, and then proceeds to act as though a demurrer was a summary judgment motion, and as though California had not gone to notice pleading a century and a half ago.

To remind defendant, since this court needs no such reminder, to survive a demurrer the pleadings need only allege those ultimate facts required to define a cause of action under California law. If the defendant believes that those asserted facts are false or cannot be proven, they are free, once discovery has been had, to file a motion for summary judgment. Once we are at the summary judgment stage, plaintiff will have to produce sufficient admissible evidence for a reasonable jury to go her way. At the demurrer stage, only legally sufficient pleading is required.

Since the pleadings explicitly list Robert Black as a defendant in the Second Cause of Action for Negligence, all that need be alleged is that Mr. Black had a duty of care running to the plaintiff, that he breached this duty, was therefore negligent, and that this breach caused harm. Once those allegations are made, no demurrer to this cause of action lies. (See Part 2 of 6.)

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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.)

Plaintiff Sean Black submits the following Memorandum of Points and Authorities in Opposition to James Lee, M.D.’s, Motion for Summary Judgment.

INTRODUCTION

Plaintiff’s complaint consists of two causes of action: one for medical malpractice, and another for failure to give informed consent. The medical malpractice arises from multiple injuries sustained during a cholecystectomy surgery on June 16, 2006. Defendant Dr. Lee filed the instant Motion for Summary Judgment, or in the Alternative for Summary Adjudication. Dr. Lee has attempted to show that he met the standard of care, was not negligent and did not cause plaintiff’s resulting injuries.

Dr. Lee filed one declaration in support of is motion, the declaration of Robert White, M.D. However, Dr. White’s declaration fails to address the issue of Dr. Lee’s duty to adequately inspect, discover and repair the source(s) of Plaintiff’s continued abdominal bleeding. As such, Dr. Lee has failed to meet his prima facie burden of proof to show the nonexistence of any triable issue of material fact. Even assuming that Dr. Lee met his initial burden, plaintiff now provides an expert declaration that supports a finding of triable issues of material facts as to the breach of the standard of care by Dr. Lee.

STATEMENT OF FACTS
On June 16, 2006, plaintiff went to the Universal Surgery Center to have his gallbladder removed, also known as a cholecystectomy. This was supposed to be a routine procedure performed by general surgeon Owen Green, M.D.; Mr. Black was to be released the same day.

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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/medical malpractice case and its proceedings.)

In Delaney the court went on to explain the difference between what could constitute professional negligence, as opposed to the type of neglect required to establish elder abuse, as follows:

This difference in focus can be clarified by considering the differing types of conduct with which section 15657 and MICRA are concerned. As discussed, section 15657 concerns “neglect,” “physical abuse,” and “fiduciary abuse.” Former section 15610.57 defines neglect as the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care which a reasonable person in a like position would exercise. Neglect includes, but is not limited to, all of the following: (a) Failure to assist in personal hygiene, or in the provision of food, clothing or shelter. (b) Failure to provide medical care for physical and mental health needs. (c) Failure to protect from health and safety hazards. (d) Failure to prevent malnutrition. Thus, neglect within the meaning of former section 15610.57 appears to cover an area of misconduct distinct from “professional negligence.”

In section 15657.2: “Neglect,” as defined in former section 15610.57 and used in section 15657, does not refer to the performance of medical services in a manner inferior to “the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing” (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal. 4th at p. 998), but rather to 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. It is instructive that the statutory definition quoted above gives as an example of neglect not negligence in the undertaking of medical services but the more fundamental [f]ailure to provide medical care for physical and mental health needs. (20 Cal.4th, at p. 34.)

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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 brain injury/automobile accident case and its proceedings.)

Ms. Smith had been referred for a neuropsychological evaluation by Dr. Green but was unable to proceed because of the lack of finances. Subsequent, arrangements were made for her to have a neuropsychological evaluation which was recently completed. She was diagnosed as suffering from adjustment disorder (with depressed and anxious mood, moderate-severe). Significantly, the extensive testing established that there were no data to suggest that the patient is feigning or amplifying her current cognitive symptom presentation. In other words, “this patient is not malingering.”

On referral from the neuropsychologist, Ms. Smith has recently been evaluated by neurologist, Robert James, M.D. Dr. James has diagnosed Ms. Smith as suffering from cerebral concussion; postconcussive syndrome; posttraumatic headaches; chronic cervical musculoligamentous strain; chronic thoracic musculoligamentous 2.5 strain; chronic lumbosacral musculoligamentous strain; bilateral lower extremity restless leg syndrome; PTSD; and post-traumatic insomnia.

Ms. Smith has also undergone an extensive work up for her ongoing traumatic brain injury symptomotology from Joan John, M.D. The bottom line from Dr. John’s report is that Dr. John has established objective documentation to correlate Ms. Smith’s symptoms with a post-concussion syndrome. Dr. John has also outlined a cognitive rehabilitation program specifically designed to correct Ms. Smith’s cognitive and emotional deficits caused by the accident. This neurocognitive rehabilitation program will take approximately one year and a half to complete with Ms. Smith anticipated to make substantial recovery following completion of this extensive program.

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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/medical malpractice case and its proceedings.)

Neglect

Welfare & Institutions Code § 15610.57 defines the term neglect in the context of elder abuse as follows:

(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. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.

(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

In Delaney v. Baker (1999) 20 Cal.4th 23, the Supreme Court addressed the difference between professional negligence and elder abuse in the context of neglect. The issue in Delaney v. Baker was whether the heightened remedies of the Elder Abuse Act could be obtained in an action against a health care provider. While the court held elder abuse could be alleged against a health care provider, the court also held the statutory framework of Welfare & Institutions Code § 15600 should not apply to situations involving mere professional negligence; the Supreme Court held something more egregious is necessary:

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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 brain injury/automobile accident case and its proceedings.)

Past Medical Expenses:

Sacramento Fire Department $ 798.00
Children’s Hospital Sacramento $ 26,430.40
University Children’s Medical Group $ 1,724.07
Doug Walters, M.D. $ 238.00
Paul Smith, M.D. $ 1,960.00
Advanced Imaging $ 85.00
TOTAL PAST MEDICAL EXPENSES $ 31,235.47

Future Special Damages:

As can be seen from the attached Life Care plan, Amanda also has a myriad of future care needs. The cost of future medical care totals approximately 2.8 million dollars to 4 million dollars in an apartment living setting, and 8 million dollars to 9.1 million dollars in a supported living environment. Additionally, Amanda’s future loss of earning capacity totals approximately $488,753 to $1.7 million dollars depending on her educational level.

Maggie Smith
Maggie was located in the front passenger seat, fully seat-belted when the collision occurred. As a result of this violent crash, she sustained a cervical fracture at C-2 and rupture of the intraspinous ligament, which required HALO immobilization. She also sustained injuries to her shoulders and knees. Maggie is currently 53 years of age and will require a lifetime of medical care involving medications, diagnostic studies and arthroscopies of both shoulders.

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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/brain 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.

In the instant action, plaintiff alleges that defendant Dr. White committed professional negligence in and around May 25, 1999, at co-defendant XYZ Hospital, by failing to timely diagnose and treat plaintiff Amy Brown respiratory difficulties, causing her to suffer further hypoxic brain injury. However, plaintiffs cannot produce any competent medical testimony to substantiate that allegation.

As stated in his declaration, Dr. White timely determined that Amy Brown’s endotracheal tube was obstructed, and re-intubated her appropriately. Further, Dr. White’s determination that Amy Brown’s ventilator was potentially malfunctioning, and subsequent replacement of said ventilator, was performed in a timely manner and appropriately. As set forth in Dr. White’s declaration, his care and treatment of plaintiff Amy Brown in no way, caused or contributed to plaintiffs’ injuries. Accordingly, if plaintiffs cannot provide expert support to substantiate their allegation that defendant actually caused their alleged injuries and damages, their action must fail.

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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.)

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.

SUMMARY OF PLAINTIFFS’ INCORRECT THEORIES OF LIABILITY

Plaintiffs’ primary theory of liability against Universal Hospital Medical Center is one of imputed liability based on an incorrectly collapsed theory of two separate and distinct tort principles: (1) Ostensible agency; and (2) Liability for subsequent negligent medical treatment.

Plaintiffs will begrudgingly admit that Dr. Brown was not an employee of Universal Hospital but they claim he was the ostensible agent of Universal Hospital Medical Center. According to plaintiff’s, Universal Hospital is therefore liable for the wrongful acts and omissions of Dr. Brown. In addition, however, plaintiff’s also take the position that because Dr. Brown’s liability for plaintiff’s’ damages is imputed to Universal Hospital under ostensible agency concepts, Universal Hospital becomes an original tortfeasor who is then also liable for the injuries allegedly incurred as a result of all subsequent negligent medical treatment.

Plaintiffs claim, in effect, that even in the absence of actual fault, Universal Hospital Medical Center becomes vicariously, vicariously liable for the injuries allegedly caused by all defendants other than Dr. Brown, too.

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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 sexual harassment/personal injury case and its proceedings.)

PLAINTIFF’S OPPOSITION TO DEMURRER
SUMMARY OF DEFENDANTS’ POSITION

Defendant S.H.P., moves the court to sustain a demurrer to each of the causes of action on the grounds that each fails to plead facts sufficient to state a cause of action, Code Civ. Proc. sec. 430.10 (e), and for reason that they believe that the complaint is uncertain, ambiguous, or unintelligible, Code Civ. Proc. sec. 430.10 (f).

The Notice of Demurrer and Demurrer of Sacramento Housing Project to Plaintiffs Third Amended Complaint for sexual harassment, dated 03/16/2007, and the Memorandum of Points and Authorities in Support of Sacramento Housing Project’s Demurrer to Plaintiffs Third Amended Complaint, dated 03/16/2007 are both unverified as to any facts therein (plaintiff accepts the case citations), therefore the plaintiff will address the grounds of the demurrer, only.

Plaintiff notes that the pleading of the Third Amended Complaint, dated February 5, 2007, was written with the aid of the source Cal. Causes of Action, James Publishing, Inc., Santa Ana, CA, 2007, on the elements and Calif. Civil Practice Guide, Weil and Brown, The Rutter Group, 2008, on declaratory relief.

FACTS OF THE CASE
The Cal. Fair Employment and Housing Act, Gov. Code sec. 12900 et seq., applies to applicants of employment equally, as to employees.

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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 brain injury/automobile accident case and its proceedings.)

Past Medical Expenses:

Sacramento City Fire Department $ 692.00
Childrens Hospital Sacramento $ 114,946.00
A. Cooper, M.D. $ 72.76
Sacramento County CCS $ 1,643.25
Freddie Segal $ 686.79
University Children’s Medical Group $ 16,566.67
TOTAL PAST MEDICAL EXPENSES: $ 134,607.40

Future Special Damages:

As can be seen from the Life Care plan, Alexa has a myriad of future care needs. The costs of such future care total approximately 10.9 million dollars to 11.7 million dollars. Additionally, Alexa will suffer 1 million dollars to 1.3 million dollars in lost earning capacity depending on her educational level.

Amanda April

Amanda was sitting in the rear driver’s side of the car. Amanda also suffered a traumatic brain injury and was diagnosed with a right transverse temporal skull fracture. She sustained loss of consciousness and amnesia. Amanda’s mental status deteriorated upon arrival via helicopter to CHS, where she was intubated. She exhibited altered mental status while at the hospital. Amanda was also diagnosed with a right clavicular fracture and a right 7th rib fracture. She was noted to have right ear hearing loss and had blood in her right ear canal.

Amanda has been diagnosed with global learning disability, language communication delay, attention deficit disorder, gross and fine motor skills disability, chronic intermittent cephalgia, and multiple additional neurocognitive deficits. (See Part 4 of 4.)

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