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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 wrongful death/elder abuse case and its proceedings.)

Plaintiffs Cannot Establish the Necessary Elements of Their Wrongful Death Cause of Action Against The, As All Treatment Was Within the Standard of Care and Did Not Cause Mr. Ryan’s Death
The essential factual elements of plaintiffs’ negligence/wrongful death claim against the The are:
1. That the staff of Universal Medical Center was negligent;
2. That Mr. Ryan was harmed (i.e, he died); and

3. That the staff negligence was a substantial factor in causing Mr. Ryan’s death. (CACI No. 500.)

Once again, for purposes of this motion only, it will be presumed that Dr. Greene was either an employee or agent of The Medical Center. In other words, plaintiff must be able to establish that the staff at The Medical Center fell below the standard of care applicable to then in treating Mr. Ryan during his emergency room visit while he was in full cardiac arrest, and that such treatment was a substantial factor in causing Mr. Ryan’s death. Notably, the complaint is entirely devoid of any allegations of negligence against any staff member at The Medical Center; rather, the complaint merely alleges that Dr. Greene did not undertake all necessary measures to revive Mr. Ryan.

Plaintiffs allege that Dr. Greene was an agent or employee of The. While this is untrue and in fact disputed by Universal, for purposes of this motion only, it will be presumed that Dr. Greene was acting it the course and scope of some agency relationship with Universal. Thus, if plaintiffs cannot establish that his treatment of Mr. Ryan was negligent, and that his negligence was a substantial factor in causing Mr. Ryan’s death, then summary adjudication as to Universal is warranted. It should be noted that Dr. Greene is not represented by counsel for Universal, and summary adjudication of the negligence/wrongful death cause of action is not sought as to Dr. Greene via this motion.

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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.)

Elder Abuse Remedies

The remedies available for elder abuse claims are listed in Welfare & Institutions Code § 15657, which states:

Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:

(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.

(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.

As set forth in the statute, plaintiff’s burden of proof in seeking heightened remedies under the Elder Abuse Act is that of clear and convincing evidence. This burden of proof applies to liability, and causation. In Perlin v. Fountain View Management (2008) 163 Cal.App.4th 657, 664 the court said:

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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 brain injury/medical malpractice 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.

PLAINTIFF MUST PRESENT AFFIDAVITS OR DECLARATIONS OF COMPETENT EXPERTS TO AVOID THE GRANTING OF THIS MOTION

In a medical malpractice action, the plaintiff must present expert testimony to establish the necessary elements of his or her case; that is, that the defendant’s act or omission fell below the applicable standard of practice, and that this substandard care caused the plaintiff injury. Folk v. Kilt (1975) 53 Cal.App.3d at 176 [126 Cal.Rptr. 172]. Accordingly, plaintiff must come forward with admissible evidence, by a competent qualified physician, that the care and treatment rendered by the moving defendant fell below the applicable standard of care and actually caused plaintiff’s injuries and damages. (Folk, supra, at page 176.) Absent such evidence, there is no triable issue as to any material fact.

THE CARE RENDERED BY DEFENDANT IN NO WAY CAUSED OR CONTRIBUTED TO THE INJURIES COMPLAINED OF BY PLAINTIFF
In addition to proving that the defendant fell below the standard of care, to prevail on any medical negligence claimed, the plaintiff must demonstrate that the defendant’s malpractice caused injury to the plaintiff. Bolen v. Woo (1979) 96 Cal.App.3d 944, 953.

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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 wrongful death/elder abuse case and its proceedings.)

Once defendant has shown in its moving papers that a valid defense to the action exists or that one or more elements of a cause of action (such as elder abuse), even if not separately pleaded, cannot be established, defendant has met its initial burden of showing that the cause of action has no merit. (Code of Civ. Proc. §437c(p)(2).) Once the defendant has met that initial burden, the burden then shifts to plaintiffs who must then show that a triable issue of one or more material facts exists as to each element of that cause of action. (Code of Civ. Proc. §437c(p)(2).) However, this burden which plaintiffs must satisfy is quite stringent.

Plaintiffs must set forth specific facts which prove the existence of a triable issue of material fact relative to the clements of the cause of action. (Code of Civ. Proc. §437c(p)(2); Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Mere allegations or denials of the pleadings, or factually devoid responses to discovery, are simply not sufficient to demonstrate that a triable issue of material fact exists. (Code of Civ. Proc. §437c(p)(2); Lopez, supra at 1014; Saelzler, supra at 767; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583-84.) If plaintiffs fail to satisfy this burden, judgment in favor of the moving defendants shall be granted as a matter of law. (Code of Civ. Proc. §437c(c).)

Less well known is that plaintiffs opposing a motion for summary adjudication must actually go well beyond merely raising a nominal issue of fact. Plaintiff must produce evidence which is legally sufficient to satisfy the applicable evidentiary standard of proof they will ultimately bear at trial, such as preponderance of the evidence. (Leslie G. v. Perry & Associates (1996) 43 Cal.4th 472, 487.)

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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.)

CAUSATION MUST BE PROVEN TO A REASONABLE MEDICAL PROBABILITY

One of the essential elements of plaintiff’s claim is causation. Assuming She is able to meet his burden of proving there was a breach of the standard of care, or elder abuse, she must then show any such breach was a cause of his injuries. As the court said in Budd v. Nixen (1971) 6 Cal.3d 195,200:

If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm–not yet realized–does not suffice to create a cause of action for negligence.

In the context of a personal injury action, causation must be proven within a reasonable medical probability. The reason for this was explained by the court in Brown v. Ortho Pharmaceutical Corp. (1985) 163 C.A.3d 396, 402-403:

The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [citations omitted] That there is a distinction between a reasonable medical “probability” and a medical “possibility” needs little discussion. There can be many possible “causes,” indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.

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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.)

Just before the collision, Black was traveling at a minimum of 58 miles per hour in a 35-miles-per- hour zone. By the time Martinez saw and appreciated the speed of the truck, she had already committed to her left turn. At the last moment, Black applied his brakes to no avail, and smashed into the rear passenger side quarter panel of the small Audi that Martinez was driving. The collision was violent, causing the Audi to spin counterclockwise. The truck drove up onto the sidewalk on the west side of Mission, knocking over both a fire hydrant and a palm tree.

Black was cited by for violating section 22350 of the Vehicle Code (speeding) and paid a fine.

Mr. Black was acting in the course and scope of his employment for his employer, Automotive Group, which is liable under the theory of respondent superior.

DAMAGES
Alexa Martinez
Alexa was sitting in the rear passenger position at the time of impact, and she suffered the full force of the direct hit by the defendants’ truck. As a result, Alexa sustained extensive facial and skull fractures, lacerations, hematomas and contusions. She was diagnosed with subarachnoid, intraventricular and intracerebral hemorrhages and contusions, respiratory failure requiring intubation, and she was bleeding from her right ear. She was unconscious and nonresponsive at the scene.

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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.

EXPERT TESTIMONY IS ESSENTIAL TO DETERMINE LIABILITY IN A MEDICAL MALPRACTICE ACTION

In a medical malpractice action, the requisite standard of care is determined by the applicable standard of care then existing in the particular professional community. Barton v. Owen (1977) 71 Cal.App.3d 484, 139 Cal.Rptr. 494. In Linderos v. Flood (1976) 170 Cal.3d 399, 551 P.2d 389, 131 Cal.Rptr. 69, the Supreme Court determined that the standard of care against which the acts of physicians are measured is a matter within the knowledge of experts and can only be proven by their testimony. The rationale for requiring expert testimony in medical malpractice actions was succinctly stated by the court in Barton:

In most instances there is a need for expert testimony on the subject of just what constitutes medical negligence, because the average judge or juror does not possess the necessary level of knowledge about medical malpractice to decide on its own whether the doctor was negligent. Barton at 494, 139 Cal.Rptr. at 499.

The role of expert testimony in a medical malpractice action was explained in Willard v. Hagenmeister (1981) 121 Cal.App.3d 406, 175 Cal.Rptr. 365. In Willard, the court was called upon to review the granting of a summary judgment motion in favor of the defendant dentist, where defendants secured declarations of experts to support his motion for summary judgment. In describing the weight to be given such expert testimony, the court stated:

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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 workplace harassment/personal injury case and its proceedings.)

Showing the Defendants’ intent and motive is difficult. All courts have recognized that the question facing triers of fact in discrimination cases is both sensitive and difficult. There will seldom be eyewitness testimony as to the employer’s mental process U.S. Postal Service Bd. Of Govs. v. Aikens (1983) 460 U.S. 711, 716. Much of the time the employer’s intent must be extracted through a complicated process of panning and sifting. O’Mary v. Mitsubishi Electronics America (1997) 59 Cal.App. 3th 576,575. Plaintiff has provided sufficient disputed facts to warrant an analysis of his claims at trial.

The objective severity of harassment should be judged from the perspective of a reasonable person in the Plaintiffs position, considering all the circumstances. In harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. Oncale v. Sundowner Offshore Services, Inc. (1998) 118 S.Ct. 998, 1003. The total circumstances of Plaintiffs work environment as shown by the facts and evidence presented could clearly be considered by a reasonable person to constitute severe and pervasive harassing conduct. Proof of discriminatory intent may be direct, circumstantial, or may be inferred from statistical evidence. All evidence that a plaintiff presents can contribute to this inference, and should therefore be considered as cumulative. Stender v. Lucky Stores (N.D. Cal. 1992) 803 F. Supp. 259, 319.

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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 wrongful death/elder abuse case and its proceedings.)

LAW AND ARGUMENT
Applicable Standards for Granting Summary Adjudication

The complaint frames the issues to be determined on summary judgment. (Varni Bros. Corp. v. Wine World, Inc. ( 995) 35 Cal. App. 4th 880, 887, ) When no triable issue of material fact exists, the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (f)(2).) Hence, a motion for summary adjudication should be granted in a personal injury case such as this if all the papers submitted show there is no triable issue as to any material fact with respect to the elements of the causes of action sought to be adjudicated. (Id., at subd. (f).) Summary adjudication must be granted if it disposes of a cause of action. (Ibid.)

A cause of action has no merit, and is therefore subject to summary adjudication, where “one or more of the elements of the cause of action cannot he separately established, even if that element is separately pleaded.” (Id., § 437c, subd. (n)(1).) Accordingly, summary adjudication is appropriate if any element of the challenged cause of action cannot be established.

California law also recognizes the appropriateness of summary adjudication … even if there are disputed factual issues, when the defendant’s showing negates an essential element of the plaintiff’s case. In this regard, “no amount of factual conflict upon other aspects of the case will preclude summary judgment.” (Shivley v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627.) The court is required to consider all the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence. (Code Civ. Proc. § 437c, subd. (c).)

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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.)

NATURE AND EXTENT OF PLAINTIFF’S DAMAGES
SUMMARY OF PLAINTIFF’S MEDICAL TREATMENT

Ms. Smith sought treatment with Lee Family Chiropractic on October 11, 2006. She reported that she could not stop crying since the accident. She was also complaining of left neck pain and stiffness, left shoulder pain, left lower back pain, knee pain, nervousness, irritability, depression, and was feeling weird. She also had bruises along both hips from the lap belt as well as bruises on her right knee and nose from the air bag deploying. Dr. Lee evaluated Ms. Smith and diagnosed her as suffering from a cervical spine sprain/strain; lumbar spine sprain/strain; sacroiliac sprain/strain; left shoulder sprain/strain; and knee sprain/strain.

Dr. Lee treated Ms. Smith on a regular basis through February 8, 2007, and discharged her with the expectation that she would have continued care. She has in fact continued to see Dr. Lee since her discharge.

Ms. Smith also sought medical attention from neurologist, Donna Green, M.D. She was first seen by Dr. Green on May 14, 2007. Ms. Smith reported that she had ongoing and progressive depressive symptoms. She also was unable to multitask. She also continued to have some neck discomfort as well as headaches.

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