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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.)

Although Mr. Owen acknowledges the need for surgery, his personal obligations due to his wife’s medical condition preclude him from pursuing a surgical option at this time.

In the absence of surgery, Mr. Owen is left with constant pain, numbness in his hands and fingers, and reduced range of cervical motion. This has not only reduced his ability to drive, but also his enjoyment of it. Where before the accident, he used to walk five miles each day, now, he can do a mile at most, with frequent breaks, and the attendant pain. Social activities as simple as hosting a barbecue for family and friends is now out of the question.

MEDICAL SPECIAL DAMAGES
Key Health (MRI) $1,695.00
Dr. Kate Brown D.C. $514.13
Dr. Messi M.D. $750.00
MEDICAL SPECIALS TO DATE $2,959.13
FUTURE MEDICAL SPECIALS
Two Level Cervical Fusion $80,000.00
WAGE LOSS
At the time of the accident Mr. Owen was self-employed by World Limousine Service as a driver. In that position, Mr. Owen earned $50.00 per hour, or $72,000.00 per year. As a result of the injuries which he sustained in the subject motor vehicle accident, Ms. Owen missed the eight weeks immediately after the accident. This wage loss alone is $12,000.00.

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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.)

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’S ELEVENTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Plaintiff was present in the hospital when Robert Lee was being mistreated by his doctors. As such, she is a bystander victim. Further, Plaintiff was in contact by telephone during the incident. There is clearly a duty owed by Defendant ODA to Plaintiff, as they assumed that duty when they reached out to her claiming to be ethical, concerned, professionals in the subject of organ donation. As experts in a highly specialized and professional area, organ donation, Defendant ODA owed a duty to Plaintiff to disclose what they knew about her son, and to inform Plaintiff of the facts relevant to her decision to donate organs. (See Tyler v. California Children’s Home (1994) 29 Cal.App.4th 51 1, 548 (duty of ethical principled professionals to disclose and inform). (See also Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 783-784 (homeowners relying on a brokers expertise, there was a duty to disclose various details on behalf of the broker).)

The demurrer should be overruled.

PLAINTIFF’S TWELFTH CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Plaintiff’s claim for unfair business is not about medical negligence. Plaintiff has stated sufficient facts to support a claim regarding Defendant’s business practices. Plaintiff respectfully submits that the complaint, read as a whole, makes clear that Plaintiff is alleging that Defendants are engaged in unscrupulous business practices, engaging in outright fraud and deceit in their effort to find organ donors, and supply organs to others. Plaintiff’s claim for unfair business practices is properly pled. Demurrer should be overruled.

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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.)

Summary Judgment is Improper Here Because Triable Issues of Material Fact Exist and Plaintiff Has Provided Sufficient Showing Of Severe and Pervasive Harassment and Discrimination Based on Perceived Sexual Orientation, Creed, and Affiliation With African- Americans

Even if Defendants’ evidence is deemed admissible and they are able to meet their initial burden of proof, triable issues of disputed material facts exist which preclude Defendants from successfully moving for summary judgment.

To preclude summary judgment, all the opposing party has to do is successfully introduce enough evidence to show the existence of even a single triable issue of material fact. Plaintiff has accomplished this. As Plaintiff’s Separate Statement of Undisputed and Disputed Material Facts shows, sufficient disputed facts exist to support Plaintiff’s causes of action.

Plaintiff has provided facts, and will produce further evidence at trial, showing that Defendant Green initiated an ongoing and pervasive harassment campaign against Plaintiff based on Defendant Green’s perception that Plaintiff was homosexual. Plaintiff will also demonstrate Defendant Green was biased against Plaintiff because Plaintiff is Jewish and because of Plaintiff’s affiliation with African-Americans. (See Part 6 of 7.)

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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/wrongful death case and its proceedings.)

PLAINTIFFS’ THIRTEENTH CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES STATES A CLAIM.

The Unfair Practices Act, Business & Professions Code section 17200, prohibits any unlawful business practice. (B&P Code Section 17200). By prohibiting any unlawful business practice, Section 172000 borrows’ violations of other laws and treats them as unlawful practices that the unfair practices act makes independently actionable. State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093,1103 (single quotes in the original). The Unfair Practices Act’s coverage is sweeping, embracing anything that can properly be called a business practice and that at the same time is forbidden by law. Cel-Tech Communications Inc. v. Los Angles Cellular Telephone Company (1999) 20 Cal.4th 163, 180.

In People v. Casa Blanca Convalescent Home (1984) 159 Cal.App.3d 509,530, the court held that a corporation’s practice of understaffing its nursing homes was an unfair business practice within Section 17200. Here, plaintiffs, like the plaintiffs in Casa Blanca Convalescent Home, by pleading valid causes of action for violation of the Elder Abuse and Dependent Adult Civil Protection Act, and alleging that defendants’ conduct is part of a general business practice, stated a claim for Unfair Business Practices also raised a triable issue of fact as to unfair business practices.

PLAINTIFFS REQUEST LEAVE TO AMEND WITH RESPECT TO THE FOURTEENTH CAUSES OF ACTION FOR BREACH OF CONTRACT

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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/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.

PAUL GREEN MAY NOT MAINTAIN A CAUSE OF ACTION FOR LOSS OF CONSORTIUM BASED ON ABBEY’S INJURIES

This motion does not challenge that determination, and there seems to be little question that Mr. Green would be permitted to maintain a cause of action for loss of consortium pertaining to his wife’s physical injuries.

However, Mr. Green’s loss of consortium claim reaches well beyond that, to claims for emotional distress suffered as a consequence of having to take care of Abbey. Ms. Green stated in her deposition that any negative impacts to the quality of her marriage are attributable entirely to Abbey ‘s problems as opposed her own physical injuries. Thus, it is undisputed that there are no recoverable loss of consortium damages based on Ms. Green physical injuries. This is, of course, consistent with common sense, and entirely what one would expect where the mother recovered completely within a few weeks and the child has severe and permanent injuries to her brain.

The issue before the court with respect to the fifth cause of action is whether Paul Green, under his claim for loss of consortium, is entitled to recover any damages other than those relating to his wife’s physical injuries; and the answer is no. Clearly, Mr. Green has suffered profoundly as a result of his daughter’s injuries, not only in the loss of Abbey ‘s love and affection, but also the impact of Abbey ‘s injuries on the quality of their marriage. However, this latter source of suffering is not compensable, because it does not flow directly from a compensable injury suffered by his wife, and the former is not compensable because in California there is no cause of action for loss of filial consortium.

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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.)

An MRI was taken of Mr. Owen’s cervical spine on February 21, 2006, at the Sacramento Imaging Center. This scan was interpreted as revealing:

1. Mild to moderate anterior extradural impressions at the C4-5 and C5-6 levels. At the C4-5 level this is due to a small central disc protrusion and at the C5-6 level, it appears due to a moderate broad based disc osteophyte;
2. Right sided foramina 1 narrowing at the C5-6 level due to bony hypertrophic changes;

3. The cord has a generally flattened appearance throughout the cervical spine and the AP diameter of the canal, even where the discs appear normal, is less than 9 millimeters.

Dr. Brown immediately referred Mr. Owen to Dr. Lee Messi for neuro-surgical consultation. Dr. Messi summarized his findings in a letter of July 6, 2006. Dr. Messi noted that Mr. Owen was then experiencing posterior neck pain with radiation into his right upper extremity. On examination, Dr. Messi noted weakness in Mr. Owen’s biceps and triceps muscles upon dorsiflexion of the right hand, with decreased bicipital reflex on the right when compared to the left. Dr. Messi noted that Mr. Owen’s cervical range of motion was restricted to 60% of normal. Dr. Messi reviewed the MRI scan and noted significant disc abnormalities at both C4-5 and C5-6. Dr. Messi concluded that Mr. Owen’s symptoms were consistent with radiation from a C5-6 disc abnormality.

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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/wrongful death case and its proceedings.)

PLAINTIFFS’ EIGHTH CAUSE OF ACTION FOR ELDER ABUSE WITH FRAUD STATES A CLAIM.

As discussed above, Welfare & Institutions Code Section 15657 provides for enhanced remedies under the Elder Abuse Act, where it is proven by clear and convincing evidence that a defendant … is liable for … 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 Eighth Cause of Action alleges that defendants committed neglect with fraud, based on the fraudulent misrepresentations that defendants made to induce the Brown family to place Mr. Brown at Universal Care.

The Eighth Cause of Action is pled as an alternate to the First Cause of Action for Elder Abuse -Wilful or Reckless Neglect. Defendants contend that plaintiffs cannot plead in the alternative, but they are wrong. It is well established that “a party may plead in the alternative and may make inconsistent allegations.” Adams v. Paul (1995) 11 Cal.4th 583, 593, 594, quoted in Third Eye Blind v. Near North Entertainment Ins. (2005) 127 Cal.App.4th 1311,1323. It is perfectly acceptable to file separate or duplicative causes of action arising from the same set of facts. Eichler Homes of San Mateo, Inc. v. Superior Court (1961) 55 Cal.2d 845, 916.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the residentail elder care facilities in the Sacramento area. (See Part 11 of 11.)

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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.)

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’S TENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Plaintiff alleges that Defendant ODA (a) intentionally committed fraud upon Cindy Lee in an effort to obtain her consent to harvest Ruben’s organs, and that (b) ODA did so knowing that Ruben was not an appropriate candidate for organ donation, and that (c) ODA and its employees intentionally bartered, abused and attempted to kill Robert Lee illegally in violation of all legal and ethical standards, including disconnecting him from life support without consent, and injecting him with lethal doses of drugs in an effort to hasten his death.

Defendant states that Plaintiff has failed to show any extreme or outrageous conduct on the part of Defendants

Defendant’s argument lacks merit. According to Defendant, intentional fraud, devious failure to inform Cindy Lee of her son’s prognosis and unsuitability for organ donation, illegal and intentional disconnection from life support and injection with lethal doses of drugs is not extreme and outrageous.

Plaintiff specifically alleges that ODA did these things, and that they directly lied to her in a fraudulent effort to gain her consent. Clearly, the conduct was directed at Plaintiff, as well as her deceased son Ruben.

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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/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.

The Court raised a question regarding circumstantial evidence that something had been done wrong, namely the birth of a blue baby, which was precisely the issue confronted by the Hurlbut and Justus courts. However, the law is clear that circumstantial evidence is not enough: evidence of severe injury from an overdose of radiation (Golstein), a baby born dead (Justus), a child who deteriorates in the hospital (Jansen), a brain injury during labor and delivery (Hurlbut), a child covered with blood with a doctor leaning over him (Breazeal), or a severed artery during surgery (Bird), all amount to circumstantial evidence of negligence, and circumstantial evidence of a connection between the observed negligence and the injury.

However, as the courts correctly found in each one of these cases, such evidence is still not enough. Under Ochoa, and every factually apposite case to come down since then, there must be an observed connection between the accident and the resulting injury, a witnessing, with knowing comprehension. Thus, observing a baby born blue, or worse, even after observing concerning events during labor, is not enough, and the unbroken line of cases before us, including Ochoa, so hold.

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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.)

At deposition, Defendant also remembered telling the police what lane she was in. However, Mr. Owen distinctly remembers hearing Defendant tell the investigating officer at the scene that she had turned left “from the second lane,” which would be a lane for through traffic. Mr. Owen remembers the officer repeating the question two or three times, and getting the same response each time.

Defendant has the burden of proof with respect to her allegations and her Affirmative Defenses, and Defendant’s recall of events during her deposition make it impossible for her to prove: 1) that Plaintiff did anything whatsoever to cause the accident and/or 2) that she was proceeding cautiously in making her ill fated attempt at a left turn across oncoming traffic.

The accident was clearly caused by the negligence of Ms. White in either of two ways:

1. She jumped the red arrow for the left turn and attempted to squeeze between the gap in oncoming traffic in front of Mr. Owen.

2. She made the turn from the lane next to the left turn lane, having the green and seeing that same gap in traffic.

Ms. White therefore either ran the red arrow or made an illegal left turn. In either case she failed to lawfully yield to oncoming traffic in the intersection. Plaintiff has the burden of proving that the accident was caused by Defendant’s failure to exercise reasonable and due care while making a left turn. Failing to make certain that the intersection was clear before turning left it was the negligence of Defendant in either version.

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