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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/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.

Ochoa v. Superior Court Discusion

Ochoa v. Superior Court, supra, 39 Cal.3d 159, the case relied on most heavily by plaintiffs at the pleading stage, involved a 13-year-old boy who died in the infirmary of a juvenile hall after repeated requests by his mother to provide care were refused. Recovery by the mother for negligent infliction of emotional distress was allowed, but only because she specifically observed the withholding of care and observed its effect on her son. The rule announced in Ochoa was where there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted. (39 Cal.3d at page 170.) In other words, for a parent to recover for NIED under Ochoa, they have to witness, with knowing comprehension, the causal connection between accident and injury. (See, Golstein v. Superior Court, supra, 223 Cal.App.3d at 1424-1425.)

There was a great deal of discussion regarding whether a plaintiff has to possess a certain level of medical sophistication in order to satisfy the contemporaneous awareness requirement of Ochoa. Although there is some reference to this in the case law, in our case that discussion really misses the point: It doesn’t matter whether Paul Green was a doctor or not, just as it didn’t matter whether Ms. Ochoa was a doctor or not; what matters is whether he made the connection between what he observed and injury to his daughter at the time. The undisputed evidence establishes that he did not, and so he cannot recover.

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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 DRASTIC AND SHOULD BE USED WITH CAUTION

The summary judgment procedure is a drastic measure depriving the losing party of a trial on the merits and may not be granted (in this workplace harassment case) unless it is clear from the affidavits or the declarations filed in connection with the motion that there are no triable issues of fact. Rawlings v. D.M. Oliver Inc. (1979) 97 Cal. App. 3d 809, 895. The court need not look at the counter-affidavits or counter-declarations unless the moving party’s declaration, standing alone, but considered in light of the pleading, would support the summary judgment motion. Id. at 896. In all cases, any doubts as to whether summary judgment is proper should be resolved against the moving party. Id. at 896.

In examining the sufficiency of the affidavits, the moving party’s affidavits are strictly construed and those of the opposing party are liberally construed. Corwin v. Los Angeles Newspaper Service Bureau. Inc. (1971) 4 Cal. 3d 842, 851, 852. In Corwin, supra at 852, the Court noted that summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.

LEGAL ARGUMENT
Defendants Have Failed to Meet Their Evidentiary Burden
California Code of Civil Procedure §437c states, in relevant part, as follows:
Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit… (o) A defendant … has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists to that cause of action or a defense thereto.

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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 Third Cause of Action for Negligence Per Se (Violation of Elder Abuse and Dependant Adult Civil Protection Act, hereinafter, “EADACPA”) is Properly Pled

Plaintiff’s third cause of action is not solely a negligence per se claim. While the third cause of action refers to EADACPA as a basis for a negligence per se claim, the cause of action itself is titled as a “Violation” of that act. The third cause of action is not duplicative of anything. It is a stand alone cause of action for Abuse of an Adult Dependent.

Defendant’s demurrer on grounds that the complaint contains allegations of intentional conduct and negligence on the same facts wholly lacks merit In general, a plaintiff is entitled to plead alternative theories and even inconsistent allegations. (See Adams v. Paul (1995) 11 Cal.4th 583, 593.)

Plaintiff’s Fourth Cause of Action for Negligence Per Se (Prescription of Controlled Substance Without Legitimate Medical Purpose) and Fifth Cause of Action for Negligence Per Se (Violation of Uniform Anatomical Gift Act)

Defendant’s demurrer to the fourth and fifth causes of action should be overruled. It is clear from the complaint that these statutes are two separate statutory basis for negligence per se claims. They are not duplicative. Duty, breach, causation and damages are all pled, as well as the statutory grounds for negligence per se claims. In general, a plaintiff is entitled to plead alternative theories and even inconsistent allegations. (See Adams v. Paul (1995) 11 Cal.4th 583, 593.)

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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.)

Here, Dani O’Brien made complaints prior to April 2006 regarding medication errors affecting her mother’s medications. This put defendants on notice of problems with the administration of medication. Yet, defendants did not correct the medication problems, which persisted with errors with Mr. Brown’s medications late in 2006, (missed Procrit injections, missed doses of other medications), ultimately resulting in Universal Care’s overdosing him with Olanzapine (Zyprexa), thereby causing him pain, suffering, and death).

Universal Care also failed to take precautions to prevent Mr. Brown from falling, after being on notice in the admission process that he was at a high risk for falls. They also failed to change their fall prevention protocol for him after he had actual falls in the facility, resulting in his further falls.

These allegations are more than sufficient to allege conscious disregard of Mr. Brown’s welfare under Intrieri.

PLAINTIFFS’ THIRD CAUSE OF ACTION STATES CLAIMS FOR WRONGFUL DEATH.

Defendants mistakenly contend that plaintiffs have not alleged facts showing that defendants negligently caused Mr. Brown’s death. Paragraph 140 states that the autopsy shows a toxic level of Olanzapine in Mr. Brown’s blood stream. Paragraph 141 states that Universal Care provide[d] Steven excess dosing of Olanzapine, directly resulting in pain, suffering, and death on October 7,2006. Of course, these allegations state that Universal Care overdosed Mr. Brown on Olanzapine. These allegations sufficiently state a cause of action for wrongful death.

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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 auto accident case and its proceedings.)

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.

WAGE LOSS CLAIM

Plaintiff was employed as a sales associate for Macy’s at the time the car accident occurred. She was also a student at Community College.

Plaintiff testified that her income at Macy’s decreased after the accident because she worked fewer hours and could not remain on her feet as long as she used to before the accident. She would have to take breaks because of her back pain.

Plaintiff had started working for Macy’s in 2004. According to a Mortgage Verification Form provided by Macy’s, the plaintiff earned the following during the four years she was employed at Macy’s:

Year Amount
2004 $ 4,117.51
2005 $ 23,221.43
2005 $ 20,557.65
2007 $ 2,707.19

Plaintiff testified that that she does not know how many days she actually may have missed from Macy’s.

Subpoenas of Macy’s records pertaining to the plaintiff have not revealed any specific attendance records.

Plaintiff testified that she stopped working for Macy’s and resigned from her position because she felt she could no longer do the job because of her injuries.

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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 Third, Fourth And Fifth Causes Of Action For Negligence Per Se Are Sufficiently Pled And Supported By Factual Allegations

Defendant’s argument in support to demurrer to the Third, Fourth and Fifth causes of action are essentially that (a) Plaintiff’s complaint is too organized, and (b) the causes of action do not specifically identify how each defendant supposedly violated the specific statutes.

Plaintiff’s effort to be clear and specific by pleading a “Negligence Per Se” cause of action for each separate and distinct statute involved is not grounds for demurrer.

California Evidence Code section 669 provides, in pertinent part, as follows:

The failure of a person to exercise due care is presumed if:
(1) He violated a statute, ordinance, or regulation of a public entity;
(2) The violation proximately caused death or injury to person or property;
(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

In an effort to specifically and clearly plead the causes of action and claims at issue in this case, Plaintiff delineated a separate and distinct cause of action for Negligence Per Se for each separate and distinct statute involved.

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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.

PLAINTIFF PAUL GREEN MAY NOT MAINTAIN A CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

As the Court is aware from the discussion of these issues at the demurrer stage, the law governing recovery for negligent infliction of emotional distress in medical malpractice cases is rich and complex, with sometimes fairly arbitrary distinctions drawn by the courts in allowing recovery to one group of plaintiffs and denying recovery to another. However, the law which has emerged is also quite clear that in order for a parent to recover for NIED in the context of medical care provided to a child, the parent must have witnessed the injury-producing event and have been aware at that time that the event was causing injury to the child. (Ochoa v. Superior Court (1985) 39 Cal.3d 159.) This is beyond dispute and the unquestioned law of the land.

After more than 30 years of refinement and explanation, we now have before us a long unbroken line of medical malpractice cases, starting with Jansen v. Childrens Hospital Medical Center, (1973) 31 Cal.App.3d 22, and culminating in Bird v. Saenz, (2002) 28 Cal.4th 910, where the courts have denied recovery to a family member who witnessed the effect of the injury-producing event, rather than the event itself. This theme has been repeated in these cases time and time again.

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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.)

The lower court granted summary judgment for defendants, finding that the facts adduced by plaintiffs amounted only to medical negligence and not “reckless neglect.” The court of appeal reversed, finding several independent bases that supported an inference of reckless neglect. Id. at 85. The nursing home’s display of the keypad number above the keypad on the door to the ward, raised a reasonable inference that the nursing home had consciously disregarded the safety of the Alzheimer patients, including Mrs. Intrieri because it provided “unfettered access” to the Alzheimer’s ward to any one who could read the code. Id. at 84.

The nursing home’s failure to take steps to prevent the belligerent resident from harming Mrs. Intrieri and other residents, knowing that he had been exhibiting bizarre behavior, also evinced reckless neglect. Id. at 84-85. The nursing home’s failure to make changes to Mrs. Intrieri’s care plan after she developed pressure ulcers, and its failure to follow a care plan for the ulcers after an outside physician set a plan of treatment for the ulcers, also supported a reasonable inference that the nursing home acted with reckless neglect in caring for Mrs. Intrieri. Id. at 85.

In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, a lawsuit had been brought against a skilled nursing facility by the family of a deceased woman, who acquired pressure ulcers at the facility, which caused her death. She had Huntington’s chorea disease, which put her at known risk for skin breakdown. Id. at 83. The facility was granted summary judgment in the lower court based on its argument that it had no liability unless it injured the dependent adult due to a total absence of care. Id. at 90. In reversing, the Court of Appeal held, We disagree.

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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 auto accident case and its proceedings.)

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.

On November 5, 2007, plaintiff returned to Dr. Wong. She reported she was doing yoga and stretches and had a personal trainer. She had stopped chiropractic treatment. She had never tried Pilates. She reported her symptoms would increase with stress. Exam revealed her scoliosis. She was tender to palpation in the lumbosacral area. Assessment was chronic low back pain with scoliosis and mild degenerative disc disease. She was advised to decrease stress. Core exercises were given.

On January 17, 2008, she was seen by Dr. Wong. She reported she still had back pain. She apparently was not doing chiropractic. She had done back exercises for a time. Assessment was lumbosacral strain/low back pain which was chronic.

Given the nature and the impact involved in this collision and also given the absolute lack of any medical treatment between February 9, 2005 and June 8, 2005, defendants contend that the only reasonable medical treatment related to this very minor auto accident would be the following:

Provider Dates Billed Paid
Doctors Valley Medical Group 2/9/06 1 treatment $ 95.00

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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 NEGLIGENCE BASED CAUSES OF ACTION ARE SUFFICIENTLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Defendant demurrers to Plaintiff’s cause of action for battery on grounds that (1) plaintiff failed to specifically identify which defendants committed the battery, and that (2) there is not one scintilla of fact or evidence that the defendant intended to cause harm to the decedent.

Plaintiff’s First Cause Of Action For Wrongful Death Is Proper

Defendant’s sole argument in support of demurrer to the first cause of action for wrongful death is that it is “duplicative.” That argument lacks merit. The cause of action for wrongful death is not duplicative simply because it involves the same facts as other causes of action.

Defendant ODA states that there is a single. statutorily created cause of action for wrongful death. (Code Civ. Proc., §377.60 et seq.) CCP section 377.60 simply enumerates those persons who may assert “a cause of action for the death of a person caused by the wrongful act or neglect of another.” That does not mean that there can only be one cause of action that somehow relates to someone’s death. Defendant’s argument has no support in fact or law.

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