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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.

However, central to the ruling in Burgess is the admonition that the direct victim theory of NIED does not create a new cause of action, but instead simply recognizes that an obstetrician owes a duty of care to a pregnant mother in addition to the injured baby, even if the mother suffers no harm herself. The Supreme Court stated:

We have repeatedly recognized that the negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply.

In contrast [to the bystander theory of NIED], the label direct victim arose to distinguish cases in which damages for serious emotional distress are stated as a result of a breach of duty owed the plaintiff, that is assumed by the defendant or imposed on the defendant is a matter of law, or that arises out of a relationship between the two. In these cases, the limits set forth in Thing, supra, have no direct application. Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duties, are present in a given case.

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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 State A Claim for Willlful or Reckless Neglect of An Elder By Alleging That Defendants Failed to Make Effective Changes To Their Care Plans for Fall Prevention and Medication Administration Despite Being On Notice of Falls By Mr. Brown And Errors With His Medications.

The courts have held that Title 22 regulations governing Residential Care Facilities For The Elderly establish a special relationship to use due care between a facility and its residents, and that these regulations inform the standard of care owed to a resident, upon which the resident may rely in a direct action against the facility to establish negligence per se. (See Klein v. Bia Hotel Corporation (1996) 41 Cal.App.4th 1133 (Title 22 regulations in a residential care facility establish duty of care owed to resident of facility). Section 1569.312 of Title 22 Required Universal Care to provide Mr. Brown with care and supervision, monitoring to ensure his health, safety and well-being, assistance with activities of daily living (such as walking) to meet his needs, and planned activities.

A defendant is liable for reckless or willful neglect of an elder when it fails to protect an elder from health or safety hazards by failing to implement or change a care plan that protects against such hazards. In Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, decedent was a resident of defendant’s nursing home. She was attacked by another resident who entered the Alzheimer’s ward. She fell, broke her hip, and ultimately passed away. Prior to the attack, the nursing home was aware of the danger the other resident posed, but did not take steps to protect the decedent and other vulnerable residents on the Alzheimer’s ward. The nursing home also let the decedent develop pressure ulcers on her leg, and knowing that the resident had developed pressure sores, failed to take action so that the sores wouldn’t get worse. Id. at 85.

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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 September 19, 2007, she returned to Dr. Wong. It was now over one year post-accident. She was still having chronic back issues. She was seeing a chiropractor but there was no relief. She was having pain in her legs and it felt like she walked with a limp. She would get tired easily. She was going to school full-time. She appeared to have trigger points in her neck and lumbosacral area. Assessment was chronic lumbosacral strain/pain with stress at home and she was referred for an MRI scan.

On September 25, 2007, plaintiff received an MRI scan of her lumbar spine. Impression was mild multilevel lumbar spondylosis. She had a broadbased central disc protrusion of 3mm at L5-S1. She had a disc bulge of 2-3 mm at L4-5 in combination with degenerative changes and a lateral disc bulge of 2 mm at L3-4. Finally, she had mild dextroscoliosis of the lumbar spine.

On October 11, 2007, plaintiff received an orthopedic evaluation from James White, M.D. of the California Spine Institute. She reported the car accident. She reported driving a BMW 325c and going over a speed bump when she was rear-ended by a Toyota 4-wheel drive traveling 25-30 miles per hour (this is plainly an exaggeration).

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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.)

STATEMENT OF FACTS

Plaintiff John White has been an employee of the CCD since 1992 when he was hired as head men’s basketball coach at Community College (“CC”) In 2003, Plaintiff was appointed Athletic Director at CC and presently continues to serve in that role as well as that of head men’s basketball coach. Dr. Sean Green became President of CC on August 1, 2005. On or about August 2007, Defendant Green was reassigned to another branch of the CCD and removed from the position of President of CC.

During the time that Defendant Green was President at CC its men’s basketball team was comprised entirely of African-American males. From the time that he took his position as President at CC to his abrupt departure from CC Defendant Green harassed, discriminated against and attempted to destroy, discredit and defame Plaintiff Miller. Plaintiff’s record as Athletic Director and Men’s Basketball coach was excellent. Defendant’s bias against Plaintiff was clearly unwarranted by his performance and instead was based on his false perception of Plaintiffs sexual orientation, his perception of Plaintiffs religious affiliation (Plaintiff is half Jewish), and his racist disapproval of the all African-American men’s basketball team coached by Plaintiff.

Defendant was also biased against homosexuals. And because Defendant suspected that Plaintiff was homosexual Defendant threatened him based on this rank suspicion. Defendant additionally suspected that Plaintiff was Jewish and made disparaging remarks about Jews to Plaintiff.

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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.)

Abuse of an elder or a dependent adult is defined in Section 15610.07 as “physical abuse, neglect, fiduciary abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services necessary to avoid physical harm or mental suffering.”

In Mack v. Soung (2000) 80 Cal.App.4th 966, the court explained what a plaintiff must plead under the Act to show willful misconduct under the “recklessness” prong for heightened remedies:

Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the high degree of probability that an injury will occur. Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions “but rather rises to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it.” (Id. at 972.)

In Delaney v. Baker (1999) 20 Cal.4th 23, the neglect was on the part of a skilled nursing center, where the allegations were that an elderly resident developed stage IV bedsores as a result of the facility’s rapid turn-over of nursing staff, staffing shortages, and the inadequate training of employee [s] …, and that there were violations of medical monitoring and record keeping, preventing necessary information from being transmitted to [the resident’s] personal physician on a timely basis.

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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 CAUSE OF ACTION FOR BATTERY IS SUFFICIENTLY PLED AND SUPPORTED BY THE ALLEGATIONS OF THE COMPLAINT

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.

The Complaint Clearly Alleges Battery Against All Defendants

Defendant’s demurrer to battery is first premised on the statement that plaintiff failed to specifically identify which defendants committed the battery. (Id.) Defendant’s argument fails for two reasons.

First, Defendant fails to cite any authority whatsoever to indicate that Plaintiff must “specify which Defendant” committed the acts of battery. There is no such requirement. California is a notice pleading state, and the cause of action for battery is sufficient to put Defendant ODA on notice that Plaintiff is alleging that ODA is responsible for battery.

Second, even if Plaintiff was required to specify which Defendant committed the acts of battery, the complaint does so. The complaint clearly alleges which Defendants committed the battery. The cause of action for battery is against all Defendants. The cause of action for battery specifies (a) taking Robert Lee off a respirator (b) administering a lethal dose of morphine and Ativan to him, intentionally and/or recklessly and/or in conscious disregard of his rights. Plaintiff alleges that Defendants Hill and Brown were employees and/or agents and/or representatives of Defendant ODA, and were acting on ODA’s behalf.

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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.)

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

Plaintiff Melissa Green qualifies for recovery of damages for her emotional distress under the direct victim theory, at least as to any defendants with whom she had a physician-patient relationship during labor. (See, Burgess v. Superior Court (1992) 2 Cal.4th 1064.) As the Burgess court explained, the realities of pregnancy and child birth, both physical and emotional, are such that any negligence during delivery which causes injury to the fetus and resulting in emotional anguish to mother breaches a duty directly the mother. (2 Cal.4th at 1069.) However, the physician/patient relationship that may have existed between moving defendant and Ms. Green prior to the birth of Abbey Green does not give rise to a separate cause of action, but rather is part of the negligence cause of action pleaded elsewhere in her complaint. This is done in order to give rise to two separate $250,000 MICRA caps on general damages, both in favor of Ms. Green.

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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.

Plaintiff next sought physical therapy treatment from NeuroActivity Rehab of Roseville. She received an initial evaluation on June 14, 2005 and continued to receive treatment through September 15, 2005, for a total of five treatment sessions.

A June 14, 2005, NeuroActivity Patient Intake Form indicates diagnosis was scoliosis and DOI: 2 weeks.

The NeuroActivity treatment notes document that between the initial evaluation of 6/14/06 and final treatment note of 9/27/06, there were six “no shows” and one cancellation by the plaintiff.

The NeuroActivity June 14, 2005 evaluation indicates diagnosis was scoliosis/lumbosacral strain. Plaintiff reported the 2/7/06 motor vehicle accident. She said three days later she felt low back pain which had gone away and then came back one month later. She had not had any x-rays. It was noted she worked in customer service at Macy’s. She would have pain while lying on her back. She was to start next week at Community. Assessment was lumbar-hip dysfunction with tight muscles.

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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.

Organ Donor Association And Its Staff Violated California Law And The UAGA
California Health and Safety Code section 7182 provides, in pertinent part, as follows:

Neither the physician making the determination of death under Section 7155.5 nor the physician making the independent confirmation shall participate in the procedures for removing or transplanting a part.

Plaintiff’s complaint further alleges that as provided by California law, transplant doctors are not to direct the treatment of potential organ donors before they are declared dead. Plaintiff alleges that Defendants, including specifically David Hill, M.D., whom Plaintiff alleges was an employee and/or agent and/or representative of Defendant ODA, “violated California law by taking part in Robert Lee’s care and treatment before his own and independent physician declared him dead.”

Defendant ODA Did Not Attempt In Good Faith To Act In Accordance With The Provisions Of The Chapter At Issue
It is clear from the allegations of Plaintiff’s complaint that Plaintiff is alleging that Defendant ODA violated numerous provisions of California law, and that ODA did not attempt in good faith to act in accordance with the provisions of the UAGA. Plaintiff alleges that ODA attempted to obtain her consent for organ donation when she was “in shock, and terribly upset.” ODA repeatedly attempted to obtain her consent, after she already told them she had to leave and could not give consent.

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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’ FIRST CAUSE OF ACTION STATES CLAIMS FOR WILFUL OR RECKLESS NEGLECT OR ABUSE OF AN ELDER

Plaintiffs State A Claim for Willful or Reckless Neglect of An Elder By Alleging That Defendants Chose To Maximize Profits By Understaffing And Underbudgeting Universal Care In Disregard Of Resident Safety and Welfare.

In 1991, the Legislature enacted anew article of the Welfare and Institutions Code (Welf. Code Section 15657 et seq.) Civil Actions for Abuse of Elderly or Dependent Adults, which provides for enhanced damages, fees, and costs recoverable in actions involving the abuse of an elderly or dependent adult. This article is part of a larger statutory framework known as the Elder Abuse and Dependent Adult Civil Protection Act (Welf & Inst C § 15600 et seq.) (“The Elder Abuse Act”). See Delaney v. Baker (1999) 20 Cal.4th 23, 33. Section 15657 provides that:

When 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 fees and costs …. (B) the limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply.

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