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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case 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 personal injury case and its proceedings.)

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE
INTRODUCTION

In a dismissive 2 1/2- page document, Plaintiff ELDER FOUNDATION (“Plaintiff” or “EF”) objects to the Motion to Strike Restitution Claim filed by Defendants SunCare, LLC, et al. (“Defendants” or “SunCare”) on the grounds that the issues raised by Defendants have been ruled on by this Court and that the motion raises no new arguments with regard to Section III A (restitution not an available remedy) and B (restitution inappropriate for Medi-Cal/Medicare patients). Plaintiff, therefore, ostensibly acting in the interest of judicial economy, simply incorporates its opposition to the Covenant Care and Health Care motions previously heard by this Court and asks the Court to come to the same conclusion it did with regard to these motions.

As to Defendants’ Section III C argument that claims arising out of actions that occurred during Defendants’ bankruptcy reorganization are barred, Plaintiff asserts that because the argument is supported by a declaration, the Court must deny the motion.

Plaintiff’s blase treatment of SunCare’s motion ignores not only the additional arguments made by Defendants to support both its demurrer and the motion to strike the restitution claim, but fails to acknowledge that a declaration can be used under certain circumstances.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

THERE WAS NO AGENCY BETWEEN UMH AND DR. BROWN

Agency may be either actual or ostensible. (Civ. Code, § 2298; Vallely Investments v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th 816, 826.) Actual agency exists when the agent is really employed by the principal. (Civ. Code, § 2299.) Ostensible agency “may be implied from the facts of a particular case, and if a principal by his acts has led others to believe that he has conferred authority upon an agent, he cannot be heard to assert, as against third parties who have relied thereon in good faith, that he did not intend to confer such power…” (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 644.)

The doctrine establishing the principles of liability for the acts of an ostensible agent rests on the doctrine of estoppel [citation]. The essential elements are representations by the principal, justifiable reliance thereon by a third party, and change of position or injury resulting from such reliance [citation]. Before recovery can be had against the principal for the acts of an ostensible agent, the person dealing with an agent must do so with belief in the agent’s authority and this belief must be a reasonable one. Such belief must be generated by some act or neglect by the principal sought to be charged and the person relying on the agent’s apparent authority must not be guilty of neglect [citation]. (Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942, 960.)

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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 bus accident/brain injury case and its proceedings.)

An argument that asks jurors how much money it would take to trade places with a severely injured plaintiff is impermissible for several reasons. First, “it in effect asks each juror to become a personal partisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence.” (Cassim, supra, 33 Cal.4th at 798.) Second, it tends to denigrate the jurors’ oath to . . . render a true verdict according to the evidence. (Ibid.) Third, it can “tend to induce each juror to consider a higher figure than he otherwise might to avoid being considered self-abasing.” (Loth v. Truck-A-Way Corp., supra, 60 Cal.App.4th at p. 765.)

During closing argument in this case, plaintiff’s counsel asked the jury what amount of money it would take to convince someone, reading a newspaper advertisement, to submit voluntarily to the bus accident and injuries sustained by the plaintiff. Specifically, plaintiff’s counsel argued:
Say there is a classified ad in the newspaper that said: temporary job, sign up April the 7th and hold that job almost two years, 24 hours a day, seven days a week. . . . All you have to do: If you see a bus coming at you in the crosswalk, let it strike you, hit your head on the pavement, and then go to San Francisco — [defense counsel’s objection overruled] and then you go to San Francisco General Hospital. . . . So the ad says that after the pressure keeps rising, you just have to submit yourself to craniectomy. They go in and actually remove a part of the skull.

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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 employment discrimination/personal injury case and its proceedings.)

While working at Kaiser-Permanente, Ms. Church made frequent complaints to upper management, including officers and managing agents such as Stan Brown, David Black, and Mary Smith, regarding the failure of Kaiser to address serious patient and staff safety issues. None of Ms. Church’s complaints received any substantive response, other than her termination. The subjects of these complaints included:

* OSHA violations including concerns about frequent blood splashes and gastric juices deposited on nurses and the failure of Kaiser to install necessary OSHA required eyewash stations.

* The continued use of non-safety needles to avoid accidental punctures of staff.

* Toxicity of a new facility at Sacramento and a manager’s withholding of the report of work that was being done to correct that toxicity found in the Forensic Analytical report commissioned by Charles Smith to the employees in the building.

* The loss by Richard White of Personal Air Purification Respirators given to Sacramento to protect staff and patients from airborne pathogens and would not find them.

* The lack of fit testing for N-95 respirators at the Oakland or Sacramento facilities.

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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 birth injury/personal injury case and its proceedings.)

During the prenatal visit on March 3, 2004, Ms. White complained to Dr. Brown about pinching she was feeling at the cervix, to which Dr. Brown replied that it was caused by the way the babies were sitting in the uterus, that the head may be touching the cervix.

Dr. Brown did not do a vaginal exam to evaluate her cervix, or to see if it had lengthened or dilated. Furthermore, she failed to perform a transvaginal ultrasound which is commonly used to evaluate the cervix. It is doubtful that Dr. Brown had the competence to perform such an ultrasound.

The following day, on March 4, 2004, Ms. White experienced a little bit of pinkish discharge, and through the night started feeling cramping. The next morning, concerned that something was wrong, Ms. White called Universal Memorial Hospital, and they recommended that she come in to the Labor and Delivery Department, and be hooked up to a monitor to see what was going on. Dr. Gonzalez was the OB/GYN covering for Dr. Brown on that day. Upon examination, he performed a vaginal examination and determined that she was dilated 3 cm. He started her on medication in an attempt to stop the pre-term labor and further dilation of her cervix. At that time, Ms. White was in her 23rd week of the pregnancy.

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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/personal injury case and its proceedings.)

e. The PlaintifFs Should Have the Benefit of Delayed Accrual of the Elder Abuse Claims.

The principal purpose of the rule permitting postponed accrual of certain causes of action is to protect aggrieved parties who, with justification, are ignorant of their right to sue. [Seelenfreund v. Terminix of Northern Calif., Inc., supra, 84 Cal. App. 3d at 138, see Leaf v. City of San Mateo (1980) 104 Cal. App. 3d 398, 406, the rule applies where it is manifestly unjust to deprive plaintiffs of a cause of action before they are aware that they have been injured Two common themes support the delayed discovery rule:

First, the discovery rule is applied to actions in which it is generally difficult for plaintiffs to immediately detect or comprehend the breach or the resulting injuries (e.g., where the cause or injuries are hidden). [E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 CA4th 1308, 1318] Second, courts have relied on the nature of the relationship between defendant and plaintiff to explain application of the delayed accrual rule (e.g., where confidential or fiduciary relationships are involved). [See Parsons v. Tkkner (1995) 31 CA4th 1513, 1526]
In this case the plaintiffs had to learn about why Paul Steinford died. They could not learn it from the medical records alone but rather had to have an expert interpret those for them. This is exactly the circumstances where the court can develop the rule to achieve justice.
The common law discovery rule, where applicable, indefinitely delays accrual of a cause of action until the plaintiff discovers or reasonably has cause to discover the facts constituting it.

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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 bus accident/brain injury case and its proceedings.)

Mr. Stanley’s testimony concerning how the bus accident occurred was therefore sufficient to support the inference that plaintiff may have failed to exercise due care. (See Hasson v. Ford Motor Co., supra, 19 Cal.3d at p. 548 [ the fact that evidence is circumstantial does not mean that it cannot be substantial. . . . the jury is entitled to accept persuasive circumstantial evidence even where contradicted by direct testimony ]; see also Scott v. Alpha Beta Co. (1980) 104 Cal.App.3d 305, 310 [the question of plaintiff’s comparative fault is for the jury if there is any evidence from which a jury might reasonably conclude that plaintiff failed to exercise due care for her own safety ]; Jarvis v. Southern Pac. Transportation Co. (1983) 142 Cal.App.3d 246, 254-255 [in personal injury action, the issue of contributory negligence was properly submitted to the jury where there was evidence from which the jury could reasonably infer that plaintiff should have heard the sounds or vibrations of the oncoming railroad boxcar].)

This testimony, even if disputed, was sufficient to allow the issue of plaintiff’s comparative fault to go to the jury. Accordingly, a new trial should be granted.

A NEW TRIAL IS WARRANTED BECAUSE PLAINTIFF’S COUNSEL’S IMPROPER GOLDEN RULE ARGUMENT ENCOURAGED THE JURY TO AWARD EXCESSIVE PAIN AND SUFFERING DAMAGES.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

NO ACT OR OMISSION OF UMH CAUSED PLAINTIFF’S CLAIMED INJURIES

The law is well settled in California that causation must be proved within a reasonable medical probability based on competent expert testimony. Mere possibility is insufficient to establish a prima facie case. (Jones v. Ortho Pharmaceutical Corporation (1985) 163 Cal.App.3d 396, 402.) The cause of an injury has been defined as something that is a substantial factor in bringing about an injury. (Mitchell v. Gonzales (1991) 54 Cal.App.3d 1041.) Thus, to recover from UMH for medical negligence in this action, plaintiff must prove that the purported negligence of UMH was a substantial factor in bringing about the claimed injuries.

Sandy Singer has opined that no act or omission by UMH’s nursing staff caused or contributed to plaintiffs alleged injuries. It is a physician function, rather than a nursing function, to order treatment for patients. Nurse Singer has opined that the nurses properly observed and reported Ms. White’s condition and progress to her treating physician. The nurses appropriately monitored Ms. White during her early labor, and followed the doctor’s orders. The nurses appropriately observed and reported on the condition and progress of the fetuses’s based on the fetal monitor. The nurses appropriately recorded their observations in Ms. White’s chart and on the fetal monitoring strips. The nurses also followed the appropriate protocols for medication administration during early labor, as well as the protocols for early labor, and for the labor and delivery of extremely premature infants.

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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 employment discrimination/personal injury case and its proceedings.)

Additionally, Ms. Church’s termination was in violation of Health and Safety Code Section 1278.5(b)(1): No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following:

(a) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.

(d)(1) There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility.

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The following blog entry is written from a defendant’s position during the early stages of litigation. 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 sexual harassment/personal injury case and its proceedings.)

DEFENDANT SHOULD BE SANCTIONED FOR FAILING IN BAD FAITH TO SUBMIT TO AN AUTHORIZED FORM OF DISCOVERY

Nothing excuses the fact that defendant has refused to commit to a date for his deposition.

This assertion highlights the fact that he has acted in bad faith and will continue to do so unless and until the Court orders him to appear for his deposition in this sexual harassment case. As stated above, there is no substantial justification for Defendant not to appear for his deposition before August 2006 and, therefore, sanctions are warranted. (C.C.P. §§2023 and 2025(j)(3)). Moreover, Ms. Brown has been forced to simply take Defendant’s word that he will be available in August. There is no guarantee that Defendant will suddenly become unavailable or on another extended business trip in August, especially in light of the fact that Defendant will not commit to a date in August for his deposition at this time.

California courts have long recognized the potential for discovery abuse and noted, We are also aware the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious case or defense … (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.) In adopting this theory, the court in Calcor Space Facility Inc. v. Superior Court (1997) 53 Cal.App.4th 216, added, Our observation of the day to day practice of law leads us to conclude this cancer is spreading and judges must become more aggressive in curbing these abuses. (53 Cal.App.4th at 219-220.)

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