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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.)

d. The Doctors Are Accused by Sufficiently Allegations of Reckless Neglect Under the Elder Abuse Act.

To establish elder abuse a plaintiff must show a defendant was guilty of recklessness, among other possibilities. [Benun v. Sup.Ct. (Country Villa East)] (2004) 123 Cal. App. 4th 113, 120] Then the controlling statute of limitations is for personal injury, hence two years. [Ibid]
The Second Cause of Action states that the doctors were reckless and showed a deliberate disregard of a high probability that injury would occur. That is recklessness. [Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1019 (citing other cases)]

In 1991, in order to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults (Welf. & Inst. Code, § 15600, subd. (j)), the Legislature added Welfare and Institutions Code section 15657 to the Act.

That section makes available, to plaintiffs who prove especially egregious elder abuse to a high standard, certain remedies in addition to all other remedies otherwise provided by law (Welf. & Inst. Code, § 15657). [1] Specifically, a plaintiff who proves by clear and convincing evidence that a defendant is liable for physical abuse, neglect, or financial abuse (as these terms are defined in the Act), and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of such abuse, may recover attorney fees and costs. (Id., subd. (a), incorporating by reference Welf. & Inst. Code, §§ 15610.30, 15610.57, 15610.63.)
Covenant Care, Inc. v. Superior Court (Inclan) (2004) 32 Cal.4th 771, 779-780.

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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.)

Steve Black, an eyewitness to the accident, testified that “plaintiff was hit by the front of the bus as she was walking in the crosswalk.” However, defendant’s accident reconstruction expert, Paul Stanley, testified that, contrary to the eyewitness testimony, the point of impact occurred on the side of the bus, not at the front of the bus. Mr. Stanley explained that, based on the point of impact measured by the police officer at the scene and the location of the bus at rest, plaintiff came into contact with the driver’s side of the bus. (Neither the location of the bus at rest, as depicted by plaintiff’s photograph, nor the measurements of the police officer were objected to at trial).

Mr. Stanley further testified that, as the bus was turning left, it would have obscured Mr. Black’s view of the accident. Most importantly, Mr. Stanley testified that there was nothing between plaintiff and the bus that would have obstructed plaintiff’s view of the bus as she was walking toward it:
Q. If you go back two or three or four seconds or five seconds when you are doing your recreation, is there anything between the pedestrian and the bus that would preclude the ability to see the bus?
A. No. None at all
[Q. You’ve got two eyewitnesses say she was in front of the bus at the time of impact. But you have decided that she walked into . . . the left-hand side of the bus?
A. My hands are tied by the science. Like I said, it’s uncomfortable to face a jury and say, look, people are saying front, the physical evidence says side, and there is no physical evidence that lets me put it in front of the bus ].)

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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.)

Kaiser has a very clear national policy regarding Corrective/Disciplinary Action because it is obligated to have one.

Kaiser Permanente (KP) must comply with specific legal/regulatory standards that include, but are not limited to, those indicated by Medicare and other government program billing requirements, Guidance issued by the Centers for Medicare and Medicaid Services, the Department of Health and Human Services, the Compliance Program Guidance issued by the Office of the Inspector General, and HIPAA/Privacy and Security regulations …. KP is required to have well publicized disciplinary guidelines that demonstrate its commitment to compliance and set forth the consequences for violations of compliance mandates.

In other words, state and federal laws and regulations require that Kaiser follow its own Corrective/Disciplinary Action policy. The last paragraph of that policy states: Employees who report compliance and/or ethics concerns in good faith will not be subject to corrective/disciplinary action for doing so… Nevertheless, even assuming the truth of Kaiser’s purported reason for terminating Ms. Church, Ms. Church was terminated in violation of Kaiser’s legally mandated policy because she was terminated for printing out an improperly viewable document to show to Mr. Oliver.

In fact, both the reasons given for Ms. Church’s ultimate termination and the underlying reasons for the draft disciplinary letter which she printed from Mr. White’s screen were pretext for retaliatory action and restraint of Ms. Church’s efforts to hold the managers in charge of Environmental, Health and Safety accountable for the numerous lapses in employee and patient safety which they have countenanced while she has worked for Kaiser (first as a consultant, then as an employee). Kaiser managers expressed concerns about Ms. Church’s communication style when she would communicate that a) there were serious defects in Kaiser’s workplace safety program and b) those managers were partly or fully responsible for those serious defects.

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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.)

UMH DID NOT BREACH ITS DUTY OF CARE TO PLAINTIFFS DECEDENTS

A hospital such as UMH owes its patients a duty of reasonable care. In a wrongful death action that is based on medical malpractice, the evidence must be sufficient to allow the jury to infer that in the absence of defendant’s negligence, there was a reasonable probability that the plaintiff would have obtained a better result. (Espinoza v. Little Company of Mary (1995) 31 Cal.App.4th 1304, 1315.) The measure of such duty is the degree of care and skill ordinarily used by hospitals generally in the community, according to what the undertaking to treat the particular patient requires in each instance. (Contreras v. St. Luke’s Hospital (1978) 78 Cal.3d 919,927.)

The declaration of Sandy Singer, RN, establishes that she has sufficient credentials to qualify as an expert witnesses with regard to the care and treatment provided to plaintiff Joan White and plaintiffs decedents by UMH’s nursing staff. She has opined, based upon a review of the relevant documents, that UMH did not breach its duty of care to plaintiff and plaintiffs decedents as the staff properly followed doctors’ orders, properly monitored, observed and reported the condition of Joan White and the twins to the doctors and cared for Ms.. White and the twins appropriately. Nurse Singer has also stated that it is a physician function, rather than a nursing function, to order treatment for patients.

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Toyota’s recent series of missteps has forced the automaker to recall millions of vehicles that could potentially malfunction (obviously, some already have), possibly causing injury to the occupants as well as other drivers sharing the road. Sacramento lawmakers are stepping up their efforts to stay ahead of potential issues affecting California drivers.

A House Democrat expressed concern Wednesday about a massive Toyota recall that has led the automaker to stop manufacturing and selling vehicles linked to problems with gas pedals, signaling that Congress could soon review the massive recall.

Michigan Rep. Bart Stupak, who leads an investigative subcommittee, said his staff would meet with Toyota officials on Wednesday following the automaker’s decision to suspend U.S. sales of eight of its vehicle models, including the Camry, the best-selling car in the United States. The company is also halting production at assembly lines at six North American car plants, beginning the week of Feb. 1.

“We want to find out what Toyota knows about the sudden acceleration problem with several of their vehicles and we want to know what will be done to protect consumers who are currently driving those vehicles,” Stupak said in a statement.

Stupak is a senior member on the House Energy and Commerce Committee, which held high-profile hearings and pushed for new auto safety requirements following the massive recall of Firestone tires in 2000. Congress approved legislation requiring automakers and other manufacturers to provide data on deaths, injuries, consumer complaints, property damage and warranty claims.

Toyota issued a recall last week for the same eight models involving 2.3 million vehicles. It followed a separate recall of 4.2 million vehicles last year because of problems with gas pedals becoming trapped under floor mats, causing sudden acceleration. That problem was the cause of several crashes, including some fatalities. About 1.7 million vehicles fall under both recalls.

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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.)

Unfortunately for Kaiser’s defense, there is no policy against, or harm caused by, printing a draft work-related memorandum from her supervisor’s screen:

1) Kaiser’s Principles of Responsibility contain no language that would preclude Ms. Church from printing a letter about her that was publicly visible in an open cubicle and bringing that letter to Kaiser’s Chief Operating Officer.

2) Ms. Church’s act of printing the letter about her could not, in any way, violate Richard White’s right to privacy. Mr. White has no cognizable right to privacy with regard to a work related correspondence about someone else. In fact, Kaiser’s own Principles of Responsibility and Electronic Assets Usage policy make it clear that employee privacy does not extend to conduct in the work place or to the use of Kaiser Permanente’s assets.

3) There is nothing in Kaiser’s Electronic Usage Policy that precluded Ms. Church from printing a visible document about her and taking it to the Chief Operating Officer of the hospital.

The violations of Kaiser’s Electronic Usage Policy were by Richard White:

a. He failed to prevent access to his computer.

b. He failed to “avoid leaving…business information open/accessible by employing password-activated screen savers.”

And, yet, Mr. White received no discipline whatsoever. Interestingly, Kaiser’s Electronic Assets Usage policy also states Users who identify security issues should report them immediately. In Ms. Church’s case, that line should be followed by: “…and subsequently be terminated.” (See Part 4 of 11.)

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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.)

The court erred in removing the issue of comparative negligence from the jury as there was sufficient evidence to support a finding of fault on the part of the plaintiff.

It is well settled that the issue of comparative negligence is a question of fact for the jury where there is sufficient evidence to support an affirmative finding. (See Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548 [ Where contributory negligence is asserted as a defense, and where there is “some evidence of a substantial character” to support a finding that such negligence occurred, it is prejudicial error to refuse an instruction on this issue, since defendant is thereby denied a basic theory of his defense ] overruled on other grounds in Soule v. Gen. Motor Corp. (1994) 8 Cal.4th 548, 572.) Ordinarily issues of negligence are jury questions and the court may rarely decide comparative negligence questions without submitting them to the jury. (Maxwell v. Colbum (1980) 105 Cal.App.3d 180, 186.)

Here, defendant stipulated it was negligent and that its negligence was a substantial factor in causing plaintiff’s injuries. Defendant, however, did not concede its affirmative defense of comparative negligence and requested that the jury be instructed on the issue of plaintiff’s comparative fault. Plaintiff’s counsel objected on the basis there was no evidence that could support a finding of fault on the part of the plaintiff. (Ibid.)

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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.)

Tina Steinford, a distraught daughter of Paul Steinford, decided that her father should not have suffered and died but only could guess why. She did not have any material facts; did not have any medical records until April 2007; could not afford hiring a qualified doctor to investigate; and has no training in medicine or nursing. Her father was 84 years old, so a reasonable person does not normally suspect wrong doing or premature death.

She did not know and the medical records did not disclose the known side effects of the psychotropic drugs administered. Rather, those records refer to failures of the respiratory system, failure of the kidneys, sepsis and, unltimately, heart failure. Upset and too poor to pay for professionals, she continuously sought help but did not find it until after she contacted the Citizens Commission on Human Rights. A referral from that group to this counsel lead to the prompt involvement of a doctor that understands that psychotropic drugs poison older people. That immediately lead to the filing of this lawsuit.

The history of the delayed discovery rule preceding the passage of me three year outer limit in 1975 evidenced the possibility that the commencement of the running of the statute might be deferred indefinitely. [Brown v. Bleiberg (1982) 32 Cal. 3d 426, 432] And so in the Brown case a woman that had a foot surgery for corns sued her doctor twelve years later because unknown to her he removed bones.

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The recent troubles facing Toyota automobiles in North America affect not only the owners of its vehicles, but also those of us sharing the roadways with the defective and potentially dangerous cars.

Toyota dealers resumed selling vehicles Thursday that were pulled from the sales lot to address sudden-acceleration problems as the automaker said lost sales and a series of related recalls would cost $2 billion.

That recall price tag would be one of the most expensive in automotive history, said auto information company Edmunds. com.

Also, the California state assembly reacted to Toyota Motor Corp.’s safety recalls and its decision to shutter the state’s last auto manufacturing plant by voting Thursday to stop buying Toyota cars for use by lawmakers when they’re in Sacramento. The Assembly Rules Committee voted to resume a 2003 policy of buying only U.S.-made cars for its 130-vehicle fleet.

Toyota stopped sales of eight models — including its top-selling Camry and Corolla — on Jan. 26, saying the gas pedals could get stuck and cause runaway acceleration. The automaker also shut down production of the vehicles for a week while it examined how to fix the problem, which it attributed to wear on the pedal system.

“We now have more than enough parts at dealers to take care of the flow of repairs. Dealers may sell a new car if the repair is made,” said Mike Michels, a Toyota spokesman. “There is no single point in time when the stop sale would be lifted. It will be car by car.”

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The recent public apology by Toyota’s chief was overdue as the automaker was forced to recall millions of vehicles that could potentially malfunction (obviously, some already have), possibly causing injury to the occupants as well as other drivers sharing the road.

Toyota’s president emerged from seclusion Friday to apologize and address criticism that the automaker mishandled a crisis over sticking gas pedals. Yet he stopped short of ordering a recall for the company’s iconic Prius hybrid for braking problems.

Akio Toyoda, appointed to the top job at Toyota Motor Corp. last June, promised to beef up quality control, saying, “We are facing a crisis.”

Toyoda, grandson of the company’s founder, said he personally would head a special committee to review checks within the company, go over consumer complaints and listen to outside experts to come up with a fix.

“I apologize from the bottom of my heart for all the concern that we have given to so many customers,” said Toyoda, speaking at his first news conference since the Jan. 21 global recall of 4.5 million vehicles.

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