| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Dr. XY is incorrect when he asserts that no new facts have been alleged to support Plaintiffs’ cause of action for elder abuse. New facts have been alleged in the TAC and incorporated by reference in paragraphs 34-35.

For these reason, Defendants’ Demurrer should be overruled and this lawsuit be allowed to proceed to discovery and trial by jury.

CIVIL CODE SECTION 337.4 LIMITATIONS DO NOT APPLY
Defendant DAVID XY, M.D. claims that Decedent’ s pain and suffering does not survive her death. He further claims that because recoverable damages are an essential element, Plaintiffs cannot make out a cause of action for Intentional Infliction of Emotional Distress. Welfare and Institutions Code Section 15657.5(b)(1) specifically provides:

The limitations imposed by Section 377.4 of the Code of Civil Procedure on the damages recoverable shall not apply.

As argued above, Plaintiffs have alleged facts sufficient to state a cause of action for abuse of Decedent, a dependent adult within the meaning of Welf & Inst. Code §§ 15600, et. seq. Therefore, Section 377.4 does not apply to pain and suffering by the defendant caused by abuse in the form of custodial neglect in this case.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

LIABILITY CONTENTIONS

XYZ contends that Plaintiff was the sole cause of this accident.

A bicyclist is subject to all of the same provisions applicable to the driver of a vehicle except for obvious exceptions. Vehicle Code section 21200 (a).

When not otherwise prohibited by the Vehicle Code or local ordinance, bicycles may be ridden on the shoulder of a highway but whether they are operated on the roadway or the shoulder they must travel in the same direction as vehicles. Vehicle Code section 21650.1. A person riding a bicycle on a roadway at a speed less than the normal speed of traffic must keep as near the right side of the curb or edge of the roadway as possible, Vehicle Code section 21202 (a), except when reasonably necessary to avoid conditions that make it unsafe to continue along the right curb or edge. Vehicle Code section 21202(a)(3) [ No person shall ride, operate or use a bicycle, … on a sidewalk, bikeway or boardwalk in a willful or wanton disregard for the safety of persons or property. ].

In this case, Plaintiff admitted, at deposition, that it was his normal custom and practice to ride his with the flow of traffic. However, he would usually ride on the sidewalk. Yet, on this particular occasion, he chose to ride his bicycle on the north side of the street, in a westerly direction against the flow of eastbound traffic. Certainly, this was a willful decision by the plaintiff to disobey the rules of the road. As such, XYZ contends that plaintiff’s willful decision(s) constitutes negligence per se.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this medical malpractice case and its proceedings.)

The following blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.

Defendant’s Trial Brief Re: Special Jury Instruction #1
IT IS UNDISPUTED THAT DEFENDANT’S SPECIAL INSTRUCTION #1 IS AN ACCURATE STATEMENT OF THE LAW FOR CAUSATION IN MEDICAL MALPRACTICE
Causation Must Be Proven Within A Reasonable Degree of Medical Probability

The law is well settled that in a personal injury action, causation must be proven within a reasonable medical probability based on competent expert testimony. Jennings v. Palomar (2003) 114 Cal.App.4th 1108, 1118. Defendant’s Special Instruction #1 states precisely the test for the jury to evaluate causation: Causation must be proven within a reasonable medical probability based upon competent expert testimony. Defendant’s Special Instruction #1 is thus well suited to advise the jury of the requisite standard, since it is a proper and accurate statement of controlling law.

CACI 430 Fails to Apprise the Jury of The Standard of Causation For Medical Malpractice
CACI 430 states in full that:

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial fact. It does not have to be the only cause of harm.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Nursing notes written approximately six hours before Ms. Fine’s family called the paramedics include the following entries: “Resident alert and responsive. Fluids tolerated well. Vital signs normal, no pain. No shortness of breath. No acute distress at this time. Dr. XY aware of recent lab results. Resident resting in bed, turned every two hours for comfort…”

Dr. W’s notes from ABC Hospital compiled in the Emergency Department, minutes after Claire Fine left Eastern, tell a very different story. The hospital records describe Claire Fine as dehydrated, in shock due to an infection with a blood pressure of 63/37, and suffering from kidney failure. She had a feeding tube in place that was not being used to feed her. She had poor skin turgor, decubitus ulcers and contractures. Dr. W. had originally asked that she be transferred to University Medical Center but her condition was so critical that the paramedics took her to ABC Hospital because it was closer to Eastern
Dr. W. stated in his notes that Decedent was unable to respond to his questions. Perhaps the most disturbing finding was rhabdomyolysis, a condition caused by the breakdown in muscle tissue releasing a compound toxic to the kidneys. The condition occurs when a person is left to lie in one place for prolonged periods of time. Dr. W. felt rhabdomyolysis had been present for about one week. The nursing home was unable to reach Dr. XY, who returned a call placed to him by the nursing home only after Decedent had been transferred by paramedics. She died 10 days later. Claire was 53 years of age. Records indicate that she had been suffering from cancer for over one year that had gone undiagnosed and untreated.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

E. Outstanding Discovery

Plaintiffs have not concluded the depositions of Universal’s PMK and custodian of records. Universal’s designated PMK, Edwin Ferguson, admitted that he has no knowledge about, among other topics, whether Universal had any agreements, provided manuals, imposed requirements on the purchase of asbestos-containing products and provided information about the handling and health hazards of asbestos to the West Facility. Indeed, other than briefly reviewing three documents, Mr. Ferguson did nothing to prepare for his deposition. This comes as no surprise since Mr. Ferguson first heard that he was being designated as Universal’s PMK on the day of his deposition. Also, during the deposition of Universal’s designated custodian of records, Linda Snowball, she testified that she has not searched for documents listed in Categories 5 through 17 of plaintiffs’ custodian of records deposition notice. These include documents about Universal’s control and supervision of the West Facility, as well as information about any asbestos-containing products used there. If the parties are still at an impasse after the meet-and-confer process, plaintiffs will move to compel.

On April 1, 6, 23 and 27, 2009, plaintiffs subpoenaed the deposition of Unity’s owner, Jimmy Arnold. Plaintiffs’ process server conducted several hours of surveillance on Mr. Arnold’s business and gated residence, and have made several attempts to personally serve Mr. Arnold with the subpoena. In fact, Mr. Arnold has continuously evaded service by ignoring and refusing to allow the process server to enter his gated home. Plaintiffs will re-effectuate service on Mr. Arnold in the coming days so that his June 1, 2009, deposition will go forward.
All of the aforementioned pending discovery may well produce evidence confirming, among other things, that: (l) David Plaza worked at the West Facility from 1981 through 1983; (2) the West Facility was either a Universal-owned or franchisee-owned store during the relevant time period; (3) Universal controlled the day-to-day operations of the West Facility; (4) Universal supplied asbestos-containing products to the West Facility;

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

Trial Brief of Defendant-in-Intervention, XYZ Insurance Company
ESTIMATED LENGTH OF TRIAL

Two to three days.

STATUS OF PLEADINGS

This case arises out of an auto versus bicycle accident that occurred at approximately 3:20 a.m. on October 21, 2005, at the intersection of 42nd Street and J Street, in the City of Sacramento.

Defendant, JANE LEE, was driving her 1998 Mercedes-Benz C230 eastbound on 42nd Street and preparing to make a right turn onto J Street. Plaintiff, JOHN SMITH, was riding a bicycle from the opposite direction on the sidewalk of 42nd Street. Plaintiff SMITH rode his bicycle on the sidewalk and across J Street and then directly into the vehicle driven by JANE LEE as Ms. LEE was making her right turn.

Plaintiff, JOHN SMITH, claims that defendant, JANE LEE, negligently operated her vehicle to cause the subject accident and resulted in Mr. Smith’s alleged injuries and damages. Defendant, BOB LEE, is the husband of defendant, JANE LEE. Mr. Lee was the registered owner of the vehicle and has been sued accordingly.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

4. Universal’s Oversight of its Franchises

Universal’s District Managers, Territory Sales Managers and Business Counselors personally visited franchisees on a regular basis to advise the franchisee on how to run a profitable business. In fact, it was important that the franchise tire center and Universal work together so they could make a profit so they can stay in business.

The District Managers and Territory Sales Managers worked with franchisees to ensure that the franchise had a balanced inventory of Universal products. The District Managers and Territory Sales Managers also told the franchisees of upcoming Universal promotions and which Universal products the franchisee needed to support those promotions. Universal’s advertising department was in charge of all promotions for all Universal stores, including franchises. Jimmy Arnold of Unity always participated in Universal’s sales promotions. Indeed, Universal never had a problem with a franchisee participating in Universal’s promotions.

Universal’s Business Counselors acted as business consultants to the franchisee. The Business Counselors oversaw whether the franchise operated like a Universal-owned store and followed Universal’s standards. This includes control of the franchise employee’s behavior and work practices. For example, if a franchise employee was the subject of customer complaints, Universal notified the dealer so in that way, [Universal] would try to control what he was doing, you know, the dealer. [Id.] Further, Business Counselors advised the franchisees to send their employees to Universal-certified classes or schools and receive National Institute for Automotive Service Excellence ( ASE ) certification. Universal-trained mechanics and representatives from brake manufacturers, such as Bendix and Raybestos, instructed franchise service personnel on how to remove and install brakes.

(The discovery issues presented here are common to most personal injury cases.)

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Despite repeated complaints from family members and assurances that Decedent’s complaints of pain would be addressed, neither the nursing staff nor Dr. XY intervened in an effort to determine what was causing Decedent’s deteriorating physical condition and pain.

On a visit in late October, family members were convinced Decedent was very ill. They demanded that decedent be transferred to a hospital. The nursing staff and Dr. XY refused to co-operate with the family. Because Eastern refused to seek medical attention for Decedent, and because Dr. XY failed to come to the facility to examine Decedent and refused to authorize a transfer to an acute care facility, the family called the paramedics to Eastern.

When paramedics arrived, the nursing staff refused to allow them entry to attend to Decedent. The family ultimately gained access to Eastern for paramedics. The family then fired Dr. XY and asked Dr. Steven W. to care for Decedent. Decedent was transferred to Olympic Medical Center.

“The nursing notes from Eastern compiled on the days leading up to her transfer to Olympic Hospital, an acute care hospital, forced upon Eastern by the family, read as if Decedent was awake, alert, with normal vital signs and eating a healthy diet. There is one mention of skin breakdown on her sacrum but no other indication that she is not well, in pain and not alert.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

SECOND CAUSE OF ACTION cont.

33. The acts of Defendants as alleged herein and above was intended to cause injury to Plaintiffs in that Defendants arbitrarily adjusted the claim in an amount less than what the Policy allowed for without any basis for doing so and without any investigation thereon. Defendants’ conduct in this regard was carried on with a conscious disregard of the rights of Plaintiffs.

34. As a direct and proximate result of said unlawful conduct of Defendants, Plaintiffs have suffered and will continue to suffer economic and non-economic damages including, but not limited to, substantial losses of past and future earnings, bonuses, other compensation, and other employment, and unemployment, benefits and job opportunities, plus expenses in an amount according to proof at time of trial.

35. As a direct and proximate result of said unlawful conduct of Defendants, Plaintiffs have suffered, and continue to suffer, mental and emotional distress, including but not limited to, frustration, depression, nervousness and anxiety, and have thereby incurred general damages in a sum in excess of the jurisdiction of this Court, all in an amount according to proof time of trial.

36. As a further direct and proximate result of Defendants’ breach of the duty of good faith and fair dealing, Plaintiffs have suffered special, as well as, other damages, in a sum in excess of the jurisdiction of this Court, plus interest, including prejudgment interest, all in an amount according to proof at time of trial.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Plaintiffs’ FAC alleges in paragraphs 9, 19, 20, 21, 24, 25 27, 28 and 29 that while in the care and custody of the moving party, Decedent suffered severe malnutrition, was unreasonably and continuously restrained, suffered pain that went untreated, suffered stage III decubitus ulcers, severe infection, acute untreated kidney failure, and severe dehydration. These paragraphs further allege that Defendant Dr. XY had a duty as her attending physician to ensure that her basic physical, safety and medical needs were attended to. Plaintiffs also allege that the above referenced maladies and other occurred because Dr. XY failed to monitor and assess her condition, failed to maintain accurate records, failed to provide nutrition to prevent malnutrition and fluids to prevent dehydration, failed to take proper measures to prevent skin breakdown and to monitor skin integrity, failed to monitor and respond to notification by the nursing staff that Decedent’s condition had deteriorated and required his medical attention.

C. Defendants Acted with Recklessness, Oppression and Fraud.
In order to make out a claim for abuse of a dependent adult the EADACPA, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. These three categories involve intentional, wilfull, or conscious wrongdoing of a despicable or injurious nature. College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721. These are the same allegations that are required to make out a claim for Wilful Misconduct under Civil Code §3294 which is Plaintiffs’ First Cause of Action in their FAC. Defendant’s Demurrer to this cause of action was previously overruled by this Court. Recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a conscious choice of action with knowledge of the serious danger to others involved. (Id., at 721.)

Continue Reading ›