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It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also 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.)

SUMMARY OF FACTS

Donna Hill, date of birth XX/XX/1934, had been a patient of Dr. Black’s for a number of years prior to March, 2006. She had undergone colonoscopies in 2000, 2003, and an esophagogastroduodonoscopy in 2001. The colonoscopies were primarily for evaluation of colonic polyps after she had been diagnosed with breast cancer in 2001.

On March 7, 2006, the patient returned to Dr. Black for a routine screening colonoscopy. She had no colon symptoms at the time and a colonoscopy was schedule for March 23, 2006, at the Universal Endoscopy Center.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On March 23, 2006, the patient presented for her colonoscopy as scheduled. She had no complaints and there were no abnormalities noted on her physical exam, including the abdomen. She had undergone the normal bowel prep in anticipation of the procedure.

After placing the patient in the left lateral decubitus position, a digital rectal exam and visual inspection of the perineum was performed. Thereafter, the colonscope was gently inserted into the rectum. Almost immediately, Dr. Black encountered “debris” (possibly granulation tissue) in the sigmoid, that appeared partially attached to the lumen.

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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 and personal injury case and its proceedings.)

The Fourth Cause of Action For Intentional Infliction of Emotional Distress Brought By Plaintiff Debra White Has Been Properly Pleaded.

As discussed in the Introduction, supra, the Court, on ruling on a previous demurrer, stated that, with further delineation of the specific conduct of each defendant, a cause of action for intentional infliction of emotional distress could be stated, as the conduct described appears to be “sufficient to constitute outrageous conduct …”

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Fourth Cause of Action incorporates the specific allegations against each defendant which are set out in the previous three causes of action including their participation in the decision to discharge Mr. White and leave his care to his wife at home. It then alleges that all of the defendants who participated in the decision to discharge Mr. White to his home knew of the susceptibility and vulnerability of Debra White to sustaining emotional distress. It is alleged that they were further aware that, in view of Mr. White’s severe medical problems, Mrs. White was incapable of providing extensive nursing and care services her husband required and that even her best efforts in that regard would result in Harry White suffering a decline in his skin condition, bowel status, nutrition, and well-being.

National VNA, it is alleged, saw the condition of Mr. White in his home and saw how helpless Mrs. White was to adequate care for his Stage IV pressure ulcer, uncontrolled diarrhea, dehydration and malnutrition.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and personal injury case and its proceedings.)

The Fourth Cause Of Action For Intentional Infliction Of Emotional Distress Is Properly Pleaded

Defendant Dr. Wong also demurs to the Fourth Cause of Action alleging intentional infliction of emotional distress as caused by him to plaintiff Debra White.

It should be noted that this claim was made against Dr. Wong and other defendants in the original complaint in this action. In ruling on the demurrer of co-defendants Universal and Sutter VNA, the Court granted the demurrer with leave to amend, observing that it appeared that the conduct alleged appeared to be “outrageous,” but that more specific pleading as to each defendant’s conduct was necessary.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The quality of the conduct asserted against Universal in this cause of action is virtually identical to that asserted against Dr. Wong. The allegations of the Fourth Cause of Action incorporate those of the proceeding causes of action, including the Second Cause of Action, the content of which is summarized above. Together the allegations of the Fourth Cause of Action allege that Dr. Wong knew that Mr. White suffered from multiple hospital-caused conditions which made it impossible for him to be discharged home, including a Stage IV pressure ulcer, bowel impaction with frequent liquid stools, immobility, orthopedic injury, and inability to care for himself. These conditions required 24-hour care from skilled providers. Dr. Wong knew that Mrs. White was in a vulnerable emotional state from witnessing her husband’s decline and deterioration while at Universal and National. Nevertheles, Dr. Wong led Mrs. White to believe that she would be able to care for her husband at home, a representation that he could not believe was true. Relying upon such advice, Mrs. White agreed to the discharge of her husband to her home on March 27, 2008.

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It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

(Please also 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.)

On March 10, 2004, Dr. Smith noted that plaintiff had 80% of normal range of motion and was to continue with therapy and return after seven (7) weeks. Thereafter, on May 19, 2004, plaintiff complained of tingling along a branch of the radial nerve. She had full pro-supination. X-rays showed that she was healed and there was mild articular irregularity. The radiology report noted there to be diffuse osteopenia and mild deformity of the lateral aspect of the distal radius, likely related to the known fracture. Dr. Smith had an extensive discussion with plaintiff regarding her prognosis and the fact that she could follow up with him as needed. He also discussed the need for aggressive therapy. He noted “patient non-compliant with OT protocol.”

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff returned to plastic surgeon, Dr. Lee on March 4, 2004, at which time she complained of left breast pain. At that time she stated that because her systemic symptoms had improved, she had become more active and got herself into shape. She was noted to be teaching water aerobics among other physical activities. She had lost weight and increased her activity and as a result of the weight loss she began noticing rippling and wrinkling of both breasts.

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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 car accident and personal injury case and its proceedings.)

The XYZ firm also submitted a 16-page mediation brief including all of the facts supporting plaintiff’s claims of liability and damages against the defendants. Prior to the mediation, the XYZ firm also made a section 998 demand for the defendants’ automobile policy limits of $100,000. The firm offered evidence at the mediation that Mr. Black’s economic damages totaled $124,000 and his total damages approached $250,000. At the mediation on April 8, 2010, the defendants’ counsel agreed that if the XYZ firm’s damage calculations were correct and if Dr. Lee would confirm under oath the information about medical damages and causation the firm had collected and presented at the mediation, defendants would accept plaintiff’s statutory offer to settle the case for their auto policy limits of $100,000.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants took Dr. Lee’s deposition on May 13, 2010, which Ms. Brown personally attended. While being questioned by the defense attorney, Dr. Lee was unable to give an opinion related to plaintiff’s need for future surgery. Ms. Brown then presented Dr. Lee with exhibits she had prepared depicting the MRI findings, asking him a series of questions relating to Mr. Black’s injuries, whether the accident was the causative factor for those injuries, as well as his need for future surgery. She was able to rehabilitate Dr. Lee’s testimony related to questions asked by the defense attorney at the beginning of Dr. Lee’s deposition.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and medical negligence case and its proceedings.)

In Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783, the California Supreme Court made clear the distinction between “neglect” as defined above and “professional negligence.”

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

“Neglect,” within the meaning of the Welfare and Institutions Code section 15610.57, covers an area of misconduct distinct from professional negligence. As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care:

“[I]f the neglect is reckless’ or done with oppression, fraud or malice, then the action falls within the scope of section 15657 and as such cannot be considered simply based on … “professional negligence” within the meaning of section 15657.2. Delaney v. Baker (1999) 20 Cal.4th at 35. As discussed in the concurrent Motion to Strike, to set forth a viable cause of action for reckless neglect of an elder, Plaintiffs must “allege” conduct essentially equivalent to conduct that would support recovery of punitive damages.

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It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

(Please also 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.)

Plaintiff presented to Dr. Smith on December 29, 2008, approximately seven (7) days following the accident. X-rays showed a fractured distal radius which was displaced. Dr. Smith noted that the patient previously had lots of pain in the left arm related to silicone implants. The plan was to perform surgery to repair the fractured distal radius, left wrist. Thereafter, on December 31, 2008, Dr. Smith performed a closed reduction and percutaneous K-wire fixation of plaintiff’s fractured left wrist. It was noted that plaintiff had an intra-articular radial styloid fracture and volar avulsion fracture of the distal radius with moderate displacement. Plaintiff was made aware of risks, benefits and complications and informed consent was obtained. Prophylactic IV antibiotics were given at the time of surgery. A soft bandage and forearm splint was applied. Plaintiff tolerated the procedure well.

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

On January 7, 2004, plaintiff returned to Dr. Smith at which time she was one week postop and a referral was made to The Hand Center for removal of the brace and clamshell splinting, physical therapy and pin care education. TENS treatment for pain was given and a clamshell from Spica was fabricated. Range of motion exercises were taught by the therapist. It was noted that since the breast reconstruction in September 2002, she had had pain, burning and weakness in the left arm and she had been unable to grasp with force.

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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 car accident and personal injury case and its proceedings.)

The XYZ firm also retained a nurse to prepare a medical chronology; an investigator to obtain a statement from Sandy Silverberg, who had witnessed the accident; an accident reconstruction and bio-mechanical consultant; and a radiologist. The firm prepared Mr. Black for his deposition and attended that deposition; prepared for and attended the deposition of Ms. Silverberg; and prepared for and took the deposition of defendant Melinda Smith.

The XYZ firm prepared two case management conference statements and attended two case management conferences, one in October 2009 and the other in May 2010.

The XYZ firm set up the mediation and retained the mediator.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Prior the mediation and in preparation for it, Ms. Brown met with Dr. Daniel Lee, M.D., the orthopedic surgeon who had operated on Mr. Black’s left shoulder, to collect further evidence for the mediation on the issue of causation and damages. The XYZ firm also prepared numerous calculations regarding Mr. Black’s past and future wage losses, his billed amount of medical expenses and his future medical expenses for the mediation.

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It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also 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.)

Defendant. Stefan Black, M.D., will move this Court for an Order for Summary Judgment or in the alternative, the Summary Adjudication of issues, in favor of Defendant and against Plaintiff Donna Hill, pursuant to California Code of Civil Procedure section 437c.

This Motion will be based upon the grounds that this action has no merit and there is no triable issue of material fact as to this moving Defendant.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

The instant case is one of alleged medical malpractice. Plaintiff, Donna Hill alleges that Defendant, Stefan Black, M.D. (hereinafter, “Dr. Black”), was negligent in the care and treatment of Plaintiff.

Defendant, Stefan Black, M.D., brings this Motion on the grounds that his involvement in the care and treatment of Plaintiff. Donna Hill, was within the standard of care, and no act or omission on the part of Stefan Black M.D., caused or contributed to the alleged injuries suffered by Plaintiff therefore, there it no genuine issue of material fact regarding whether Defendant is entitled to summary judgment on her behalf. (See Part 2 of 5.)

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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 and personal injury case and its proceedings.)

The Third Cause of Action Properly Sets Out A Claim For Reckless Neglect Of An Elder By National

The Third Cause of Action is brought against National VNA as a result of its neglect of Mr. White in accepting him for home care and perpetuating his inadequate care at home by doing nothing to intervene on his behalf. The allegations are these:

40. Due to the aforementioned neglect of defendants described hereinabove, Harry White was at his home from March 27, 2008 until April 4, 2008, and was steadily declining and suffering from inadequate care, despite the best efforts of his wife to care for him.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

41. During the approximately one week Harry White was at home, agents and employees of defendants National, National VNA and DOES 131 to 150 came to the home of Harry White and Debra White on one occasion and observed his critically compromised condition, including the Stage IV pressure ulcer, uncontrolled diarrhea and wasting state which he Was in. Said defendants knew or should have known that Harry White was unable to be cared for at home and required the care of a 24-hour care facility and knew that Debra White could not care for her husband’s needs. With this knowledge, said defendants had a duty to recommend and facilitate Harry White’ transfer to a proper care facility and notify his physicians of the inadequacy of his circumstances at home. Knowing that Harry White would continue to suffer deterioration of his condition if he remained in his home, said defendants made the conscious decision to allow him to remain at home, knowing that his care would be inadequate and substandard. In particular, defendants knew that Debra White could not properly change the dressings on the Stage IV ulcer as required because the area was constantly moist from the uncontrolled diarrhea.

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