(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 ELEVENTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS
Plaintiff was present in the hospital when Robert Lee was being mistreated by his doctors. As such, she is a bystander victim. Further, Plaintiff was in contact by telephone during the incident. There is clearly a duty owed by Defendant ODA to Plaintiff, as they assumed that duty when they reached out to her claiming to be ethical, concerned, professionals in the subject of organ donation. As experts in a highly specialized and professional area, organ donation, Defendant ODA owed a duty to Plaintiff to disclose what they knew about her son, and to inform Plaintiff of the facts relevant to her decision to donate organs. (See Tyler v. California Children’s Home (1994) 29 Cal.App.4th 51 1, 548 (duty of ethical principled professionals to disclose and inform). (See also Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 783-784 (homeowners relying on a brokers expertise, there was a duty to disclose various details on behalf of the broker).)
The demurrer should be overruled.
PLAINTIFF’S TWELFTH CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS
Plaintiff’s claim for unfair business is not about medical negligence. Plaintiff has stated sufficient facts to support a claim regarding Defendant’s business practices. Plaintiff respectfully submits that the complaint, read as a whole, makes clear that Plaintiff is alleging that Defendants are engaged in unscrupulous business practices, engaging in outright fraud and deceit in their effort to find organ donors, and supply organs to others. Plaintiff’s claim for unfair business practices is properly pled. Demurrer should be overruled.
IF THE COURT SHOULD SUSTAIN ANY PART OF DEFENDANT’S DEMURRER, PLAINTIFF SHOULD BE GRANTED LEAVE TO FILE AN AMENDED PLEADING
Since the filing of the first amended complaint, Plaintiff has discovered an extensive amount of new facts and information which could be pled in the event the court sustains any portion of the demurrer. The new information includes hundreds of pages of documents, many of which include letters, e-mails, and statements
Leave to file an amended complaint should be liberally granted, especially where Plaintiff can allege new facts. (See McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304 (in order to sustain without leave to amend, it must be shown that the complaint is incapable of amendment; it is an abuse of discretion to deny leave to amend a complaint following demurrer).)
For the reasons set forth above, Defendant’s demurrer should be overruled in its entirety. Should the Court sustain any portion of the demurrer, then Plaintiff should be granted leave to file an amended complaint.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.