(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.)
PLAINTIFFS CONCEDE THAT PLAINTIFF’S SECOND CAUSE OF ACTION FOR NEGLIGENCE IS DUPLICATIVE OF PLAINTIFF’S EIGHTH CAUSE OF ACTION FOR PROFESSIONAL NEGLIGENCE AS AGAINST THE DEFENDANT, PAUL SMITH, M.D.
The Plaintiffs agree with the moving party’s argument that the Plaintiff’s second cause of action for Negligence is duplicative of the Plaintiff’s eighth cause of action for Professional Negligence as to the Defendant, Dr. Smith.
The Plaintiff concedes that a Demurrer as to the Plaintiff’s second cause of action for Negligence would be appropriate.
PLAINTIFFS SEEK LEAVE TO AMEND THEIR COMPLAINT TO ALLEGE THE PROPER REGULATIONS APPLICABLE TO THE DEFENDANT, PAUL SMITH, M.D., IN SUPPORT OF THE PLAINTIFF’S NEGLIGENCE PER SE CAUSE OF ACTION AGAINST THAT DEFENDANT
The Plaintiffs agree with the moving party that the statutes and regulations set forth in the Plaintiffs’ Complaint are applicable to health care facilities and not individual physicians, and that the Plaintiffs have failed to include the applicable statutes and regulations as to the Defendant, Dr. Smith.
Should the Court require that the Plaintiffs include these specific statutes and regulations at this time in the pleading stage, the Plaintiffs respectfully request that the Court allow the Plaintiffs to take leave to amend the Complaint to assert the proper statutes and regulations applicable to the Defendant, Dr. Smith.
THE PLAINTIFFS HAVE SET FORTH A PRIMA FACIE CASE FOR WILLFUL MISCONDUCT AGAINST DEFENDANT, PAUL SMITH, M.D.
To recover under the theory of Willful Misconduct, the plaintiff must show that the defendant had: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probably, as opposed to a possible, result of the danger, and (3) that the defendant consciously failed to act to avoid the peril. New v, Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689-690.
As set forth above, the Plaintiff, John Hernandez, in and through his Successor-in-interest, Robert Hernandez, has alleged sufficient facts in their Complaint to make a prima facie case for Willful Conduct against the Defendant, Dr. Smith.
As alleged in the Plaintiffs’ Complaint in paragraphs 39, 40, 41, 42, and 46, during the decedent’s admission into Doctor’s Medical Center, the Defendant, Dr. Smith, knew that the decedent was highly sensitive to antibiotics. The Defendant, knew or should have known that in prescribing an antibiotic that the decedent was highly allergic to would result in injury to the decedent. Despite this awareness, the Defendant continued to prescribe Primaxin to the decedent.
On January 14, 2006, the Defendant knew that the decedent continued to have a reaction to the Primaxin and that the decedent had developed rashes over his body as a result of the Primaxin. Instead of discontinuing the Primaxin, the Defendant, increased the dosage of the Primaxin to be administered every 8 hours instead of every 12 hours. The Defendant had consciously disregarded the health and safety of the decedent and failed to avoid injury to the decedent by continuing the decedent on a course of antibiotic that the Defendant knew that the decedent had an allergic reaction to.
Based on the above alleged facts, the Defendant’s conduct crossed the realm of negligence into willful misconduct and Defendant’s Demurrer to Plaintiffs’ Fifth Cause of Action for Willful Misconduct should be overruled. (See Part 7 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.