Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse case and its proceedings.)
It is also worth noting that situations similar to those described in this medical negligence case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
A managing agent is a corporate employee who exercises substantial independent authority and judgment in decision-making so that the decisions ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567, 577.) As the California Supreme Court has held, supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents. (White, supra, at 577 (emphasis added).) Plaintiff has alleged ratifying conduct of defendant’s Managing Agents – its administrator and various Supervisors. Defendant’s contention, however, that the administrator or the Supervisors may not be “managing agents,” is inappropriate argument of what it believes the evidence may or may not establish at the time of trial on this issue, which of course, is not the standard on a demurrer. It is not the function of a demurrer to test the truth of the plaintiffs allegations or the accuracy with which he describes the defendant’s conduct. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It “admits the truth of all material factual allegations in the complaint …”; the question of a plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) Accordingly, defendant’s reliance on Kelly-Zurian v. Wohl Shoe Co.(1994) 22 Cal.App.4th 397 is erroneous. In Kelly-Zurian, a sexual harassment case, the court of appeal determined that, based on the evidence presented at the trial, there was insufficient evidence to prove that the plaintiff’s supervisor was a managing agent of the defendant. The issue was the sufficiency of the evidence. Contrary to defendant’s assertion, the case does not hold that an administrator is not a managing agent.
Defendant then argues that plaintiff has not alleged sufficient facts of the defendant’s managing agent’s knowledge that the staff’s conduct was reckless neglect. This argument fails. First, the court overruled defendant’s demurrer on the sufficiency of the facts of reckless neglect in the complaint. Second, plaintiff has alleged facts of ratification and authorization by defendant of those reckless neglectful acts and omissions by defendant’s staff. If defendant wants to argue at trial that the hospital’s managing agents did not realize that the staff’s repeated feeding of Mr. White with solid food, in violation of his Patient Care Plan and physician’s orders, which caused Mr. White to aspirate, suffer from respiratory failure with permanent cognitive deficits, and becoming ventilator dependent, was egregious and reckless neglect of Mr. White, then defendant can make those arguments. Again, however, the issue is the sufficiency of the facts set forth in the First Amended Complaint. (See Part 8 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.