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 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 SIXTH CAUSE OF ACTION FOR NEGLIGENCE IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS
Defendant’s own arguments are self-defeating, and indicative of exactly why the demurrer should be overruled. On one hand, Defendant argues in its demurrer that “ODA cannot practice medicine” and therefore should not be subject to the seventh cause of action for medical malpractice. On the other hand, Defendant argues that the negligence claims are duplicative and thus should be stricken without leave to amend. Defendant cannot have it both ways. Defendant cannot argue that (a) it should be released (at pleading stage) from medical causes of action, and (b) it should be released from negligence causes of action because they are duplicative.
Plaintiff, on the other hand, is allowed to plead it both ways. In general, a plaintiff is entitled to plead alternative theories and even inconsistent allegations. (See Adams v. Paul (1995) 11 Cal.4th 583, 593.) Given that Plaintiff alleges that Defendant ODA was directing Doctors and Nurses, and that it did in fact employ medical professionals and direct their work, ODA is a proper defendant in both causes of action.
Defendant’s concerns can be dealt with in discovery. Its demurrer should be overruled.
PLAINTIFF’S SEVENTH CAUSE OF ACTION FOR MEDICAL MALPRACTICE IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS
Defendant’s demurrer to the seventh cause of action lacks any legal or factual citation whatsoever. Plaintiff alleges that Defendant ODA, a health care provider as it relates to organ donation issues, employed, instructed, co-conspired with and authorized Doctor Defendants, as well as Nurses (both its own employed nurses, and those employed by other defendants) in regards to medical care provided to Plaintiff and her son.
Defendant’s arguments against being sued for malpractice are arguments for trial or summary judgment, not arguments for the pleading stage. Defendant’s argument wholly lacks merit, as any corporation who employs medical professionals is responsible for the actions of its employees. (See Part 9 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.