The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice 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 Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.
Memorandum of Points and Authorities in Support of Defendant National Medical Center’s Demurrer
Plaintiff’s complaint is based on the medical care provided to his mother and decedent, Abigail Hill, by defendants. Plaintiff alleges defendants’ negligent medical care resulted in his mother’s death.
The demurrer of National Medical Center to plaintiff’s complaint and its causes of action should be sustained without leave to amend for the following reasons:
The complaint is uncertain. On the first page of the complaint, plaintiff checked boxes indicating causes of action for “Malpractice/Negligence” and “Wrongful Death.” On page 3, plaintiff checked boxes indicating causes of action for General Negligence and Unfair Business Practices. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.
The facts set forth on page 4 of the complaint, labeled as a “General Negligence” cause of action, do not support a cause of action for general negligence. Plaintiff cannot claim general negligence under the circumstances presented by the facts of this case; it is clearly meant as an action for professional negligence. The complaint should be reduced to a single cause of action for medical negligence/wrongful death which would encapsulate all of plaintiff’s theories except the alleged Unfair Business Practices claim.
The statute of limitations has expired on the professional negligence claim. Plaintiff failed to allege the dates during which plaintiff’s decedent was provided medical care by defendant National Medical Center (NMC). Plaintiff also fails to allege decedent’s date of death. Plaintiff alleges that decedent received care on various days in 2006. Autopsy documents reveals that Ms. St. Andre died on May 10, 2006 and her son expressed concerns regarding professional negligence on May 17, 2006. Plaintiff’s complaint was filed on May 11, 2009. Plaintiff’s complaint is thus outside the statute of limitations for wrongful death cases based upon medical negligence, as set forth in C.C.P. §340.5.
Finally, there are no facts pled to support plaintiff’s Unfair Business Practices claim other than those facts pled in plaintiff’s general allegations. Thus, this cause of action fails to state facts sufficient to state a cause of action alleging Unfair Business Practices. (See Part 2 of 6.)
For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.