Wrongful Death Suit Filed On Behalf Of Sacramento Woman In Nursing Facility, Part 8 of 8

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Dr. XY is incorrect when he asserts that no new facts have been alleged to support Plaintiffs’ cause of action for elder abuse. New facts have been alleged in the TAC and incorporated by reference in paragraphs 34-35.

For these reason, Defendants’ Demurrer should be overruled and this lawsuit be allowed to proceed to discovery and trial by jury.

Defendant DAVID XY, M.D. claims that Decedent’ s pain and suffering does not survive her death. He further claims that because recoverable damages are an essential element, Plaintiffs cannot make out a cause of action for Intentional Infliction of Emotional Distress. Welfare and Institutions Code Section 15657.5(b)(1) specifically provides:

The limitations imposed by Section 377.4 of the Code of Civil Procedure on the damages recoverable shall not apply.

As argued above, Plaintiffs have alleged facts sufficient to state a cause of action for abuse of Decedent, a dependent adult within the meaning of Welf & Inst. Code §§ 15600, et. seq. Therefore, Section 377.4 does not apply to pain and suffering by the defendant caused by abuse in the form of custodial neglect in this case.

This exception is clearly described in the recent case of Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256 , where the California Court of Appeals states that such damages are expressly recoverable in a survivor action under the Act and Code if certain conditions are met. Specifically, the court states, Welf. & Inst. Code, § 15657, provides for heightened remedies, including recovery for the decedent’s pre-death pain, suffering, and disfigurement, to a successor in interest to a Decedent’s cause of action, where it is proven by clear and convincing evidence that a defendant is liable for Physical Abuse as defined in Welf. & Inst. Code, § 15610.63, or Neglect as defined in Welf. & Inst. Code, § 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies provided by law. Section 15657, subds. (a) & (b). The ability of the Decedent’s successor in interest to recover damages for the Decedent’s pre-death pain, suffering, or disfigurement under this section specifically trumps the general prohibition on such recovery provided at Code section 377.4.

Because Plaintiffs have stated a cause of action for Abuse of a Dependent Adult, Dr XY’s Demurrer to their cause of action for IIED based on C.C.P. § 377.4 should be overruled. Furthermore, Defendants’ contention that causes of action for wilful misconduct and abuse of a dependent adult allow for triple recovery is unfounded. Plaintiffs are allowed by law to plead alternative claims and each cause of action allows for different damage recovery.


In its last ruling, the court overruled on defendant Eastern Convalescent Hospital, et al,’s Demurrers to Plaintiffs’ causes of action for Intentional Infliction of Emotional Distress and Abuse of a Dependent Adult. The complaint contains essentially identical allegations as to Dr. XY on these causes of action Inasmuch as the court has concluded that Plaintiffs’ Third Amended Complaint stated facts sufficient to state these causes of action as to defendant Eastern, et al, it follows as a matter of logic that there are facts sufficient to state causes of action for Intentional Infliction of Emotional Distress and for Abuse of a Dependent Adult as to Dr. XY.


Because Plaintiffs have alleged facts sufficient to establish a claim for IIED and Abuse of a Dependent Adult, and because the court lacks jurisdiction to rule on Defendants’ Demurrers to Plaintiffs’ First and Eighth Causes of Action, Dr. XY’s Demurrer to Plaintiffs’ Fourth Amended Complaint should be overruled.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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