(Please also 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.)

Plaintiffs’ Trial Brief on Issues Arising During the Current Pendency of Trial

The issues are:

1. The court allowed Defendant to inquire of the standard of care as to the staff of ABC Skilled Nursing Facility (“ABC”) over the objections of counsel for Plaintiffs.

2. The court allowed Defendant to inquire about certain regulatory materials, i.e. the Code of Federal Regulations and the California Administrative Code of Regulations over the objections of counsel for Plaintiffs.

Neither of these lines of questioning were appropriate, material or relevant to this matter. Plaintiffs, with the filing of this brief, will renew their objections and request that the court strike the testimony and instruct the jury to ignore it. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The bases for the requests are as follows:

Standard of Care at ABC

Dr. Brown was designated solely as an expert on the issue of the negligence of Andrew Lee, M.D. Tamara White was Plaintiffs’ expert on the issue of the negligence of ABC. Ms. White was withdrawn and not deposed at the demand of Defendant Lee after the good faith settlement with ABC.

(Please also 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.)

The seminal case of Delaney v. Baker 20 Cal.App.4th 23, is cited extensively by Defendant. Unfortunately, it does not support Defendant. The decision specifically holds that medical malpractice and Elder Abuse are separate causes of action. After holding that the statute is ambiguous, the court held that if the neglect is reckless' or done with oppression, fraud or malice, then the action falls within the scope of section 15657 and as such cannot be considered simply based on ... professional negligence within the meaning of section 15657.2. Delaney, at 28. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff has pled that the failure to restrain and the failure to treat decedent in this matter was at least reckless. The pleading standard has been met, and defendants would like the court to make a factual determination that the actions were not "reckless" at the pleading stage which is an improper request. Delaney is not a case that interprets the scope of pleadings. It is a decision that interprets the scope of the statute. Delaney cannot be cited as setting forth pleading requirements as Defendant attempts in the Demurrer.

The result is relatively simple. Plaintiff is entitled to and does state a cause of action for Elder Abuse, and whether the proof presented at trial is sufficient to take the damages outside of the scope of ordinary negligence (15610.57) and into the scope of enhanced damages (15657 and 15657.2) is a separate issue. However, Plaintiffs submit that sufficient facts have been pled to meet the pleading standards as to this damage issue.

(Please also 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.)

THE MISINTERPRETATION OF THE COMPLAINT

Defendant argues that since there is insufficient pleading in Paragraphs 18-20 of the Complaint, the complaint must fail. This is the underpinning of the whole of the Demurrer and is wholly without merit. Defendant fails to cite Paragraph 17 of the Second Cause of Action which incorporates all of the facts plead in the first 16 Paragraphs. The argument is specious at best and justifies the court overruling the Demurrer without further consideration. The elements plead including the course of the care prior to death are provided in the earlier paragraphs.

STATUTORY ANALYSIS

Defendant bases the argument on Welfare and Institutions Code §§15657 and 15657.2 and ignore §15610 et seq. which define Elder Abuse itself. Plaintiff has met the pleading requirements of pleading Elder Abuse as defined by the code. Defendant is mixing an argument that the damages portion of the claim cannot be made on the facts plead and, further, attempts to insert a requirement for pleading specificity as required if there was a claim for Punitive damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

No such damages claim has been made at this time, as the interplay between C.C.P. §425.13 and the Elder Abuse statutes has not been litigated or established.

(Please also 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.)

MEMORANDUM OF POINTS AND AUTHORITIES

BACKGROUND

Plaintiffs' decedent suffered a stroke in 2003. She was hospitalized through February 19, 2004 when she was transferred to Defendant ABC Skilled Nursing Facility in Sacramento with orders that Posey restraints be used in view of the loss of use of one side of her body and confusion which could result in injury. Defendant chose to ignore the orders and on plaintiff's first night in the SNF decedent got out of bed apparently not remembering that she could not walk normally, fell and hit her head. A staff person for Defendant SNF heard her fall and eventually went to check on her. She was found on the floor with a bruise/abrasion on her forehead. She was anti-coagulated to prevent further strokes and presented a clear risk of developing a sub-dural hematoma, a common secondary response. The facility chose to do nothing until she was checked at about 7:00 in the morning and pronounced good. Finally at about noon when she started to present with severe problems showing loss of mental faculties Defendant decided that she should be sent to the hospital to be examined.

It was too late, the sub-dural hematoma had grown to the point where it was not operable by the time decedent arrived at the hospital. defendant's inadequate, delayed response proved costly for plaintiff. Decedent was, at the time, a strong-willed person and managed to hold on at home in a severely debilitated state until her death on April 25, 2004. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please also 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.)

Plaintiff Peter Greene’s Opposition to Demurrer of Defendant ABC Skilled Nursing Facility and Memorandum of Points and Authorities in Support

The Opposition will be based on the following:

1. Defendant has failed to properly deal with the content of the complaint in that the initial basis for the Demurrer is that Paragraphs 18-20 do not state sufficient facts. Defendant does not cite the court to Paragraph 17 which incorporates all of the facts stated in the First Cause of Action. Thus, no basis for the Demurrer has been stated.

2. Plaintiffs have pled sufficient facts, including a 10-hour delay in treating a patient with a head injury who was on anticoagulant therapy, was aged, and had suffered a stroke. Further, Plaintiff has pled that Defendant ignored direct orders of the forwarding physician that decedent be restrained to prevent exactly the situation that occurred. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

3. Defendant has confused pleading and proof in the motion. At this time, Plaintiffs have not requested punitive damages in order to meet the requirements of C.C.P. §425.13 and need not meet the pleading requirements of C.C.P. §3294 until the motion to amend the complaint is heard. Thus, the pleading is more than sufficient in view of the pleading of the willful and intentional acts contained in the complaint.

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, U.C. Davis Medical Center, Mercy General, or Sutter Hospital.

ON CROSS-EXAMINATION, A BRAIN INJURY EXPERT MAY BE CROSS-EXAMINED REGARDING MATTERS THAT HAVE BEEN ESTABLISHED AS RELIABLE AUTHORITIES

Evidence Code §721(b) provides as follows:

(b) If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs:
(1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion.
(2) The publication has been admitted in evidence.
(3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Pursuant to the said section, once the item of medical literature has been established as a reliable authority by the expert's testimony, that reliable authority may be utilized to cross-examine the defense expert.

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, U.C. Davis Medical Center, Mercy General, or Sutter Hospital.

Plaintiff's Opposition to Defendant's Motion in Limine to Exclude Expert Testimony Regarding Inadmissible Hearsay Evidence

AN EXPERT ON DIRECT EXAMINATION IS PERMITTED TO IDENTIFY THE BASIS FOR HIS OR HER OPINION

Evidence Code §801 permits an expert to base his or her opinion on matter "whether or not admissible," that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, an expert may base his or her testimony on reliable medical authorities including such items as journal articles, books, and other similar reliable authorities that experts traditionally base their opinions on.

Plaintiff has no quarrel with the proposition that the actual content of such journal articles should not be recited by the expert on direct examination. However, the expert must be allowed to identify the medical journal articles upon which she has relied and also identify those medical journal articles that are reliable authorities. (See Part 2 of 2.)

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

Plaintiff Must Join All Persons Necessary for Just Adjudication

A complaint shall state the names, if known to the pleader, of any person(s) who, by their absence, may leave the defendant subject to risk of incurring multiple or inconsistent obligations. If such persons are not joined as parties, the pleader must state in the complaint why they are not joined. C.C.P. §389(a) & (c).

If any person is allied in interest with plaintiff, but refuses to join as a co-plaintiff, he or she may be sued as a defendant. In such cases, the complaint must state the reasons why such person was so joined. C.C.P. §382. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The plaintiff clearly has at least one sibling, Paul White, who is listed as the son and next of kin of the decedent in the Coroner's report. It is unknown by defendant if the plaintiff has other siblings or if there are other persons with standing to bring suit in this wrongful death action.

In any event, the plaintiff should be ordered to identify all such persons who have standing to bring this wrongful death action. If such persons do not wish to join as plaintiffs, plaintiff Nancy White should be order to join the involuntary plaintiffs as defendants pursuant to C.C.P. §382.

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

Plaintiff's Complaint is Uncertain Because the Facts Support Only a Cause of Action for Professional Negligence and Not for General Negligence

California Code of Civil Procedure §430.10 provides, in pertinent part:

The party against whom a complaint ... has been filed may object, by demurrer ... to the pleading on any one or more of the following grounds:

(e) The pleading does not state facts sufficient to constitute a cause of action.
(f) The pleading is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible.

A demurrer may be taken to the entire complaint or to any of the causes of action stated in the complaint. Code Civ. Proc. §430.50. For the purposes of testing the sufficiency of the cause of action, the demurrer assumes all material facts alleged in the complaint to be true. Serrano v. Priest (1971) 5 Cal.3d 584, 591, cert denied, 432 U.S. 907. The function of a demurrer is to test the sufficiency of a complaint as a matter of law and it only raises questions of law. Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 611. A demurrer must be sustained if the complaint's cause of action is uncertain. Code of Civ. Proc. §§430.10(f).

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

LEGAL ARGUMENTS

Plaintiff's Complaint is Barred by the Statute of Limitations.

A complaint is subject to a demurrer under Code of Civil Procedure section 430.10, subparagraph (e), if the facts alleged in the complaint and matters of which the court is entitled to take judicial notice show the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995; Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The statute of limitations for medical malpractice claims is set out in Code of Civil Procedure §340.5. It provides, in pertinent part:

In an action for injury or death by a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through use of reasonable diligence should have discovered, the injury, whichever occurs first. C.C.P. §340.5.

The plaintiff's complaint does not specifically set forth the date of death of her mother; however, in each cause of action it is stated that the plaintiff was caused harm on September 27, 2007. The Coroner's Report states that Ms. Miller died on that date.

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

STATEMENT OF FACTS

Plaintiff Nancy White filed a complaint on April 27, 2009, alleging wrongful death relating to the treatment and care defendant provided to her mother and decedent, Alice Miller. According to plaintiff, defendant UMC's treatment at a cardiac catheterization laboratory and the patient's subsequent ICU admission to UMC resulted in plaintiff's mother's death on September 27, 2007.

Plaintiff alleges that she is the daughter of decedent. Plaintiff does not identify other heirs.

All five causes of action are titled "General Negligence," but based upon wrongful death allegations.

COMPLAINT ALLEGATIONS

Plaintiff's first cause of action alleges that UMC failed to provide the proper standard of care of surgical intervention and repair ; and that defendant failed to provide timely assistance to the medical emergency thereby not providing the proper standard of medical care for emergencies. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff's second cause of action sets forth additional theories. It is contended that UMC is legally obligated to provide adequate service providers, "and to provide adequate surgical staff to respond to STAT requests for assistance"; and to restrict the "permitted hours of operation to the times in which UMC has sufficient surgical staff to respond to STAT requests"; and that UMC's "surgical staff did not respond to three pages for STAT assistance in a timely fashion that meets [the] acceptable standard of care."

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/brain injury case and its proceedings.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant Universal Medical Center’s Memorandum of Points and Authorities in Support of Its Demurrer To Plaintiff’s Complaint

INTRODUCTION

The demurrer of Universal Medical Center ("UMC") to plaintiff's complaint and its five causes of action should be sustained without leave to amend for the following reasons:

Plaintiff's decedent died on September 27, 2007. Plaintiff's complaint was filed on April 27, 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.

Plaintiff's complaint sets forth five causes of action, all of which seem to be alleging various theories supporting the same tort; i.e., all five causes of action appear to be restated causes of action for wrongful death based upon medical negligence. Yet, all five causes of action are set out on the Judicial Council forms for General Negligence. Plaintiff cannot claim general negligence under the circumstances presented by the facts of this case.

Delaney v. Baker (1999) 20 Cal.4th 23, is cited extensively by Defendant. Unfortunately, it does not support Defendant. The decision specifically holds that medical malpractice and Elder Abuse are separate causes of action. After holding that the statute is ambiguous, the court held that "if the neglect is 'reckless' or done with 'oppression, fraud or malice,'" then the action falls within the scope of section 15657 and as such cannot be considered simply "based on ... professional negligence" within the meaning of section 15657.2. (Delaney at 28.) Plaintiff has pleaded that the failure to restrain and the failure to treat decedent in this matter was at least reckless.

The pleading standard has been met and defendants would have the court make a factual determination that the actions were not "reckless" at the pleading stage which is an improper request. Delaney is not a case that interprets the scope of pleadings. It is a decision that interprets the scope of the statute. It cannot be cited as setting forth pleading requirements as Defendant attempts in the Demurrer.

The result is relatively simple. Plaintiff is entitled to and does state a cause of action for Elder Abuse, whether the proof presented at trial is sufficient to take the damages outside of the scope of ordinary negligence (15610.57) and into the scope of enhanced damages (15657 and 15657.2) is a separate issue. However, Plaintiffs submit that sufficient facts have been plead to meet the pleading standards as to this damage issue.

THE MISINTERPRETATION OF THE COMPLAINT

Defendant argues that since there is insufficient pleading in Paragraphs 18-20 of the Complaint, the complaint must fail. This is the underpinning of the whole of the Demurrer and is wholly without merit. Defendant fails to cite Paragraph 17 of the Second Cause of Action which incorporates all of the facts plead in the first 16 Paragraphs. The argument is specious at best and justifies the court overruling the Demurrer without further consideration. The elements plead including the course of the care prior to death are provided in the earlier paragraphs.

STATUTORY ANALYSIS

Defendant bases the argument on Welfare and Institutions Code §§15657 and 15657.2 and ignore §15610 et seq. which define Elder Abuse itself. Plaintiff has met the pleading requirements of pleading Elder Abuse as defined by the code. Defendant is mixing an argument that the damages portion of the claim cannot be made on the facts pleaded, and further, defendant attempts to insert a requirement for pleading specificity as if there was a claim for punitive damages.

No such claim has been here made at this time as the interplay between C.C.P. §425.13 and the Elder Abuse statutes has not been litigated or established. Plaintiff fully expects to conduct the appropriate discovery and when sufficient data has been gathered move this court for leave to file an Amended Complaint setting forth claims for punitive damages against the appropriate defendants. (See Part 4 of 4.)

MEMORANDUM OF POINTS AND AUTHORITIES

BACKGROUND

Plaintiffs' decedent suffered a stroke in 2001. She was hospitalized through February 19, 2002 when she was transferred to Defendant Nationwide Skilled Nursing Facility with orders that Posey restraints be used in view of the loss of use of one side of her body and confusion which could result in injury. Defendant chose to ignore the orders and on her first night in the SNF decedent got out of bed apparently not remembering that she could not walk normally, fell and hit her head.

A staff person for Defendant SNF heard her fall and eventually went to check on her. She was found on the floor with a bruise/abrasion on her forehead. She was anti-coagulated to prevent further strokes and presented a clear risk of developing a sub-dural hematoma, a la Chick Hearn of the L.A. Lakers. The facility chose to do nothing until she was checked at about 7:00 in the morning and pronounced good. Finally, at about noon, when she started to present with severe problems showing loss of mental facilities Defendant decided that she should be sent to the hospital to be checked out.

It was too late, the sub-dural hematoma had grown to the point where it was not operable by the time decedent arrived at the hospital. The barn door had been closed after the animals had escaped. Decedent was, however, a strong person and managed to hold on at home in a severely debilitated state through her death on April 25, 2002.