Sacramento Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse 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.

(2) Defendants' Nurses Notes were charted inaccurately or the nurse completely failed to perform any charting whatsoever (both serious breaches of the applicable regulations since the absence of any charting is absolute and unequivocal evidence of neglect) (FAC, para. 29);

(3) Defendants' failed to order a speech therapist or speech language pathologist evaluation (an intentional violation of the regulations) for Abbey on or about April 8, 2008, when they knew that she was not swallowing and had lost considerable weight (inability to swallow and substantial weight loss are both changes of condition, both of which required notification to Abbey's family and physician so that these issues could be addressed) (FAC, para. 31); also, a nursing facility must ensure that a resident receives prescribed therapies, including physical therapy, occupational therapy, and speech therapy. 42 CFR § 483.45; For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(4) Abbey's inability to swallow and/or her delayed swallowing should have been critically important warning signs of dehydration, which Defendants recklessly ignored causing her swallowing problems to worsen (FAC, para. 32);

Continue reading "Neglect By Sacramento Nurses And Staff Result In Actionable Elder Abuse, Part 7 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse 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.

The Elder Abuse Cause of Action in Plaintiffs' FAC is Well Pled

In their Demurrer, Defendants haphazardly assert that Plaintiffs claim for elder abuse simply fails to plead facts sufficient to constitute a viable claim. However, in asserting this baseless accusation, Defendants ignore the 30-plus paragraphs of detailed factual allegations which make up the factual basis for Plaintiffs' elder abuse cause of action. In fact, Plaintiffs' FAC provides Defendants with more detail than is required by the code. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The issue here is whether or not Plaintiffs have provided Defendants with sufficient facts such that Defendants are apprised of the basis upon which Plaintiff are seeking recovery. Clearly, Plaintiffs have provided Defendants with more than a sufficient factual basis of the claims against them, including a clear picture of the multiple acts and omissions by Defendants constituting elder abuse. Specifically, Plaintiffs have alleged copious facts in their FAC that clearly elucidate specifically how Defendants' recklessly neglected Abbey and how they caused her senseless death, including but not limited to all of the following:

Continue reading "Numerous Elder Abuse Code Violations Cause Sacramento Patient's Death, Part 6 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse 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.

"Recklessness" Under the Elder Abuse Act

Once neglect is satisfactorily pled, the next question become whether Plaintiff has pled factual allegations that support a claim that the alleged neglect amounted to recklessness (i.e., a conscious disregard of rights or safety), oppression, fraud, or malice, which would then entitle Plaintiffs to the heightened remedies available under the Elder Abuse Act. Defendants claim that Plaintiffs have not pled sufficient facts showing intentional conduct. (Demurrer, 6:24 - 26.) However, a showing of intentional conduct is not required to state a claim for elder abuse. The term recklessness, which can be a species or quality of negligence, is not an intentional tort. California Elder Law Litigation: An Advocate's Guide, § 2.44. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Delaney v Baker (1999) 20 Cal.4th 23, 31, the California Supreme Court explained that recklessness under the Elder Abuse Act refers to a subjective state of culpability greater than simple negligence, which has been described as deliberate disregard of the high degree of probability that an injury will occur [citing BAJI 12.77 (defining recklessness in the context of an intentional infliction of emotional distress action)]. (See California Elder Law Litigation: An Advocate's Guide, § 2.44.) For purposes of the Elder Abuse Act, California Civil Jury Instruction ( CACI ) 3113 has adopted that standard, stating that a defendant acts with recklessness if he or she knew it was highly probable that [his or her] conduct would cause harm and [he or she] knowingly disregarded this risk, and that recklessness is more than just the failure to use reasonable care. Id.

Continue reading "Sacramento Woman Subject To Reckless Conduct At Nursing Facility, Part 5 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse 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.

Under the Elder Abuse Act, "Neglect" Constitutes Abuse of an Elder

The purpose Welfare and Institutions Code Section 15610.07 (which is part of the broader legislation commonly referred to as "the Elder Abuse Act” aka “EADACPA") is essentially to protect the elderly, a particularly vulnerable portion of our society, from gross mistreatment in the form of abuse and custodial neglect. Delaney v. Baker (1999) 20 Cal.4th 23, 33. The Elder Abuse Act provides that "[a]buse of an elder" means either: (a) Physical abuse, neglect, ... abandonment, ... or other treatment with resulting physical harm or pain or mental suffering; or (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

"Neglect" is Broadly Defined in the Elder Abuse Act

The statutory definition of neglect is set forth in Section 15610.57(b) of the Elder Abuse Act, which provides that [n]eglect includes, but is not limited to, all the following: (1) failure to assist in personal hygiene or in the provision of food, clothing, or shelter; (2) failure to provide medical care for physical and mental health needs; failure to protect from health and safety hazards; or (3) failure to prevent malnutrition or dehydration, (Emphasis added.)

Continue reading "Elder Abuse At Sacramento Nursing Home Results In Death, Part 4 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse 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.

The pleading requirements for elder abuse actions was addressed in the leading treatise on elder abuse, California Elder Law Litigation: An Advocate's Guide, § 6.40:
[t]o survive a challenge by a defendant, the plaintiff's complaint must be pleaded with sufficient clarity to provide the defendant with clear notice of the plaintiff's claim. The facts of the defendant's conduct as pleaded must meet the requirements in CC § 3294.

To determine whether the facts as pleaded in an elder abuse complaint describing the defendant's conduct satisfy the minimum statutory requirements of malice, oppression, or fraud, a Court must read the challenged allegations within the context of other facts alleged in the complaint. Even when a complaint pleads ultimate facts or conclusions of law, if it also contains specific allegations of acts attributed to the defendant showing the requisite evil motive, the complaint may survive a demurrer or motion to strike. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Accordingly, what is required by California law for a civil complaint is a statement of the facts pled with sufficient clarity so as to provide Defendant with clear notice of Plaintiffs' elder abuse/neglect cause of action, in ordinary and concise language. Plaintiffs' FAC clearly satisfies the above-mentioned requirements.

Continue reading "Sacramento Skilled Nursing Facility Concealed Fraudulent Patient Care, Part 3 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse 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.

DISCUSSION

The Legal Standard on Demurrer

A demurrer tests the sufficiency of the pleadings, the allegations of which must be accepted as true by the court for purposes of review. Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1231. [I]t is error for a court to sustain a demurrer where the allegations adequately state a cause of action under any legal theory. (Ibid.) The complaint in a civil action serves a variety of purposes, including to frame and limit the issues and to apprise the defendant of the basis upon which the plaintiff is seeking recovery. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In ruling on a demurrer, the trial court is required to construe the complaint liberally with a view to substantial justice between the parties. Code of Civil Procedure § 452; Cameron v. Wernick (1967) 251 Cal.App.2d 890. A demurrer will not be sustained unless the complaint, liberally construed, fails to state a claim on any theory. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.

The Legal Standard for Pleadings in Elder Abuse/Neglect Cases

The applicable code section pertaining to the pleading requirements for civil actions is Section 425.10, which provides:

Continue reading "Sacramento Woman Dies In Negligent Local Nursing Facility, Part 2 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse 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.

Plaintiffs' Abbey White, Olivia Lee, and Owen White's Opposition to Universal Care of Sacramento and Aging Care’s Demurrer to Plaintiffs' First Amended Complaint

Plaintiffs Abbey White ("Decedent" or "Abbey"), by and through her successor-in-interest Olivia Lee, Decedent's daughter Olivia Lee, and Decedent's son Owen White (collectively "Plaintiffs"), respectfully submit the following opposition to defendants Universal Care and Aging Care’s (collectively "Defendants") Demurrer to Plaintiffs' First Amended Complaint ("FAC").

INTRODUCTION

Defendants' contend in their demurrer that the first four causes of action of Plaintiffs' FAC [i.e., Elder Abuse; Violation of Patients Bill of Rights; Concealment; and Negligent Infliction of Emotional Distress ("NIED")] fail to state sufficient facts and/or is otherwise uncertain. However, Defendants' contention is entirely without merit as the FAC contains some 27 paragraphs of detailed factual allegations which clearly apprise Defendants of the claims against them, as required by the Code of Civil Procedure. In fact, the factual allegations contained in the FAC go much further than simply appraising defendants of the claims against them, they actually set forth in detail the multiple acts and omissions which comprise the reckless neglect. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In fact, in paragraphs 24 through 50, Plaintiffs alleged, in considerable detail, the key factual allegations that clearly demonstrate that Defendants' reckless neglect of Abbey resulted in her senseless death.

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Continue reading "Sacramento Family Sues Nursing Facility For Mother's Death, Part 1 of 12" »

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 car accident case and its proceedings.)

ONLY RELEVANT EVIDENCE IS ADMISSIBLE FOR ANY PURPOSE.

For all of the above reasons, such testimony and evidence is also irrelevant. Relevant evidence is that which has any tendency in reason to prove or disprove any disputed fact that is of consequence to determination of the action. (Evidence Code §§210, 780, 1202.) No evidence is admissible except relevant evidence. (Evidence Code §350.) Testimony about these supposed standards and practices for police accident-reporting have no application to determine if the subject accidents in this matter are a singular event or multiple events. These standards merely serve to provide guidelines to officers in their report writing duties. These standards were not developed for the purpose that plaintiff and his expert proposed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

POLICE ACCIDENT REPORTING STANDARDS ARE AN ISSUE OF LAW AND INTRODUCTION OF SUCH EVIDENCE IS UNDULY PREJUDICIAL

An experts testimony on an issue of law is not admissible, including an application of law to facts. The experts testimony on these matter usurps the judges and jurys responsibilities. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155 (expert opinion on the legal question of duty was not admissible.)

Continue reading "Sacramento Car Rental Company Sued After Accident With Bus, Part 4 of 4" »

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 car accident case and its proceedings.)

This case arises from two consecutive accidents involving the same bus, one at the intersection of Seminary and International involving the Universal vehicle, and one half a block away where the bus was driven into several residences across the street. Setting aside the issue of relative liability on the part of both drivers, the fact that only one police report was generated for both accidents is not probative of whether one or more accidents occurred. It is determinative that there was a relationship between the two accidents, as they both involved the same bus and that they were consecutive in time. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Evidence Code section 352 gives the court discretion to exclude evidence if its admission will necessitate the undue consumption of time, or if its probative value is substantially outweighed by a substantial danger of undue prejudice, confusion of issues and misleading the jury. (Evidence Code §352.) Defendants respectfully request that any evidence of or reference to police accident report writing standards as determinative of the status of the accident as a singular event is only intended to mislead and prejudice the jury, and should thus be prohibited from mention.

Continue reading "Bus Versus Car Accident Leaves Sacramento Man Catastrophically Injured, Part 3 of 4" »

http://www.moseleycollins.com/lawyer-attorney-1245027.htmlThe 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 car accident case and its proceedings.)

THE TRIAL COURT POSSESSES THE INHERENT POWER TO GRANT MOTIONS IN LIMINE AND SUCH MOTIONS ARE A WELL ESTABLISHED METHOD OF EXCLUDING INADMISSIBLE EVIDENCE

Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.

A MOTION IN LIMINE MAY BE USED TO EXCLUDE ANY EVIDENCE TO WHICH COUNSEL COULD OBJECT AT TRIAL IS IRRELEVANT OR IS SUBJECT TO THIS DISCRETIONARY EXCLUSION BECAUSE OF ITS UNDULY PREJUDICIAL EFFECT

Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.

THE COURT SHOULD EXCLUDE EVIDENCE THE PROBATIVE VALUE OF WHICH IS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICIAL IMPACT OR HAS THE RISK OF MISLEADING OR CONFUSING THE JURY

Pursuant to Evidence Code section 352, the Court should weigh the probative value of proffered evidence against the probability that it will create a substantial danger of undue prejudice. (People v. Murphy (1979) 8 Cal.3d 359.) If the Court finds that the probative value of the proffered evidence is weak and a danger of undue prejudice is strong, then it should rule that such evidence is inadmissible. (People v. Stanley (1967) 167 Cal.2d 812.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Police Reports Play Big Role In Sacramento Bus Accident Lawsuit, Part 2 of 4" »

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 car accident case and its proceedings.)

Defendants Clive White and Universal Rental Car’s Motion in Limine to Exclude Reference to Police Accident Report Writing Standards

Defendants Clive White and Universal Rental Car hereby move this court, in limine, before jury selection at the trials commencement for an order instructing plaintiff, his counsel, and each and every one of plaintiffs witnesses, not to mention, interrogate on, or in any other manner, convey to the jury whether during voir dire, opening statement, testimony, final argument, or otherwise, any reference to or evidence of police accident report writing standards as evidence that the two consecutive bus accidents that are the subject of this litigation actually constituted a single event.

It is anticipated that plaintiff and his experts will reference police accident report writing standards as evidence for his contention that the bus accident at the intersection of Seminary and International involving defendants vehicle and the following bus accident half a block away in which the bus ran into residences across the street, were a single event caused exclusively by defendant Williams. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

One of plaintiffs accident reconstruction experts referenced CHP accident reporting standards to support his opinion that these bus accidents constitute a single event. Defendant contends that these were two separate accidents albeit they were consecutive and that they both involved the same bus.

Continue reading "Sacramento Man Files Lawsuit Against Bus Company For Accident, Part 1 of 4" »

The following blog entry is written from a defendant’s position post-verdict. 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 car accident/bus accident case and its proceedings.)

Plaintiff's own medical expert, Dr. Levine, testified that the basis for his opinion (of injury) was only as good as the facts upon which they were based, i.e. the history and reports provided by plaintiff. As indicated above, plaintiff's reporting was replete with distortions and omissions, including but not limited to her failure to reveal to Dr. Levine a subsequent trip and fall for which she sought treatment with a chiropractor for four months. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Finally, plaintiff walked with a prominent limp in front of the jury at all times during the six-day trial. She testified that her limp was always present, both in and out of the courtroom. She was then directly impeached with videotape, shown to the jury, depicting her walking freely and uninhibited, without a cane, just days before the trial commenced. Even without all the additional evidence as discussed above, the video evidence alone was a sufficient basis on which to conclude that plaintiff was not credible and was not truthful in claiming injury in this case.

After hearing all evidence discussed above, the jury held that plaintiff had sustained no injury as a result of the negligence of defendants. California law requires that, in order to grant a judgment notwithstanding the verdict, there must be "no evidence of sufficient substantiality to support a verdict" rendered by the jury.

Continue reading "Court Must Evaluate Evidence In Sacramento Car Accident Case, Part 9 of 9" »