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 trip and fall/personal injury case and its proceedings.)

When Plaintiff Judy Brown exited Macy's store, she was walking at a normal pace, and was looking straight ahead towards the location of her parked car. She was neither looking for nor apprehending the presence of a sidewalk defect as she was walking, according to Ms. Brown’s declaration.

As a result of this accident, caused by the negligence of Defendants, Plaintiff Judy Brown suffered, inter alia, fractures of her right wrist and right knee. To date, she continues to experience significant pain and physical limitations because of these injuries.

With respect to Defendant Universal Mall’s Summary Judgment Motion, it should be noted by the court that Macy's is also named as a defendant in this action. It has not joined Defendant Universal Mall’s Motion For Summary Judgment. Macy’s filed its answer to the complaint on or about July 23, 2009. Also, Mall Associates, the owner of the Mall, has been named as a "DOE" defendant, and service is currently being attempted on that Defendant.

In regard to Defendant Universal Mall’s motion, as explained below, there are genuine triable issues of material fact sufficient to justify this court's denial of the motion.

ARGUMENT

A TRIABLE ISSUE OF FACT EXISTS AS TO WHETHER A TRIVIAL DEFECT CAUSED PLAINTIFF'S TRIP/FALL ACCIDENT

In support of its motion, Defendant Universal Mall argues that the sidewalk defect which caused Judy Brown to trip and fall was a trivial, one-half inch, upraised, portion of sidewalk.

Continue reading "Defect In Sacramento Mall Sidewalk Results In Fall, Part 2 of 9" »

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

Plaintiff Judy Brown's Memorandum of Points and Authorities in Opposition to Defendant Universal Mall's Motion for Summary Judgment

STATEMENT OF FACTS

Plaintiff Judy Brown and her husband, Kenneth, residents of Sacramento, California, went to Universal Mall, a shopping center located in Sacramento, California, on March 14, 2007. After parking their car in the "B" lot of the Mall, they entered the Macy's store. After approximately two hours of shopping, Plaintiff's husband, Kenneth, decided to return to the car to wait for his wife. When Plaintiff Judy Brown finished her shopping, she exited Macy's, from the Home Furnishings door, and began walking on the sidewalk adjacent to the store. While walking, she tripped and fell because of a defect in the sidewalk, to wit: a gap and upraised portion on the sidewalk. Photographs depicting the gap and upraised portion of the sidewalk were taken by her husband, Kenneth, and are attached to his Declaration as Exhibits 1 and 2, and are incorporated herein.

At her deposition, Plaintiff Judy Brown mistakenly testified that the upraised portion of sidewalk was one-half inch in height. It's height is actually 1" high (See Plaintiff's Declaration, at Paragraph 6; also see photographs attached as Exhibits 1 and 2 to the Declaration of Kenneth Brown).

Further, Plaintiff Judy Brown was not asked any questions about the "gap" in the pavement

Continue reading "Sacramento Woman Trips And Falls At Mall, Part 1 of 9" »

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

In Mock v. Mich. Millers Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 328, an insurance bad faith case, the court said the following with regard to punitive damages:

Even before the 1987 amendments, the courts articulated a standard for the proof of malice where, as here, no intent to harm is claimed. Such malice "implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others." In Dean Prosser's words: "Where the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action punitive or exemplary damages .... Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton."

CACI 3540 defines despicable conduct as "... conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people." Again, this also has to be shown by clear and convincing evidence.

For plaintiff to prevail there must be evidence that the defendants' employees, acted with malice as defined by Civil Code §3294, and that said malice was ratified by a managing agent, or that the managing agents themselves acted with malice. Further, plaintiff's must have evidence that rises to the level of clear and convincing evidence. For corporate defendants like Universal and MC, the evidence must show that a managing agent of the defendant is culpable. In White v. Ultramar (1999) 21 Cal.4th 563, 577 the Supreme Court said:

Continue reading "Sacramento Nurses And Doctors Sued For Elder Abuse, Part 11 of 11" »

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

PUNITIVE DAMAGES

Civil Code §3294 is the statutory authority for a claim for punitive damages. This statute states:

(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

Plaintiff alleges "Defendants" acted maliciously toward her with specific intent to cause injury, and as such, their conduct was despicable, and carried out with a willful and conscious disregard of the rights of plaintiff. She also alleges "Defendants" acted in a way which was fraudulent malicious and/or oppressive. It is unclear if plaintiff alleges the employees of defendants acted with malice, or if the corporate managing agents themselves did. (See Part 11 of 11.)

Continue reading "Medical Malpractice By Sacramento Physicians Leads To Elder Abuse Suit, Part 10 of 11" »

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

Plaintiff will not be able to state a prima facie case of neglect by clear and convincing evidence. With regard to plaintiff's pressure sore, it started out as a friction or shear injury that occurred during a transfer to or from her bed. Plaintiff's expert will opine it occurred when plaintiff was getting occupational therapy. There can be no possible argument to equate this injury with the level of conduct necessary to entitle plaintiff to punitive damages. Such injuries can and do happen in hospitals, particularly with obese, totally dependant patients such as plaintiff.

The expert testimony at trial, and opinions of the treating physicians at the time, will that the worsening of the initial injury was a function of plaintiff's underlying medical condition. Plaintiff's experts have conceded this. Plaintiff will not be able to show, by clear and convincing evidence, that any of the alleged negligence that occurred after the initial injury caused further harm.

Similarly, the events of October 10, 2006, cannot equate with elder abuse. Plaintiff's claim of inadequate monitoring cannot rise to the level of reckless or conscious disregard of plaintiff's safety; prospectively there was no way any of the staff could have known how long it would take for the transport department to transport plaintiff back to her room. Further, the nurse who was caring for plaintiff exercised his judgment in addressing her blood pressure; he did not neglect her. Plaintiff's liability theories are based upon a retrospective analysis together with assumptions unsupported by the evidence. The argument that the should have called a physician, or that he should have taken other measures to address plaintiff's blood pressure cannot satisfy what is required to establish a prima facie case of elder abuse by clear and convincing evidence.

Continue reading "Sacramento Family Seeks Punitive Damages For Elder Abuse, Part 9 of 11" »

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

In Delaney the court went on to explain the difference between what could constitute professional negligence, as opposed to the type of neglect required to establish elder abuse, as follows:

This difference in focus can be clarified by considering the differing types of conduct with which section 15657 and MICRA are concerned. As discussed, section 15657 concerns "neglect," "physical abuse," and "fiduciary abuse." Former section 15610.57 defines neglect as the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care which a reasonable person in a like position would exercise. Neglect includes, but is not limited to, all of the following: (a) Failure to assist in personal hygiene, or in the provision of food, clothing or shelter. (b) Failure to provide medical care for physical and mental health needs. (c) Failure to protect from health and safety hazards. (d) Failure to prevent malnutrition. Thus, neglect within the meaning of former section 15610.57 appears to cover an area of misconduct distinct from "professional negligence."

In section 15657.2: "Neglect," as defined in former section 15610.57 and used in section 15657, does not refer to the performance of medical services in a manner inferior to "the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing" (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal. 4th at p. 998), but rather to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. It is instructive that the statutory definition quoted above gives as an example of neglect not negligence in the undertaking of medical services but the more fundamental [f]ailure to provide medical care for physical and mental health needs. (20 Cal.4th, at p. 34.)

Continue reading "Negligent Care By Sacramento Results In Elder Abuse, Part 8 of 11" »

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

Neglect

Welfare & Institutions Code § 15610.57 defines the term neglect in the context of elder abuse as follows:

(a) Neglect means either of the following:
(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.
(b) Neglect includes, but is not limited to, all of 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. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.
(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

In Delaney v. Baker (1999) 20 Cal.4th 23, the Supreme Court addressed the difference between professional negligence and elder abuse in the context of neglect. The issue in Delaney v. Baker was whether the heightened remedies of the Elder Abuse Act could be obtained in an action against a health care provider. While the court held elder abuse could be alleged against a health care provider, the court also held the statutory framework of Welfare & Institutions Code § 15600 should not apply to situations involving mere professional negligence; the Supreme Court held something more egregious is necessary:

Continue reading "Sacramento Family Sues Local Hospital For Elder Abuse, Part 7 of 11" »

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

Elder Abuse Remedies

The remedies available for elder abuse claims are listed in Welfare & Institutions Code § 15657, which states:

Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:

(a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term "costs" includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.

As set forth in the statute, plaintiff's burden of proof in seeking heightened remedies under the Elder Abuse Act is that of clear and convincing evidence. This burden of proof applies to liability, and causation. In Perlin v. Fountain View Management (2008) 163 Cal.App.4th 657, 664 the court said:

Continue reading "Negligence By Sacramento Physicians In Local Hospital, Part 6 of 11" »

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

CAUSATION MUST BE PROVEN TO A REASONABLE MEDICAL PROBABILITY

One of the essential elements of plaintiff's claim is causation. Assuming She is able to meet his burden of proving there was a breach of the standard of care, or elder abuse, she must then show any such breach was a cause of his injuries. As the court said in Budd v. Nixen (1971) 6 Cal.3d 195,200:

If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm--not yet realized--does not suffice to create a cause of action for negligence.

In the context of a personal injury action, causation must be proven within a reasonable medical probability. The reason for this was explained by the court in Brown v. Ortho Pharmaceutical Corp. (1985) 163 C.A.3d 396, 402-403:

The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [citations omitted] That there is a distinction between a reasonable medical "probability" and a medical "possibility" needs little discussion. There can be many possible "causes," indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.

Continue reading "Medical Malpractice And Elder Abuse By Sacramento Doctors, Part 5 of 11" »

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

The dialysis concluded at 5:42. Mr. Reed initially got a BP of 90/21, but checked it again and it was 90/37. A total of 1.9 liters of fluid had been removed during dialysis. While plaintiff's dialysis was completed at 5:42, she was not transported back to her room on the fifth floor until after 7:00 p.m. During the wait, however, she remained on a monitored bed in the dialysis unit with the blood pressure and heart rate monitors attached. Both of these monitors have alarms that will go off if the values drop below acceptable limits. The undisputed evidence is that the monitor alarms did not go off while plaintiff was awaiting transport.

According to the nursing notes, plaintiff returned to her room at 7:20. Her nurse was Jean King, also an ACES replacement nurse. Upon arrival her BP was 121/44, and her HR was 105. She also had a respiratory rate of 28. The nurse assigned to plaintiff was just coming on shift. She was concerned about plaintiff's appearance, and asked the charge nurse to evaluate her. Supplemental oxygen was given, and over the next 30 minutes her vitals signs were monitored.

Her condition started to worsen, and then she suddenly experienced a respiratory arrest. A code blue was called, and by the time the responding physician arrived she had no pulse or spontaneous respirations. She was receiving CPR, and being ventilated by the nurses. As he assessed her, however, she suddenly had a spontaneous return of her heart rate. His evaluation of her airway revealed the presence of gastric contents, suggesting an aspiration.

Continue reading "Wrongful Death At Sacramento Hospital, Part 4 of 11" »

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

Evening of October 10, 2006

October 10, 2006 was the first day of a strike at the two MC hospitals. As required under the Labor Code, MC was given 10 days notice of the strike. In anticipation of the strike a contract was entered into with Arizona Clinical Employment Staffing, a company that supplies traveling nurses. ACES is owned and operated by nurses, and over the next 10 days ACES and MC worked closely to come up with a list of suitable replacement workers. Over 500 replacement workers were hired to cover Medical Center in Sacramento.

One of the nurse hired through ACES was Jim Reed. The evidence at trial will show that Mr. Reed is an experienced ICU and dialysis nurse who works regularly at a large teaching hospital. On October 10, he was one of two replacement nurses assigned to the dialysis unit. Plaintiff was scheduled for dialysis that day, and Reed was the nurse who cared for her in the dialysis unit.

According to the records plaintiff started dialysis at 2:47 p.m.. The initial set of vital signs were BP 107/58 and HR 89. The protocol in the unit was to document vitals every 30 minutes. The next set, at 3:17, was BP 84/38 and HR 91. According to the chart, Mr. Reed immediately turned off the ultra-filtration function of the dialysis machine. Ultra-filtration refers to the process of removing fluid during dialysis. It is very common for patient's to drop their blood pressure during dialysis, especially if the orders are to reduce fluid. When fluid is removed from the circulation there is necessarily a drop in the blood volume, and a corresponding drop in blood pressure.

Continue reading "Elderly Patient Dies At Sacramento Hospital, Part 3 of 11" »

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

The Pressure Sore

On August 17, 2006, the plaintiff was evaluated by Kim White R.N., the MC wound care nurse. Ms. White noted that plaintiff developed a skin breakdown at the area of her coccyx. It was measured as 4 x 3 cms, and the skin was fragile and discolored. Ms. White thought the wound was due to shearing; i.e., from friction while being moved.

Over the next week, the nursing staff continued to turn plaintiff every two hours, and followed the care ordered by the physician (as recommended by Ms. White). However, because of her poor underlying condition, and multiple co-morbidities, the plaintiff's wound became a pressure sore. By August 23, 2006, the wound had progressed to a Stage III, and by this point was 8 cm. x 10 cm. large.

While plaintiff was not going to go to acute rehabilitation, the hope was that she could be discharged to a skilled nursing facility. However, for her to be able to do so she needed to be able to tolerate out-patient dialysis. For her to be able to do this she needed to be able to sit for three hours at a time. This was something she was never able to do.

In terms of plaintiff's neurologic status, it remained guarded. On September 27, 2006, she had a swallowing evaluation. She was found to be at high risk for aspiration, and it was recommended that she not be given anything orally.

Continue reading "Sacramento Hospital Patient Sues For Elder Abuse, Part 2 of 11" »

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

INTRODUCTION

This is an action for professional negligence, and ostensibly, for elder abuse, with a claim for punitive damages. The plaintiff, Allison Brown, has brought this action through her daughter and guardian ad litem, Nancy Smith. The defendants are Medical Center, Inc. (hereinafter "MC") and Universal Health. This action arises from care and treatment provided to Ms. Brown at MC, where Ms. Brown is still a patient.

This case involves two allegations: negligent care resulting in the development of a pressure sore, and an alleged failure to monitor on October 10, 2006, leading to a respiratory arrest.

FACTS

On July 25, 2006, plaintiff Allison Brown was brought by ambulance to the ER at the Campus of MC. She had been undergoing dialysis when her family noticed that she was unable to speak, and it was noted that she had right-sided deficits. She arrived at 1645 that day, and at 1700 was being evaluated by the ER physician. She was alert and intermittently verbal, and had an abnormal neurologic examination, including an inability to move her right arm or either leg. A stat CT was ordered. It revealed the presence of an old right frontal lobe infarct (i.e. an old stroke). She was also determined to have had a new stroke. The plan was to admit her to the hospital and to provide supportive care and further evaluate her condition.

On July 26, 2006 the initial nursing assessment was done of the plaintiff. At the time of her admission she was noted to have redness on her right buttock. She was also non-verbal by this point, and had a left facial droop. She was also seen by neurologist Joan Green M.D. on July 26. Dr. Green noted the plaintiff's ability to speak had deteriorated since the day before, and when she saw plaintiff she was nonresponsive, and did not follow commands. She suspected a left hemisphere stroke, and recommend a MRI and carotid ultrasound.

Continue reading "Sacramento Elder Abuse Leads To Lawsuit, Part 1 of 11" »