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 elder abuse and personal injury case and its proceedings.)

In ruling on defendants' initial demurrer to the original complaint as to the NIED claim, the Court sustained the demurrer with leave to amend to allege more specifically the conduct the plaintiff contemporaneously observed and the specific resulting injuries that cause plaintiff's emotional distress. The plaintiff has cured this defect in her First Amended Complaint:

53. When Debra White was advised of the plan be defendant to discharge Harry White from Herrick Rehabilitation to their home, Debra White expressed concerns to nursing staff at Herrick that Harry White, because of his bowel impaction, multiple uncontrolled watery stool, severe wound and general weakness, was not in a condition to go home. Her concerns were responded to by advice that Mrs.White should obtain training and take care of Harry White at home.

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

Mrs.White believed that the decision to discharge her husband was wrong and not in his best interest, but acceded to the recommendation of Harry White’s physicians and nurses because she felt she had no choice. Thus, she did experience and appreciate the wrongfulness of defendants' conduct and contemporaneously witnessed the injury and damage to her husband at their home and thereafter as a direct result of defendants tortuous conduct.

Mrs. White also properly alleges a bystander cause of action for NIED against National VNA. The Complaint alleges that she witnessed the conduct of defendant in that its nurses came to her home, saw the condition of Mrs. White and her husband, and breached its duty to provide proper care to Mr. White by failing to take immediate steps to have him rehospitalized.

Continue reading "Medical Malpractice By Sacramento Nursing Facility Causes Patient's Death, Part 10 of 10" »

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

The Fifth Cause of Action Properly Alleges A Cause of Action For Negligent Infliction Of Emotional Distress

Debra White, as an alternative claim to the intentional infliction of emotional distress cause of action, asserts a claim for negligent infliction of emotional distress.

One of the bases for a "direct victim" claim for NIED is the negligent breach of a duty arising out of a pre-existing relationship. Burgess v. Superior Court (1992) 2 Cal. 4th 1064 is the controlling authority on that cause of action. In that case, a mother was permitted to bring an action for NIED when her fetus was allegedly injured by negligence during delivery. The Court reasoned that there was a preexisting relationship between the mother and the defendant physician such that a duty of ordinary care flowed from the physician to the mother.

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

The facts alleged in the Fifth Cause of Action allege an analogous cause of pre-existing relationship. It is clearly asserted that defendants undertook to encourage Mrs.White to agree to discharge her husband based upon representations, which were without basis, that he could be cared for at home as long as she was trained. The defendants then undertook to "train" Mrs. White for this task.

Continue reading "Emotional Distress Claim Included In Sacramento Elder Abuse Lawsuit, Part 9 of 10" »

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

The Fourth Cause of Action For Intentional Infliction of Emotional Distress Brought By Plaintiff Debra White Has Been Properly Pleaded.

As discussed in the Introduction, supra, the Court, on ruling on a previous demurrer, stated that, with further delineation of the specific conduct of each defendant, a cause of action for intentional infliction of emotional distress could be stated, as the conduct described appears to be "sufficient to constitute outrageous conduct ..."

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

The Fourth Cause of Action incorporates the specific allegations against each defendant which are set out in the previous three causes of action including their participation in the decision to discharge Mr. White and leave his care to his wife at home. It then alleges that all of the defendants who participated in the decision to discharge Mr. White to his home knew of the susceptibility and vulnerability of Debra White to sustaining emotional distress. It is alleged that they were further aware that, in view of Mr. White's severe medical problems, Mrs. White was incapable of providing extensive nursing and care services her husband required and that even her best efforts in that regard would result in Harry White suffering a decline in his skin condition, bowel status, nutrition, and well-being.

National VNA, it is alleged, saw the condition of Mr. White in his home and saw how helpless Mrs. White was to adequate care for his Stage IV pressure ulcer, uncontrolled diarrhea, dehydration and malnutrition.

Continue reading "Malnourished Sacramento Man Dies Of Elder Abuse, Part 8 of 10" »

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

The Third Cause of Action Properly Sets Out A Claim For Reckless Neglect Of An Elder By National

The Third Cause of Action is brought against National VNA as a result of its neglect of Mr. White in accepting him for home care and perpetuating his inadequate care at home by doing nothing to intervene on his behalf. The allegations are these:

40. Due to the aforementioned neglect of defendants described hereinabove, Harry White was at his home from March 27, 2008 until April 4, 2008, and was steadily declining and suffering from inadequate care, despite the best efforts of his wife to care for him.

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

41. During the approximately one week Harry White was at home, agents and employees of defendants National, National VNA and DOES 131 to 150 came to the home of Harry White and Debra White on one occasion and observed his critically compromised condition, including the Stage IV pressure ulcer, uncontrolled diarrhea and wasting state which he Was in. Said defendants knew or should have known that Harry White was unable to be cared for at home and required the care of a 24-hour care facility and knew that Debra White could not care for her husband's needs. With this knowledge, said defendants had a duty to recommend and facilitate Harry White' transfer to a proper care facility and notify his physicians of the inadequacy of his circumstances at home. Knowing that Harry White would continue to suffer deterioration of his condition if he remained in his home, said defendants made the conscious decision to allow him to remain at home, knowing that his care would be inadequate and substandard. In particular, defendants knew that Debra White could not properly change the dressings on the Stage IV ulcer as required because the area was constantly moist from the uncontrolled diarrhea.

Continue reading "Reckless Neglect Of Elder At Sacramento Skilled Nursing Facility, Part 7 of 10" »

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

Paragraph 24 sets out allegations of further egregious neglect by defendant Universal. It is alleged that, by March 27, 2008, the defendant knew that Mr. White was suffering from a constellation of severe medical problems, substantially caused by defendants' own neglect. These included a severe bowel impaction which resulted in frequent episodes of liquid feces soaking his bed and a Stage IV pressure ulcer which required frequent dressing changes and assessment and which was difficult to keep dry because of the effects of the impaction. Mr. White required repositioning every two hours because of the presence of the ulcer, frequent diaper and linen changes and nutritional and hydration support, all of these made more problematic by his weakness and orthopedic injury.

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

Paragraph 24 also alleges that Universal knew that Mr.White required consistent skilled care for these conditions and that he could not be adequately cared for at home with these conditions, particularly since the care giver at home would be his wife, then aged 75 years, with no medical training. It is alleged that Universal had a duty to Mr. White to assure that he continued to receive proper skilled care, but that Universal, with reckless indifference, planned for and encouraged Mr. White to be discharged to his home, where Universal knew he would not receive the care he needed. When Mr. White was discharged home to be cared for by his wife, the foreseeable outcome occurred: his condition deteriorated, causing him unnecessary pain and physical and emotional distress.

Continue reading "Sacramento Family Sues For Egregious Neglect Of Elderly Parent, Part 6 of 10" »

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

Paragraph 17 in detail sets out a similar pattern of medical neglect with respect to Mr. White's bowel status. It is alleged that Mr. White was at risk for impairment of bowel function because of age, poor nutrition, bed bound status and medication effects. Mr. White was not documented as having a bowel movement for 13 consecutive days while under the care of defendants. It is alleged that no report was made to Mr. White's physicians as to this circumstance. Paragraph 17 asserts that as a result of this prolonged neglect by multiple Universal staff members, Mr.White developed constipation leading to bowel impaction. The bowel impaction, it is alleged, negatively affected Mr. White's appetite, thus contributing to malnutrition and skin breakdown.

Paragraph 17 clearly charges that Mr. White was wrongfully discharged by Universal on March 27, 2008 with a worsening bowel impaction due to the institutional indifference of defendants. Again it is alleged that the Director of Nursing and other managerial agents of Universal knew of the lack of competence and attention in this regard by staff members since they were charged with assessing that the staff was properly trained, assessed, and supervised. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Paragraph 18 of the First Cause of Action sets out clear allegations of actionable neglect against Universal in connection with the failure to protect Mr. White from mechanical falls. Again it is alleged that Mr. White was known to be a high fall risk, primarily because he had undergone, during his hospitalization, orthopedic surgery.

Continue reading "Reckless Neglect Of Sacramento Man Leads To Elder Abuse, Part 5 of 10" »

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

Physicians and other health care providers, as well as hospitals, can be held liable under the Elder Abuse statutes. That was the holding in Mack v. Soung (2000) 80 Cal.App. 4th 966. Such persons have care and custody of an elder within the meaning of the Elder Abuse statutes when they undertake to care for an elder. The Court summed up its holding as follows:

"Delaney establishes that health care providers are not exempt from liability for reckless neglect simply because the cause of action arises from the rendition of health care services."
Mack v. Soung, supra. at 974.

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

The First Cause of Action of plaintiffs' First Amended Complaint clearly set out facts, which, if proved, would entitle plaintiffs to compensation and statutory damages under the Elder Abuse statutes. It is brought against Universal Medical Center as operator of both an acute care hospital and the Merritt Rehabilitation unit. In summary, it is alleged that Harry White was a person protected by the Elder Abuse Statutes and that he was under the care and custody of the identified defendants. Paragraph 16 set out a pattern of aggravated neglect by defendants with regard to Mr. White's skin integrity. It is alleged that Mr. White was known to be at great risk for skin breakdown because of a number of predisposing factors and that a proper pressure ulcer prevention plan was necessary for him. An essential element of such a program is regular repositioning. Proper nutrition and hydration are also important, it is alleged.

Continue reading "Elder Abuse Of Sacramento Man Leads To His Death, Part 4 of 10" »

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

Argument

Law Applicable to Demurrers

It is axiomatic that a demurrer does not test the sufficiency of evidence or other extrinsic matters. Four Star Electric v. F&H Construction (1992) 7 Cal.App.4th 1375, 1379. The only issue for the Court to resolve on demurrer is whether the complaint, as it stands, unconnected with extraneous matter, states a cause of action. Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224. The judge's function on demurrer is to treat properly pleaded facts as true without consideration of whether they are provable or not. Ibid.

While these rules of determining a demurrer are well known, it is often valuable to remind the moving party of them. In the case at bar, if each properly pleaded fact in the Complaint were stipulated to be true, the defendant could not argue that the plaintiffs would not be entitled to a verdict under the Elder Abuse statutes. This is another way of expressing the standard for judging a demurrer. When properly viewed in this way, it is plain that defendants' demurrer is without merit. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The First Cause of Action Alleging Reckless Neglect of An Elder Is Properly Pleaded.

Defendant concedes that a cause of action for elder abuse under California Welfare and Institutions Code §15600 et seg. is a separate and distinct claim for medical negligence.

The elements of proof of a claim for neglect of an elder are now embodied in the books of approved jury instructions, including CACI 3103. Enhanced remedies are permitted under the Elder Abuse statutes upon a showing of reckless neglect, malice, oppression, or fraud.

Continue reading "Nursing Facility Sued By Sacramento Family For Abuse, Part 3 of 10" »

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

Plaintiffs' First Amended Complaint cures the defects the Court identified in the original complaint. The causes of action are specifically segregated as to the specific cause of action being alleged and the specific defendants against which each is being alleged.

The First Cause of Action is one alleging violation of the Elder Abuse statutes and is brought against defendant Universal only. As will be more specifically described below, it alleges reckless neglect in that Harry White, while under the care and custody of Universal, suffered a Stage IV pressure ulcer, bowel impaction, mechanical fall causing orthopedic injury, malnutrition and dehydration. It is alleged that the fact of Mr. White’s fall was not reported to his wife, who held medical power of attorney. Further, it is alleged that Mr. White was recklessly discharged home with the above conditions to be cared for by his wife, who was utterly incapable of caring for a patient with the aforementioned multiple severe conditions and that Mr.White' condition was thereby worsened by that discharge, as defendants knew it would be.

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

The Second Cause of Action is brought solely against defendants other than the moving parties.

The Third Cause of Action is one for violation of the Elder Abuse statutes against National and National VNA only. This cause of action is based on reckless neglect by the home health agency which was engaged to provide nursing services while Mr. White was at home. It is alleged the agency knew or should have known that Mr. White needed a higher level of care than could be provided by his wife and a single weekly visit by a home health nurse.

Continue reading "Sacramento Man Suffers Wrongful Death Due To Elder Abuse, Part 2 of 10" »

The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of civil filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Plaintiffs Diane and Paul White’s Memorandum of Points and Authorities in Opposition to Demurrer on Behalf of Defendants Universal Medical Center and National Hospice to Plaintiffs' First Amended Complaint for Damages

Introduction

This is an action for damages brought by plaintiffs Debra White, surviving spouse of Harry White, deceased, and Paul White, the son of Harry White.

The action is one for violation of the Elder Abuse Statutes (Welfare & Institutions Code §15600 et seq., aka "http://www.moseleycollins.com/lawyer-attorney-1245027.htmlEADACPA"), negligent and intentional infliction of emotional distress and wrongful death. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants Universal and National Hospice demur to all causes of action alleged against them in the First Amended Complaint except for the Sixth Cause of Action For Wrongful Death.

The Court, in ruling on these defendants' demurrers to the original Complaint in this action, sustained the demurrers with leave to amend. The Court held that pleading did not sufficiently allege the specific conduct which was alleged as to each defendant, but the Court then noted that "if alleged more specifically against each defendant, it appears that the conduct described is sufficient to constitute outrageous conduct necessary for intentional infliction of emotional distress." (See Part 2 of 10.)

Continue reading "Sacramento Family Sues Hospice For Elder Abuse, Part 1 of 10" »