Sacramento Injury Lawyer Blog

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

THE SIXTH CAUSE OF ACTION FOR FRAUD IS PROPERLY STATED AGAINST THE DEMURRING PARTIES EVEN THOUGH THE CAUSE OF ACTION DOES NOT ALLEGE THE PLAINTIFFS' RELIANCE ON THEIR FALSE PROMISES AND REPRESENTATIONS

The controlling case is Randi W. v. Muroc Joint Unified School Dist. (1997) 34 Cal. 4 1066. There, the court decided the precise issue raised by the demurrer. Can a victim of the defendant's fraud on a third person seek damages for that fraud? The answer proposed by the demurrer is "no"; whereas the answer in Randi W. is "yes."

In Randi W., the victim had allegedly been fondled or abused by a school administrator. The Administrator had previously been employed at another school district, but when complaints mounted about his misbehavior at that school district he sought employment elsewhere. The second school district sought references from the first school district and the response was positive, to the effect that he worked well with students, etc. This representation was allegedly false, and relied on by the second school district which employed him; but the representation was not relied upon by Randi W., the victim. Nonetheless, Randi W. explained that the rule requiring the victim's reliance on the misrepresentation was reserved for claims for economic loss, not for physical injury.

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

Continue reading "Sacramento Family Files Fraud And Elder Abuse Case On Behalf Of Deceased Loved One, Part 9 of 9" »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Wagner, as a health care provider .Davis's function was allegedly as director of nursing. It was her exclusive responsibility to direct the nursing service. As set forth in the moving memo at p. 6, at 22 Cal. Code Regs. §72327(c) she is to have responsibility and accountability for the nursing services within the facility.

And as alleged in 19G of the 3d AC, her responsibilities were to ensure that care was provided in an organized and effective manner by all care giving disciplines within the facility. This latter duty is outside the scope of nursing practice and her license as a nurse, but is instead imparted to the Director of Nursing as an employee of a skilled nursing facility operation. This latter duty has been entirely overlooked by her demurrer, even though explicitly alleged in the 3d AC.

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

Hill, as health care providers. There are three basic categories of allegations against the Hill defendants. First, at 3, it is alleged that Hill operated various aspects or portions of the facility. They have no license to do so, and are unprotected by MICRA to the extent that they did operate the business. Second, at 14, Hill is alleged to have caused the dissolution of National Convalescent Hospital, Inc., with the result that they became the owner of its assets.

Continue reading "Administrators Under Fire After Wrongful Death At Sacramento Nursing Facility, Part 8 of 9" »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

THE INDIVIDUAL DEFENDANTS ARE NOT ENTITLED TO THE BENEFIT OF MICRA, EVEN AS TO THE CLAIM OF NEGLIGENCE AS SET FORTH IN THE FIRST CAUSE OF ACTION

In the preceding section, plaintiffs established that as to the statutory tort of wrongful death, since it is based on intentional tort theory, the statute of limitations is C.C.P. §335.1. In this section, dealing with the demurrer of the individual defendants, the demurrer fails because they do not have a requisite license, or were engaged in unlicensed activity.

First, the Administrator, Mr. Stein. California Nursing Home administrators are licensed under Division 2, Chapter 2.35, Article 1 of the Health & Safety Code, starting with Health & Safety Code §1416. MICRA describes those benefitted as health care providers under C.C.P. 340.5 as follows:

Health care provider means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. (emphasis added.) Manifestly, as alleged, Stein is a nursing home administrator, but under law not a licensed health care provider. A closer look at the moving memorandum tacitly concedes Stein's problem.

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

Continue reading "Sacramento Man's Family Files Elder Abuse Suit After His Death In Nursing Facility, Part 7 of 9" »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

NATIONAL CONVALESCENT HOSPITAL, INC. IS ENTITLED TO THE BENEFIT OF MICRA'S C.C.P. §340.5 ONLY AS TO PLAINTIFFS' FIRST CAUSE OF ACTION FOR NEGLIGENCE, BUT NOT THE EIGHTH CAUSE OF ACTION FOR WRONGFUL DEATH WHICH IS PREMISES ON INTENTIONAL TORT

Initially, Plaintiffs distinguish between a negligence claim as set forth in their First Cause of Action, on one hand, and a wrongful death claim as set forth in the Eighth Cause of Action, on the other. A wrongful death action is statutory. Ruttenberg v. Ruttenberg (1997) 53 Cal. App. 4 801. According to C.C.P. §377.60, A cause of action for the death of a person caused by the wrongful act orneglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf. See also Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1263 (same). In other words, wrongful death may lie for a wrongful act in the absence of negligence. e.g., a battery causes death.

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

Barris v. County of Los Angeles (1999) 20 Cal 4th 101, considered whether MICRA's limitation on general damages (Civil Code §3333.2) applied to another statutory tort, under a provision of the federal Emergency Medical Treatment and Active Labor Act (EMTALA) requiring that patients be stabilized before discharge. Barris, at p. 115-116 explained that MICRA does not apply to intentional torts. Barris then explained in conclusion, that the court's task in determining whether MICRA's Civil Code §3333.2 applies to a statutory tort such as EMTALA - failure to stabilize - properly involves examining the legal theory underlying the particular claim and the nature of the conduct challenged to determine whether, under California law, it would constitute professional negligence ... .

Continue reading "Sacramento Skilled Nursing Facility Patient Dies After Elder Abuse, Part 6 of 9" »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Sixth Cause of Action for Fraud

National promised and represented to XYZ, Novacare and others that its facility was "organized, staffed, and operated in a manner which routinely met the individualized care needs of residents," particularly including resident patients referred by discharge planners at XYZ Community Hospital. The promise (and representation) was in a so-called "Provider Agreement" between XYZ and Novacare and National.

National also made promises in writing in the form of an annually application for renewal of the license issued by the state to National, that it would comply with all relevant state laws, especially those pertaining to patient safety and quality of care. Promises were also made in plans of correction formulated on a HCFA 2567 form. Each promise was authorized and ratified by each defendant.

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

Continue reading "Egregious Elder Abuse At Sacramento Nursing Facility Results In Death, Part 5 of 9" »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Stein had a duty of ordinary care as a licensed Administrator, and a more specific duty to ensure that sufficient funds were available to hire and retain sufficient numbers of sufficiently trained staff to meet the individualized needs of each resident patient and to ensure that the facility's operation complied with legal standards and also with the standard of care.

Davis had a duty of ordinary care as Director of Nursing, and had a more specific duty to ensure that care was provided in an organized and effective manner by all care giving disciplines within the facility, that changes in patient condition and problems with patient care were identified, assessed, reported and resolved and in particular that patients who needed transfer to hospital or in other care settings were promptly transferred.

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

Continue reading "Substandard Care At Sacramento Nursing Facility Leads To Elder Abuse, Part 4 of 9" »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

REVIEW OF THE ALLEGATIONS AGAINST NATIONAL CONVALESCENT HOSPITAL, INC., AND THE HILL DEFENDANTS

First Cause of Action for Negligence:

Various individual defendants associated with National Convalescent Hospital, operated various aspects or portions of a skilled nursing facility known by the name National Convalescent Hospital. In other words, more than one defendant associated with the operation of National Convalescent Hospital was engaged in its operation.

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

Davis was appointed Director of Nursing per 22 Cal. Code Regs. §§72301, et seq. Stein, whether appointed, designated or licensed to do so, or not, together with various other defendants including Hill, and National Convalescent, acted as "Administrator," and had a duty to act as Administrator of the facility. In other words, Stein shared responsibilities to administer the facility with Hill defendants and others.

Co-defendants PacifiCare, Novacare, and/or XYZ entered into agreements with the owners, operators and licensees of the facility to secure skilled nursing facility services. National undertook to satisfy the responsibility of PacifiCare, et al. to provide such services.

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Continue reading "Sacramento Convalescent Hospital Commits Elder Abuse, Part 3 of 9" »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

In short, the question posed by the demurrer to the First Cause of Action presents an array of included issues. As MICRA is a defense which has, as factual foundations, questions related to the capacity of the defendant and their participation in the transactions on which the action is based, a demurrer by each of the Hill defendants based on the licensure status of the skilled nursing facility is disingenuous, and unconvincing.

The demurrer is also to the Eighth Cause of Action for wrongful death under Civil Code §377.60. This cause of action is a statutory tort, and the question whether MICRA applies to it is will be determined by established case law deciding the question of when a statutory tort is governed by MICRA as a negligence claim would be, or on the other hand whether the statutory tort would not be governed by MICRA as an intentional tort.

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

Continue reading "Elder Abuse At Sacramento Skilled Nursing Facility Leads To Death, Part 2 of 9" »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Plaintiffs' Combined Memorandum in Opposition to the Demurrer by National Convalescent Hospital, Inc., and National Defendants to the Third Amended Complaint

Plaintiffs submit the following combined Memorandum of Points and Authorities in opposition to the Demurrer by National Convalescent Hospital, Inc., and the individual National Defendants (referred to as "Hill" or "Hill defendants") to Plaintiffs' Third Amended Complaint. Plaintiffs have elected to file one memorandum in opposition to the two demurrers, because, with only one exception, the issues presented in the two demurrers are the same.

Plaintiffs have likewise contemporaneously filed a combined Memorandum of Points and Authorities in opposition to both motions to strike.

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

INTRODUCTION

The demurrer based on the statute of limitations addressed to the First Cause of Action for negligence and the Eighth Cause of Action for wrongful death raises important issues related to the limits of the scope of MICRA. This is because the demurrer is based on the assumption that each of the defendants is benefitted by MICRA's statute of limitations provision at C.C.P. §340.5.

Specifically, the issue is whether the Hill defendants, i.e., officers, directors or other persons who participate in or meddle in the administration of a skilled nursing facility but who have no license to do so are shielded by the license issued to the licensee and the application of MICRA.

Continue reading "Sacramento Family Files Wrongful Death Suit Against Nursing Facility, Part 1 of 9" »