Sacramento Medical Malpractice Lawyer Blog

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(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 failed to comply with California Rule of Court 312(g).

California Rule of Court 312(g) provides: each separate cause of action or affirmative defense in a pleading shall specifically identify its number; the party asserting it, if more than one party is represented in the pleading; and the party or parties to whom it is directed. Plaintiffs' First Amended Complaint violates this rule because the second cause of action, medical malpractice - survival action, does not indicate the identity of the party asserting it because there are two plaintiffs. Although on the caption of the second cause of action it indicates that the action is against Does 6-20, in the body of the cause of action it identifies Dr. Hill, Dr. Goldstein, Dr. Martinez, and Valley Medical Center, as well as Does 6-20, as being negligent in causing harm to decedent. The third cause of action does not identify which plaintiff is asserting the cause of action, nor does it identify which defendant it is being directed against. Therefore, the First Amended Complaint is uncertain, ambiguous and unintelligible. Thus, the court should grant defendant's motion for judgment on the pleadings.

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

CONCLUSION

For all of the reasons stated herein, Dr. Goldstein respectfully requests that the court grant his motion for judgment on the pleadings.

Continue reading " Medical Malpractice And Wrongful Death Lawsuit Filed By Sacramento Man's Family, Part 9 of 9 " »

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(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.)

Monica Smith, although legally separated from decedent, was still his wife at his death, and is thus a necessary party to this litigation.

California Probate Code §78 states that the term "surviving spouse":

"does not include any of the following: (a) a person whose marriage to the decedent has been dissolved, or annulled, unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death; (b) a person who obtains or consents to a final decree of judgment or of dissolution of marriage from the decedent, or a final decree or judgment of annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other, or (2) subsequently live together as husband and wife; (c) a person who, following a decree of judgment of dissolution or annulment of marriage obtained by the person, participates in a marriage ceremony with a third person; or (d) a person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights."

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

A legal separation does not bar a wrongful death action by the surviving spouse if the divorce is not final at the time of decedent's death. Luis v. Cavin (1948) 88 Cal.App.2d 107.

Continue reading " Deceased Man's Former Wife Must Fight To File Wrongful Death Action Against Sacramento Physician, Part 8 of 9 " »

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(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' second cause of action fails to state a cause of action because it is brought by one who has no standing to assert it.

Plaintiffs' First Amended Complaint fails to state facts showing that an affidavit or declaration under penalty of perjury required by §377.32 was executed. Plaintiffs also failed to comply with Probate Code section 58, discussed supra. As a result, plaintiffs failed to allege any facts showing that Robyn Lee, as the representative of decedent's estate, has standing to assert the second cause of action for medical malpractice - survival action. Because Robyn Lee cannot assert the second cause of action individually due to lack of standing, and because plaintiffs have failed to state sufficient facts to show that Robyn Lee is decedent's successor-in-interest or the personal representative of decedent's estate, plaintiffs' second cause of action fails to state a cause of action. Therefore, pursuant to C.C.P. §438(B)(ii), the court should grant defendant's motion for Judgment on the Pleadings. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Court Should Grant Defendant's Motion For Judgment On The Pleadings As To Plaintiffs' Third Cause Of Action.

C.C.P. §377.60 identifies who may bring a wrongful death cause of action. It provides that a cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons, or by the decedent's personal representative on their behalf: (a) the decedent's surviving spouse, domestic partner, children, and issue of decedent's children. Each such heir has a personal and separate cause of action for decedent's wrongful death.

Continue reading " Heirs Of Deceased Sacramento Man Challenged In Wrongful Death Lawsuit, Part 7 of 9 " »

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(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' second cause of action does not allege a capacity to sue, is uncertain, ambiguous and unintelligible, and contains a defect and misjoinder of the parties.

Neither Robyn Lee, as an individual, nor as representative of decedent's estate, has the capacity to sue Dr. Goldstein for medical malpractice - survival. Robyn Lee, as an individual, has no standing to allege medical malpractice against Dr. Goldstein. There are no facts to show that a physician-patient relationship existed at any time between Dr. Goldstein and Robyn Lee, or that any duty of care was owed by Dr. Goldstein to Robyn Lee as an individual, that there was a breach of any such duty, or that the breach of any such duty was the legal cause of any harm to her. Because Robyn Lee, as an individual, cannot assert a survival claim on her own behalf, plaintiffs' second cause of action fails to allege a capacity to sue. Because Robyn Lee is not decedent's successor-in-interest or the legal personal representative of decedent's estate, the second cause of action fails to allege a capacity to sue on behalf of the estate. Defendant's motion should be granted on this basis.

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

The fact that both Robyn Lee, as an individual, and as the erroneous representative to decedent's estate, assert this cause of action, the second cause of action is uncertain, ambiguous and unintelligible. It is unclear whether both plaintiffs assert this second cause of action, or just one of them. Defendant's Motion should be granted on this basis. (15)

Continue reading " Elderly Sacramento Man's Family Sues Hospital For Wrongful Death, Part 6 of 9 " »

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(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.)

Robyn Lee is not the successor-in-interest or legal personal representative of decedent's estate: cont.

Plaintiffs' First Amended Complaint does not allege that Robyn Lee complied with C.C.P. §377.32. No required declaration was attached as an exhibit. There is no allegation that decedent died with or without a will, or that Robyn Lee is the sole beneficiary under decedent's will or the sole person who succeeds to his cause of action. There is no allegation that there are no other beneficiaries to decedent's will or no other persons who succeed to decedent's cause of action. Therefore, Robyn Lee is not the legal successor-in-interest of decedent's estate who is allowed to assert the survival action. She thus does not have any standing or legal capacity to assert the survival action on behalf of decedent's estate. Moreover, the First Amended Complaint does not even allege that the survival action is being brought by Robyn Lee as decedent's successor-in-interest, but rather it alleges that it is brought by her as the representative of the estate of decedent.

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

California Probate Code §58 (a) defines personal representative as the executor, administrator, administrator with the will annexed, special administrator, successor, personal representative, public administrator acting pursuant to §7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person's status.

Continue reading " Doctor Fights Deceased Sacramento Man's Family In Malpractice Suit, Part 5 of 9 " »

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(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.)

Robyn Lee is not the successor-in-interest or legal personal representative of decedent's estate: cont.

C.C.P. §377.32 requires an affidavit or declaration by decedent's successor-in-interest in order to commence or continue decedent's cause of action. It provides:

the person who seeks to commence an action or proceeding as the decedent's successor-in-interest, shall execute and file an affidavit or declaration under penalty of perjury under the laws of this state stating all of the following: (1) The decedent's name; (2) The date and place of decedent's death; (3) No proceeding is now pending in California for administrative of the decedent's estate; (4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor-in-interest; (5) Either of the following, as appropriate, with facts in support thereof: (A) The affiant or declarant is the decedent's successor-in-interest, and succeeds to the decedent's interest in the action or proceeding; or (B) The affiant or declarant is authorized to act on behalf of the decedent's successor-in-interest with respect to decedent's interest in the action or proceeding;

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

Continue reading " Sacramento Man's Family Sues Doctor For Malpractice, Part 4 of 9 " »

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(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.)

Facts

Plaintiffs' First Amended Complaint is brought by Robyn Lee, individually, and as the representative of the Estate of James Smith. (See Plaintiff's First Amended Complaint.) According to plaintiffs' First Amended Complaint, Robyn Lee is the daughter of James Smith and the representative of his estate. Plaintiffs also allege that on February 17, 2008, decedent, an elderly man who walked with the aid of a walker, allegedly tripped and fell striking his forehead and suffering injuries. Plaintiffs allege that decedent died on June 23, 2009. Plaintiffs allege two causes of action against Dr. Goldstein: medical malpractice - survival and wrongful death. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Court Should Grant Defendant's Motion for Judgment On The Pleadings As To Plaintiffs' Second Cause Of Action For Medical Malpractice - Survival.

Robyn Lee is not the successor-in-interest or legal personal representative of decedent's estate.

C.C.P. §377.20 provides that a cause of action for a person is not lost by reason of the person's death, but survives. C.C.P. §377.11 states that decedent's successor-in-interest means the beneficiary of the decedent's estate, or other successor-in-interest who succeeds to a cause of action. C.C.P. §377.10 defines the term Beneficiary of Decedent's Estate. It states that beneficiary of the decedent's estate means: (a) If the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action...under the decedent's will; (b) If the decedent died without a will, the sole person or all of the persons who succeed to a cause of action....

Continue reading " Man Subject To Medical Malpractice After Slip And Fall At Sacramento Store, Part 3 of 9 " »

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(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.)

MOTION FOR JUDGMENT ON THE PLEADINGS IS TIMELY AND PROPER

A motion for judgment on the pleadings may be made at any time, even after the time for demur or answer to the complaint. Ion Equipment Company v. Nelson (1981) 110 Cal.App.3d 868, 168. A motion for judgment on the pleadings may be made on the ground that the opposing pleading fails to state facts sufficient to constitute a cause of action. Colberg v. California (1971) 67 Cal.2d 408, 412. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A motion for judgment on the pleadings has the same function as a general demur, but is made after the time for the demur has expired. Except as provided by statute, the rules governing demur apply. Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2005) §7:275; Lance Camper Mfg. Corp. v. Republic Indem. Co. of America (1996) 44 Cal.App.4th 194, 198. The motion for judgment of the pleadings can assert statutory grounds, such as C.C.P. §438(B)(ii) and/or non-statutory grounds. Unless the court orders otherwise the statutory motion for judgment on the pleadings cannot be made after the entry of a pretrial conference order, or 30 days before the date the action is initially set for trial, whichever is later. (C.C.P. §438(e); Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group, 2005) §7.280.

Continue reading " Sacramento Family Sues For Wrongful Death Of Man Under Doctor's Care, Part 2 of 9 " »

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(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 in Support of Defendant, Robert Goldstein, D.O.'s Motion for Judgment on the Pleadings

Defendant, Robert Goldstein, D.O. (hereinafter referred to as “Dr. Goldstein”), by and through his attorneys, ABC & Associates, and as and for his Memorandum of Points and Authorities in Support of his Motion for Judgment on the Pleadings to plaintiffs' First Amended Complaint, states as follows:

INTRODUCTION

On August 2, 2009, plaintiffs, Robyn Lee, individually and as the representative of the estate of James Smith, deceased (hereinafter referred to collectively as, "Plaintiffs"), filed their First Amended Complaint in the above-captioned case. They assert two causes of action against Dr. Goldstein; the second cause of action for medical malpractice - survival action, and the third cause of action for wrongful death. Plaintiffs' first cause of action for premises liability - survival action is not directed at Dr. Goldstein.

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

Continue reading " Sacramento Chiropractor Sued for Malpractice, Part 1 of 9 " »