wrongful death

Medical Malpractice: Physician-Patient Privilege

By on March 9, 2015 - Comments off

Snibbe v. Superior Court, (Second District, February 27, 2014) 224 Cal.App.4th 184, 168 Cal.Rptr.3d 548, 14 Cal. Daily Op. Serv. 2156, 2014 Daily Journal D.A.R. 2450

The sons of a woman who died following hip replacement surgery filed an action for wrongful death against a medical center, the physician who performed the surgery, and the anesthesiologist. The plaintiffs alleged that the decedent was found unresponsive several hours after a physician’s assistant administered hydromorphone, a pain medication which presents a high risk of fatal respiratory depression. The plaintiffs further alleged that administration of hydromorphone for postoperative pain relief was below the standard of care and a substantial factor in the death of the decedent.

The plaintiffs moved to compel production of postoperative orders relating to the physician’s other patients, contending that they would be relevant to the issue of whether the physician and his assistant regularly consulted with an anesthesiologist, (as the physician had testified), or instead, he regularly permitted the assistant to rely on boilerplate drug orders for the administration of opioid pain medication. 

The trial court granted the motion, but limited the scope of discovery to 160 postoperative orders including provisions for the administration of opioids. The physician sought a writ of mandate, contending that production would violate the physician-patient privilege. The court of appeal issued a writ ordering the trial court to issue a new order redacting personal identifying information from the records, but denying the petition in all other respects:

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Premises Liability: Swimming Pools

By on February 25, 2015 - Comments off

Johnson v. Prasad, (Third District, February 25, 2014 | 224 Cal.App.4th 74, 168 Cal.Rptr.3d 196, 14 Cal. Daily Op. Serv. 2064, 2014 Daily Journal D.A.R. 2325

The mother of a four-year-old boy who drowned in the swimming pool of a rented house filed an action for wrongful death against the homeowners. The plaintiff alleged that the child, who had accompanied his father and grandmother to a get-together at the home, had wandered into the pool area when no one was present and had fallen in unseen when his grandmother had returned to the house and failed to close a security gate or the sliding glass door behind her. The plaintiffs further alleged that the homeowners were negligent in failing to install a fence around the perimeter of the pool or a self-closing or self-latching mechanism on the only door leading from the house to the pool.

The trial court granted summary judgment, finding that the defendants had no duty to inspect the premises, in that there was no reason to expect children to be playing in the pool, the pool was not a ‘nuisance’ or an unreasonably dangerous condition  of property.  The court also found that  there was no evidence that it was more likely than not that the conduct of the homeowners was a cause in fact of the drowning, because the security gate and sliding glass door could not have been involved in this accident, since they were left open on purpose.

However, the court of appeal reversed, holding as a matter of law that the homeowners, who knowingly rented a home with a maintained pool, owed a duty of reasonable care to the four-year-old boy to protect him from drowning in the pool:

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Statutory Offers to Compromise: Joint Offers

By on June 18, 2014 - Comments off

McDaniel v. Asuncion (2013) 214 Cal.App.4th 1201, 155 Cal.Rptr.3d 71

The wife and daughter of a man who was killed in a multiple vehicle accident brought an action for wrongful death against multiple defendants.  A jury returned a verdict in their favor against one defendant, but returned a defense verdict as to the only remaining defendant. The prevailing defendant filed a memorandum of costs to recover over $40,000 in expert witness fees, based upon the plaintiffs failure to obtain an award more favorable than a pretrial offer to compromise pursuant to C.C.P. § 998.

The trial court awarded the expert fees as requested, and the plaintiffs appealed, contending that the offer was void as a matter of law because it was made jointly as a single offer to two plaintiffs. The court of appeal reversed, holding that “although joint offers may be invalid… there is little, if any, justification for invalidating a joint offer in a wrongful death case”: Read the rest »


Liability Releases: Gross Negligence

By on March 17, 2011 - Comments off

Eriksson v. Nunnink (Fourth District, January 10, 2011) — Cal.Rptr.3d —-, 2011 WL 60516

The parents of a 17 year old equestrian competitor who was killed when the horse she was riding tripped over a hurdle and fell on her, filed an action for wrongful death against their daughter’s riding coach. Although the girl and her mother had signed a liability release, assuming all risks and holding the coach harmless from any and all claims, the plaintiffs alleged the coach had unreasonably increased the risk of harm to the decedent by knowingly permitting her to ride a horse which she knew to be unfit because of prior falls and lack of practice.

The trial court granted the defendant’s motion on the grounds of primary assumption of the risk, but the court of appeal reversed, holding, inter alia, that triable issues of fact existed as to whether the defendant’s conduct was grossly negligent within the meaning of City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747:

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Posted in: Negligence



Liability Releases: Rental Agreements

By on July 2, 2010 - Comments off

Huverserian v. Catalina Scuba Luv, Inc., (Second District, May 26, 2010) —Cal.Rptr. 3d —-, 2010 WL 2089663, 10 Cal. Daily Op. Serv. 6573

The heirs of a man who died when he ran out of air while scuba diving near Catalina Island filed an action for wrongful death against the business which had rented the dive equipment to the decedent and his son for the day. The defendant moved for summary judgment, asserting that exculpatory language in the rental agreement provided a full defense. In the form rental agreement signed by the decedent, there was a lengthy liability release which was preceded by bolder underlined print which stated: “Equipment rental agreement, liability release and assumption of risk of scuba & snorkel gear for boat dives or multiple day rentals”.

Although it was undisputed that the decedent and his son did not rent the equipment for a boat dive or multiple day rental, the trial court found the exculpatory language provided a complete defense. However, the court of appeal reversed, holding that a person renting equipment for a single day could have reasonably concluded that the language did not apply:

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