Northern California Record

Wednesday, November 13, 2019

Appeals court vacates order in case involving grandparents' suit against Kaiser in death of grandson


By Kyla Asbury | Jul 14, 2018


SAN FRANCISCO — An appeals court in California has ruled that a trial court erred when it denied a request for a continuance in a case involving a toddler who died of cancer.

The panel of judges from the First Appellate District Court of Appeal of California ruled to vacate the judgment and post-judgment order, according to the July 10 opinion.

Justice Marla Miller authored the opinion and was joined by Justices James Richman and Therese Stewart.

Gavin Plummer was diagnosed with Wilms' tumor, which is a cancer of the kidneys before the age of 2 and died when he was 4 when the disease continued to progress, despite surgeries, chemotherapy and radiation.

Edward Plummer Jr. and Christian Plummer, Gavin Plummer's grandfather and father, sued Kaiser Foundation Hospitals, alleging that the hospital system essentially abandoned its patient when it referred him to hospice care and withdrew care.

The Plummers alleged wrongful death, medical negligence, abandonment of patient and breach of contract in the death of the child.

The plaintiffs requested a referral to St. Jude's Children's Research Hospital, but the request was denied and Kaiser then encouraged the family to take Gavin Plummer home for hospice care.

The lawsuit was filed in the Superior Court of Alameda County and Kaiser filed a motion for summary judgment. The court granted the motion and denied a request for a continuance.

The court ruled that because Edward Plummer was the grandfather, he did not have the standing to bring a wrongful death claim because Gavin Plummer's parents were both living.

"Because we conclude that the trial court erred in denying Plaintiffs’ request for a continuance, we vacate the judgment," Miller wrote. "Therefore, we need not reach any of Grandfather’s other arguments that the trial court erred in granting Kaiser’s motion or his argument that the trial court erred in denying his request for a settled statement and we vacate the amended judgment and post-judgment order."

Miller noted that the court didn't take a position on the merits of the discovery issue or the summary judgment motion.

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