Kaiser Medical Malpractice Lawyer Blog

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

ARGUMENT

A. The Conversation that Occurred Between Dr. Gamble and Dr. Lee Is Relevant to Dr. Gamble's Qualifications and Expertise and the Prejudicial Affect that Plaintiffs Counsel Predicts Does Not Meet the Requirements of Evidence Code section 352

Plaintiff complains that mentioning the conversation and the partnership between the doctors creates a risk that the jury will perceive the testimony as equal in caliber simply because of the affiliation. This is a weak disguise for plaintiffs true concern that the jury will find out that Dr. Gamble sought out Dr. Lee's assistance before drawing his own conclusions about this case. Dr. Gamble testified at his deposition that this conversation occurred about the same time as he signed his declaration to oppose the summary judgment motion. The very fact that he sought out assistance during this critical time is probative of his credibility as an expert witness and of the opinions proffered in the many drafts of his declaration produced at his deposition.

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

Even if we were to entertain Plaintiffs contention that the jury may conclude that partners are equal, this is not a source of undue prejudice to the Plaintiff because it would adversely affect the Defendants as well. Most evidence is "prejudicial" to the party against whom it is offered, but that is not enough to preclude it under Evidence Code section 352. Further, the probative value of any such evidence far exceeds any small prejudicial affect it may have.

Continue reading " Sacramento Physicians Seek To Exclude Critical Evidence In Malpractice Lawsuit, Part 2 of 2 " »

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

OPPOSITION TO MOTION IN LIMINE NO. 14 - TO EXCLUDE EVIDENCE OF DISCUSSION BETWEEN DRS. GAMBLE AND LEE

INTRODUCTION

Plaintiff seeks to exclude from evidence any mention of conversations between Dr. Lee and Dr. Gamble or the fact that they work together. Defendant disagrees that such evidence should be excluded based on a recent discovery that Plaintiffs expert, Dr. Alan Gamble, approached Defendants' expert, Dr. Michael Lee, specifically about this case. Plaintiff is merely attempting to cover up the fact that her expert made a crucial error in judgment by approaching defense counsel's expert for his learned advice and opinion on the facts of this case. That plaintiffs expert elected this tactical course to consult a third party as part of the formulation of his opinion effectively waives any expectation of work product privilege and is both admissible and subject to discovery. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FACTS

Well over a month before the time for expert witness disclosure and designation in this matter, plaintiffs expert, Dr. Gamble, admittedly of his own volition, informally approached defense expert, Dr. Lee to discuss his review of a case in which he had been retained as an expert. At the time, neither doctor was aware the other was consulting on this case. Following a brief description of the facts in the case by Dr. Gamble, the defense's expert, Dr. Lee recognized the facts as being similar to this instant litigation matter in which he had been retained by defense counsel for review, and immediately terminated the conversation.

Continue reading " Hospital Pits Its Experts Against Sacramento Family In Wrongful Death Suit, Part 1 of 2 " »

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

ARGUMENT

In order to prove causation, Plaintiff must establish a causal link between the harm complained of and the Defendants' actions. See Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 279; Frantz v. San Luis Medical Clinic (1978) 81 Cal.App.3d 34, 39. A plaintiff cannot recover where there is only a mere possibility a defendant's alleged negligence caused the wrong. Morgenroth v. Pacific Medical Center (1976) 54 Cal.App.3d 521, 533. The mere possibility that the Defendants' treatment was the cause of Plaintiffs injury is insufficient to establish a prima facia case. There can be many possible "causes," indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498.

California has adopted the "substantial factor" test for proving cause-in-fact, or actual cause, in negligence cases. Viner v. Sweet (2003) 30 Cal.4th 1232, 1238; Rutherford v. Owens-Ill., Inc. (1997) 16 Cal.4th 953, 968.) Per CACI 430, a substantial factor is one that a reasonable person would consider to have contributed to the harm suffered by the plaintiff. As reiterated most recently in Mayes v. Bryan (2006) 139 Cal.App.4th 1075: A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. Id. at 1095. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Actions By Sacramento Doctors Legal Cause Of US Veteran's Wrongful Death, Part 2 of 2 " »

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 13 PROHIBITING DEFENDANTS FROM ATTEMPTING TO BLAME THE US MILITARY, THE ARMY, THE DEPARTMENT OF DEFENSE OR WAR OVERSEAS FOR CONTRIBUTING TO MR. HILL'S DEATH

INTRODUCTION

Plaintiff seeks to exclude all reference to any role that the military may have played in David Hill's death. Plaintiff refers to Evidence Code section 352, arguing that the probative value of such information is outweighed by the potential prejudice that may ensue if the evidence is revealed at trial. Defendants maintain that Mr. Hill's service in the military caused or contributed to his mental health issues and such information is therefore relevant to the case and integral to Defendants' affirmative defense of pre-existing condition and causation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FACTS

Decedent David Hill was not only diagnosed with post-traumatic stress disorder (PTSD), but was also placed on a previous psychiatric hold by the US Military just a month prior to his elopement from Sacramento Medical Center. Despite this recent history of mental health issues, Mr. Hill was released to full duty, sent to California (his home was in Arizona) to train other soldiers.

Continue reading " Sacramento Hospital Seeks To Blame Military For Patient's Wrongful Death, Part 1 of 2 " »

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 10 - NO MENTION AS TO WHETHER OR NOT DANI LENNON ASSESSED DAVID AS A FLIGHT RISK OR RECOMMENDED THAT HE BE RESTRAINED

INTRODUCTION

Plaintiff seeks to exclude any mention of whether or not Dani Lennon assessed David Hill as a flight risk or whether she recommended restraints for him. There is no legal basis for Plaintiff to exclude this relevant and highly probative evidence. Rather, Plaintiff moves to exclude the evidence because it is bad for her case and not based on any statutorily recognized reason.

FACTS

Plaintiff initially sued Health Care West/Universal Behavioral Health, but dismissed that party. Universal Behavioral Health was involved in the case because they sent their Behavioral Health Analyst to Sacramento Medical Center to assess David Hill and because David Hill was slated to transfer to Universal once he was medically cleared by . In response to a demand for production of documents from Plaintiff, Healthcare West provided certain documents that pertained to David Hill's assessment. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

ARGUMENT

Plaintiff, in her moving papers, argues that (a) Ms. Lennon was not trained to assess the issues of flight risk or restrains, she was only trained to assess the need for a 5150 hold and (2) if Ms. Lennon did assess flight risk, she was not doing so from the perspective of Sacramento Medical Center but was rather assessing whether Mr. Hill was a flight risk at Universal Behavioral Health, a locked facility.

Continue reading " Iraq War Veteran Subject To Medical Malpractice By Sacramento Doctors, Part 1 of 1 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

California has adopted the substantial factor test for proving cause-in-fact, or actual cause, in negligence cases. Viner v. Sweet (2003) 30 Cal.4th 1232, 1238; Rutherford v. Owens-Ill., Inc. (1997) 16 Cal.4th 953, 968.) Per CACI 430, a substantial factor is one that a reasonable person would consider to have contributed to the harm suffered by the plaintiff. As reiterated most recently in Mayes v. Bryan (2006) 139 Cal.App.4th 1075: A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. Id. at 1095. Ordinarily, the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. Bromme v. Pavitt, supra, 5 Cal.App.4th at 1497-1498. If the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries. Doupnik v. GM Corp., (1990) 225 Cal.App.3d 849, 861.

Plaintiff's mental health history is incredibly relevant to the issue of causation because it demonstrates the decedent's intention and desire to end his life. One of the critical defenses that the Medical Center Defendants have put forth through the course of this litigation is the fact that Mr. Hill's departure was abrupt considering he was feigning sleep immediately prior to his elopement. This signifies an intent to deceive medical providers into thinking he was complacent when he really wanted to escape. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Sacramento Healthcare Facility Responsible For Veteran's Wrongful Death, Part 2 of 2 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 5 - TO EXCLUDE DECEDENT'S PRIOR MENTAL HEALTH HISTORY

INTRODUCTION

Plaintiff seeks to exclude all reference at trial to plaintiff's mental health history (except the information about his mental health included with Dan Lennon's evaluation) under Evidence Code section 352, arguing that the probative value of such information is outweighed by the potential prejudice that may ensue if the evidence is revealed at trial. Defendants maintain that Mr. Hill's prior mental health issues are relevant to the case and integral to Defendants' affirmative defense of pre-existing condition and causation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FACTS

Decedent David Hill was not only diagnosed with post-traumatic stress disorder, but was also placed on a previous psychiatric hold by the US Military just a month prior to his elopement from Sacramento Medical Center. Despite this recent history of mental health issues, Mr. Hill was sent to California (his home was in Arizona) to train other soldiers. Mr. Hill took an overdose of Wellbutrin on February 23, 2008 and was taken to Sacramento Medical Center where he was placed on a 1799 hold by emergency room physician Stephen Brown, a temporary hold awaiting evaluation by a behavioral health specialist.

Continue reading " Sacramento Physicians Sued For Wrongful Death Of Veteran, Part 1 of 2 " »

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

The consequences of this Line of Duty determination can be significant. If a soldier was not present for duty due to hospitalization for example, this time must be made up and directly affects the soldier's Estimated Time of Separation (ETS) date. Moreover, if there are any complications from an injury that was deemed not in the line of duty, the Veteran's Affairs may determine that the soldier is not eligible for VA benefits, disability benefits or medical treatment for the injury.

Here, the relevance of this investigation and determination of the circumstances surrounding Mr. Hill's unusual demise by the military cannot be overstated, yet plaintiff seeks to exclude this evidence. Any evidence related to this determination is probative of the issues of consequence in this litigation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Mr. Hill's death occurred while he was absent from the military, and under strange or doubtful circumstances. His LOD determination may have significant impact on benefits such as Survivor Benefit Plan, disability retirement and severance pay, etc. Plaintiff Stella Hill is the surviving spouse of the decedent and receives compensation from the military in the form of VA benefits, spousal retirement and family survivor benefits.

Continue reading " Sacramento Veteran With PTSD Subject To Medical Malpractice, Part 3 of 3 " »

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

Argument

Preliminarily, plaintiffs characterization of the line of duty determination as being made where a soldier is possibly under the stress of a his/her time in combat in Plaintiff's Motion in Limine, p.l, is extremely limiting and somewhat biased. While many soldiers certainly do experience stress "related to their military service," it is not a given that they will also attempt to end their lives under non-combat situations such as those in this case. More importantly however, plaintiff glosses over the fact that the Line of Duty determination is in fact, an investigation. The past difficulties are relevant for the jury's consideration of whether plaintiffs economic damages claim have any merit, and to what degree. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As a pre-existing medical condition, the military failed to prevent the current hospitalization with significant therapy and medication prescriptions. This is probative of whether Mr. Hill could have been expected to return to military service at any point in the future, and whether the military could offer Mr. Hill the assistance he needed, among other things. Plaintiff cannot claim that Defendants should have inquired into this history to establish liability, while precluding defendants from utilizing the same information for purposes of causation and damages.

A Line of Duty (LOD) determination is an administrative tool for determining a member's duty status at the time an injury, illness, disability, or death is incurred. This investigation is generally conducted whenever a soldier acquires a disease, incurs a significant injury or is injured under unusual circumstances.

Continue reading " Wife Sues For Damages After Husband's Wrongful Death At Sacramento Hospital, Part 2 of 3 " »

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 4 REGARDING LINE OF DUTY REFERENCES

Introduction

Plaintiff seeks to exclude at trial all reference to a Line of Duty Determination as well as any documentation pertaining to a Line of Duty Report. Plaintiff claims that any reference to this term would constitute a "trial within a trial" as to the stresses of combat and whether their residual effects existed in Sacramento. (Plaintiffs Motion in Limine No. 4)

It is anticipated that Plaintiff will put on evidence regarding Mr. Hill's military service to this county in an effort to evoke sympathy and compassion from the jury. It is also anticipated that Plaintiff will attempt to portray the decedent as a hero who "fell in the line of duty." The fact that a Line of Duty Investigation regarding the circumstances of Mr. Hill's death was initiated and conducted by the military is, by itself, quite salient and should properly be allowed as admissible evidence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

To the extent the line of Duty Report spells out collateral source benefits admissible under Civil Code Section 333.1, Defendants incorporate by reference all arguments contained in their Oppositions to Plaintiff's Motions in Limine 2 and 21.

Facts

David Hill had served in the U.S. military armed services (Army) from 1989 to 1991 and again from 1999 through 2008.

Continue reading " Deceased Veteran's Family Seeks Relief After Medical Negligence, Part 1 of 3 " »

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

Evidence of Retirement and Survivor Payments and Benefits Based on Mr. Hill's Military Service Are Admissible As Collateral Sources

Issues pertaining to the amount of damages sought in this case, particularly in reference to claims made based on Mr. Hill's projected income must be examined at the time of trial and cannot justifiably be excluded from evidence. For example, serious questions exist as to whether Mr. Hill, even if he otherwise was able to resolve his suicidal tendencies including two § 5150 holds within close proximity to each other, a car accident while driving a military vehicle and a drug overdose, would have allowed him to remain in the military so as to reach full retirement. Had Mr. Hill reached his full 20 years of military service, he would have been entitled to a pension at 50% of his base pay at retirement. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Assuming plaintiffs seeks to present evidence regarding the viability of a full military career to 20 years, defendants are entitled to an offset for whatever equivalent payments Mrs. Hill is receiving in lieu of that pension which would otherwise have not been obtained had he not died. See, e.g. Rotolo v. Superior Court (2003) 105 Cal.App.4th 242. Rotolo dealt with a functionally identical situation as here, of a plaintiff claiming both lost wages (albeit due to a disabling injury, not a death) and lost standard retirement/pension payments benefits of about $875,000. However, the evidence showed that, due to his disability, he was entitled to receive replacement disability retirement payments of a nearly equivalent amount in lieu of his normal retirement, He otherwise would not have received such sums had he not become disabled and retired for this reason.

Continue reading " Wife Of Sacramento Veteran Seeks Damages After Husband's Wrongful Death, Part 5 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this medical malpractice 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 wrongful death case and its proceedings.)

Plaintiff's Wrongful Death Action Is Subject to Civil Code § 3333.1

Plaintiff Stella Hill's wrongful death claim against defendant is thus, subject to collateral source rule articulated in Civil Code § 3333.1, allowing introduction of evidence of any amount payment as a benefit to the plaintiff. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Yates v. Pollock (1987) 194 Cal. App. 3d 195, a wrongful death action by the heirs of the decedent, the court upheld the applicability of Civil Code § 3333.1 and reiterated that that wrongful death claims are for injuries suffered by the heirs of medical malpractice victims. Id at 199. (See also, Krouse v. Graham (1977) 19 Cal.3d 59, 68.) In reaching a determination that the legislative intent of the statutory provisions placing a $250,000 cap on awards for noneconomic damages in all medical malpractice litigation, whether recovery is sought by patients who have themselves suffered personal injuries or by the survivors of such victims who initiate suits for wrongful death, the Yates Court relied on and pointed out the plain, unambiguous language in Civil Code § 3333.2 which states in pertinent part:

Continue reading " Veteran With PTSD Suffers Wrongful Death In Sacramento Hospital, Part 4 of 5 " »