Kaiser Medical Malpractice Lawyer Blog

The following blog is provided as an example of a Kaiser medical malpractice lawsuit to aid potential clients in how a lawsuit is examined and conduced. 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 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 personal injury lawsuit and its proceedings.)

TEXT:
CASE INFORMATION
FACTS/CONTENTIONS
According to Plaintiff: Plaintiffs claimed that defendants failed to clip a ruptured aneurysm and monitor plaintiff patient's condition in a skilled nursing facility. The plaintiffs were John Doe, 51, and his wife, Jane Doe, 48. The defendants were Kaiser Foundation Hospital and Kaiser-related entities. John Doe suffered a right superior cerebellar artery aneurysm on August 29, 1999. On October 16, 1999 he suffered a re-bleed of the aneurysm while residing in a skilled nursing facility. He now requires full-time care and is confined to Alta Bates Herrick Hospital where he is essentially bed-ridden.

Plaintiff patient was in good health until August 1999. He experienced some headaches which seemed to resolve. On August 29, however, the headaches were so severe that he reported to the emergency room at the Sacramento Hospital. While in the emergency room, he vomited, had a seizure and became unresponsive. He was intubated immediately. He was diagnosed with a subarachnoid hemorrhage, likely due to an aneurysm, and acute hydrocephalus. He was transferred by helicopter to Kaiser Sacramento, where he came under the care of respondents.

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

Continue reading "Man Suffers Severe Injury When Sacramento Kaiser Fails to Diagnosis Aneurysm, Part 1 of 3" »

The following blog is provided as an example of a Kaiser medical malpractice lawsuit to aid potential clients in how a lawsuit is examined and conduced. 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 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 personal injury lawsuit and its proceedings.)

Plaintiffs further alleged that, if the infant had been properly monitored and given supplemental formula feedings, his blood sugar would not have dropped to a level low enough to cause brain damage.

Defendants contended that their care met the required standard in all respects. Defendants further contended that the infant was feeding well at the breast, as documented by the records and the testimony of the nurses and the infant's grandmother, and that the infant's hypoglycemia was due to an unpredictable, transient metabolic abnormality rather than to inadequate oral intake.

CLAIMED INJURIES
According to Plaintiff: Brain lesion; failure to develop normally; seizures; 24-hour tube feeding; emotional distress.

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

Continue reading "Infant Born at Sacramento Kaiser Hospital Has Permanent Brain Damage, Part 4 of 4 " »

The following blog is provided as an example of a Kaiser medical malpractice lawsuit to aid potential clients in how a lawsuit is examined and conduced. 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 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 personal injury lawsuit and its proceedings.)

Shortly before 7:00 a.m., a phlebotomist who had come to the infant's room to draw blood noted that he was not breathing. He was then taken to the well-baby nursery, where a bedside glucose check revealed a level of 15 (severely low). The infant was transferred to the special-care nursery at around 7:10 a.m. At 7:15 a.m., seizure activity was observed. Further blood glucose testing indicated that his level had dropped as low as 7. An MRI of his brain showed bilateral occipital infarction, primarily toward the back of the brain, a lesion that is commonly associated with severe hypoglycemia.

The infant was discharged from Kaiser on August 24, 2005. Since that time, he has not developed normally. At the time of the arbitration, he was two-years, 10-months old. He cannot walk, crawl, or use his arms, legs, or hands purposefully. He has no speech. He experiences seizures on a daily basis, despite being on significant doses of anti-seizure medications. Because of his inability to swallow safely, he had a gastrostomy tube placed approximately one year ago and now takes all of his feeding via the tube. He continues to live at home with his parents.

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

Continue reading "Sacramento Kaiser Medical Malpractice Lawsuit Due Inaccurate Oral Intake, Part 3 of 4 " »

The following blog is provided as an example of a Kaiser medical malpractice lawsuit to aid potential clients in how a lawsuit is examined and conduced. 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 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 personal injury lawsuit and its proceedings.)

At 22 hours of life, the infant was weighed and found to have lost 7.8 percent of his birth weight. This loss is considered significantly greater than normal. Kaiser had a policy and procedure in place such that, if there was a weight loss of 7 percent, supplemental feedings should be given under a variety of circumstances, including the baby being lethargic and not nursing vigorously enough to empty the breast. The records indicated that, on August 11, 2005 at 6:00 a.m., Plaintiff reported that the infant did not want to breast-feed. The infant was supplemented with formula at 1:00 a.m. and 4:30 a.m. on August 11, 2005.

Several notations were made on the nursing flow sheet for August 11, 2005, reflecting time spent by the infant at his mother's breasts. The records indicated satisfactory initiation of breast-feeding on a number of occasions. However, Plaintiff specifically recalled that the infant was not breast-feeding effectively at any time from birth through and including the morning of August 12, 2005. Her breasts became blistered and painful from the unsuccessful feeding attempts.

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

Continue reading "Birth Injury In Kaiser Medical Malpractice Lawsuit Causes Sever Injury in Child, Part 2 of 4 " »

The following blog is provided as an example of a Kaiser medical malpractice lawsuit to aid potential clients in how a lawsuit is examined and conduced. 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 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 personal injury lawsuit and its proceedings.)

CASE INFORMATION
According to Plaintiff: The minor plaintiff was born at term at defendant Kaiser Foundation Hospital in Sacramento, California on August 9, 2005. He was delivered by non-elective C-section because of fetal distress. He appeared normal and had normal Apgar scores at birth.

Plaintiff, the infant's mother, had developed gestational diabetes during this, her first pregnancy. The gestational diabetes was well controlled with diet and medication. The infant's birth weight was slightly more than 7 lbs, which was well within the normal range. However, because of the risk of infants of diabetic mothers developing hypoglycemia (low blood sugar), the infant's blood sugar was checked four times during the first 24 hours of life, pursuant to Kaiser's protocol. The first measurement was 45mg/dl (the lower limit of normal), the next two measurements were 65 and 66, and the final measurement was 47.

The plan was for the infant to be breast-fed. The medical records reflected that the infant was not breast-feeding successfully on the first day of life. Accordingly, he required supplementation with formula at five hours of life and again at 10 hours of life. A lactation consultant saw the Plaintiff and the infant on August 10, 2005, and, per her chart notation and testimony, she was unable to facilitate initiation of successful breast-feeding.

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

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, 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 personal injury lawsuit and its proceedings.)

In sum, the facts presented at trial, which were not rebutted by any substantial evidence, showed that Plaintiff entered the hospital with an intact foot in which all the bones and joints, except for the navicular, were free of fractures and dislocations. The admitting x-ray established this. After a week of hospitalization under the exclusive care of Defendants, Plaintiff's foot was destroyed with many fractures and joint dislocations. Trial testimony confirmed that any attempt to surgically repair Plaintiff's foot carries a high risk of amputation.

Based on the evidence, Plaintiff, an elderly woman who must care for herself, personally suffered great physical and mental injuries, and financial loss due to those injuries. Future medical expenses, surgeries, and home care will be required to correct Plaintiff's medical condition. As the evidence showed at trial, defendant, the Regents, is responsible for Plaintiff's catastrophic injuries, and past and future physical and mental pain and suffering. For these reasons, the Court should grant Plaintiff a new trial based on the fact that there is insufficient evidence to support the verdict of the jury.

Conclusion

Based on the evidence presented at trial, each of the Plaintiff's claims against defendant Regents was proven by a preponderance of the evidence. No other reasonable conclusion can be legally deductible from the evidence.

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

Continue reading "New Trial Sought By Sacramento Woman After Negligent Medical Treatment, Part 5 of 5" »

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, 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 personal injury lawsuit and its proceedings.)

8. Based on the evidence at trial, including the testimony of the experts, and the x-rays, there can be no cause for Plaintiff's injuries other than the negligent care she received during her May 2009 hospitalization at defendant Regents hospital. The admitting x-ray was misread, and the early acute phase of Charcot clearly visible in the navicular bone, was missed. Therefore, the medically necessary treatment of protecting the foot until the time limited Charcot process quieted down was not provided. Compounding these errors, Plaintiff was told by defendant doctors and other defendant Regents' employees to walk the long corridor on an unprotected foot during the acute phase. With each step, more bones were breaking and joints were dislocating. These facts, supported by substantial testimony, were uncontroverted.

9. Plaintiff was under the exclusive care and control of defendants at the time of the injuries. There were no intervening causes. In this case, it is not possible to separate the negligence from the cause of Plaintiff's injuries. It is apparent that the jury improperly speculated about some other unnamed and unknown cause that was not part of the evidence presented at trial.

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

Continue reading "Sacramento Woman Fights Improper Jury Verdict In Medical Malpractice Case, Part 4 of 5" »

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, 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 personal injury lawsuit and its proceedings.)

2. In evaluating testimony, the standard of medical care can be proven only through expert testimony. Landeros v. Flood (1976) 17 Cal.3d 399, 410. The expert orthopedic surgeon called by Plaintiff, Dr. Morgan Lee, was the only expert witness qualified by his practice to present testimony regarding the treatment of Charcot Foot, except Dr. Lopez, Mrs. Johnson's treating doctor, who agreed that the only way to prevent ongoing collapse of the bones in the foot was by placing the foot in a cast.

3. Dr. Lee testified that the negligence of the University doctors in failing to timely cast, boot and otherwise protect Plaintiff's left foot during the acute phase of Charcot's, directly caused the injuries she suffered while an inpatient at the University Medical Center Hospital in May 2009. This testimony was uncontroverted.

4. Dr. Lee explained the time limited process of Charcot Foot, and the absolute necessity of casting/booting the foot during the acute phase when the bones are subject to fractures and dislocations or subluxations. This testimony was uncontroverted.

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

Continue reading "Sacramento Orthopedic Physicians Commit Medical Malpractice, Part 3 of 5" »

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, 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 personal injury lawsuit and its proceedings.)

The Evidence Presented Does Not Support The Verdict As To Plaintiff's Claim for Medical Professional Negligence Against Defendant Based on the Jury's Finding that Doctors White and Brown Were Negligent.

As set forth in the minutes of the Court, Plaintiff Johnson presented substantial evidence supporting her claims for medical professional negligence against the Regents of the University of California ( Regents ) based upon the professional negligence of the Regents' employees. In fact, the jury found that defendant's employees, Ellen White, M.D., and Phillip Brown, M.D., were negligent in their diagnosis or treatment of Plaintiff. Yet, the jury did not rule that their negligence was a substantial factor in causing harm to Plaintiff.

Plaintiff Johnson's negligence claims against the Regents was supported by the uncontradicted testimony of Morgan Lee, M.D., the only qualified orthopaedic expert who testified at trial. Defendant did not present any expert testimony regarding the specific claims of medical negligence relating to the injuries suffered by Plaintiff, as no other orthopaedic expert testified on behalf of defendant.

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

Continue reading "Negligent Doctors Cause Sacramento Woman To Lose Foot, Part 2 of 5" »

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, 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 personal injury lawsuit and its proceedings.)

Plaintiff's Notice of Motion and Motion for New Trial; Memorandum of Points and Authorities

Plaintiff, Billie Johnson, will, pursuant to her previously filed Notice of Intent to Move for New Trial, and does hereby, move the Court for an order to vacate and set aside the verdict of the jury and judgment entered pursuant thereto in favor of Defendants and against Plaintiff Johnson, and to grant Plaintiff a new trial on each of her claims against Defendant for professional negligence pursuant to California Code of Civil Procedure §657 and §657.6 in particular.
This motion will be based on this Notice; the evidence presented at trial; all pleadings, papers and records in this action; the minutes of the Court; and this memorandum of points and authorities; and such additional argument as the Court may permit Plaintiffs to present.

MEMORANDUM OF POINTS AND AUTHORITIES

Prefatory Statement

A new trial is proper upon a showing that due to procedural or legal error, an issue of fact requires re-examination after trial by jury, court or referee. Civ. Proc. Code §656. The error must result in a miscarriage of justice. Cal. Const. Art. VI, §13. Upon proper showing, the jury's verdict and subsequent judgment may be vacated ... and a new and further trial granted on all or part of the issues, on application of the party aggrieved ... Civ. Proc. Code §657.

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

Continue reading "Sacramento Woman Files Medical Malpractice Lawsuit Against Hospital, Part 1 of 5" »

It is worth noting that situations similar to those described in this medical negligence 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 personal injury lawsuit and its proceedings.)

To recover for NIED as a bystander witness, a plaintiff must be present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim. (Thing v. LaChusa, supra, 48 Cal.3d at pp. 667-668.) In Bird v. Saenz, supra, 28 Cal.4th at pp. 920-921, the Supreme Court reiterated the Thing requirement that the plaintiff be present at the scene of the injury-producing event at the time it occurs, and contemporaneously be aware that it was causing injury to the victim. In Bird, the plaintiffs were in the waiting room while their mother was negligently operated on, with the result the Bird plaintiffs "had no sensory perception whatsoever of the [injury-producing event] at the time it occurred." (28 Cal.4th at p. 917.) The Bird court observed that the contemporaneous awareness element requires a contemporaneous awareness that a close relative is being injured. (28 Cal.4th at p. 916.) The Supreme Court explained, "a rule permitting bystanders to sue for NIED on account of unperceived medical errors hidden in a course of treatment cannot be reconciled with Thing's requirement that the plaintiff be aware of the connection between the injury-producing event and the injury." (28 Cal.4th at p. 921.)

In this case, Gillian Smith is apparently attempting to recover damages for injuries to her family members, including her daughter. However, Universal had no connection with her family members or her daughter.

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

Continue reading "Mother Sues Sacramento Doctor And Hospital For Malpractice, Part 6 of 6" »

It is worth noting that situations similar to those described in this medical negligence 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 personal injury lawsuit and its proceedings.)

b. The Allegations Do No Support a Claim for NIED Based on a Bystander Witness Theory.

The third case relied on by Gillian Smith is Ochoa v. Superior Court, supra, 39 Cal.3d 159. Ochoa is a bystander witness case. Plaintiffs were the surviving parents of Rudy Ochoa, who as an inmate in the Santa Clara County juvenile hall. His parents visited him and found him extremely ill. The mother spoke with authorities, expressing concern that her son was not receiving necessary treatment. His mother was at his bedside and made repeated requests that her son receive medical treatment, including requesting that she be allowed to take him to a private physician. She remained at her son's bedside. The son died.

The Supreme Court held that the mother could assert a cause of action for NIED as a bystander witness because she had personally witnessed the failure of the medical personnel at the juvenile hall to provide medical care to her son. The court further held that the father could not assert the claim because he had not witnessed the lack of care but had only been told of the situation by his wife. (See Part 6 of 6.)

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

It is worth noting that situations similar to those described in this medical negligence 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 personal injury lawsuit and its proceedings.)

Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, also has no application here. There, the family member, the husband of the patient, sued based on the emotional distress he suffered when his wife, following the dictate of the health care provider, informed him that she had a sexually transmitted disease. The transmission of this information caused a substantial disruption of the marriage and substantial emotional distress on the part of the husband. As it turned out, the wife did not have a sexually transmitted disease. In Molien, the doctor breached a duty because the doctor directed his patient, the wife, to advise the husband of the diagnosis. Here ,Gillian Smith, the patient, not the family member, is suing to recover damages she Kelly allegedly suffered because she exposed her family to an allegedly contagious disease. As alleged, no defendant directed Gillian Smith to advise a family member regarding any diagnosis. Molien does not apply.

Directly on point is Huggins v. Longs Drug Stores (1993) 6 Cal.4th 124. In that case, parents tried to sue under a direct victim theory to recover NIED because they had unwittingly given their two-month-old son an overdose of medication, causing their son substantial injuries. The parents took a prescription for their son to a Longs Drug Stores pharmacy to be filled. The pharmacy wrote directions for five times the dosage ordered by the doctor.

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

Continue reading "Parents Suffer Severe Emotional Distress Due To Malpractice At Sacramento Hopsital, Part 4 of 6" »

It is worth noting that situations similar to those described in this medical negligence 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 personal injury lawsuit and its proceedings.)

GILLIAN SMITH DOES NOT HAVE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

In the opposition, Gillian Smith asserts that she has a valid cause of action for negligent infliction of emotional distress ("NIED") because "Defendants failed to diagnose, treat and warn Plaintiffs of the impending danger to which she unknowingly exposed family members and the public." Plaintiff relies on Burgess v. Superior Court (1992) 2 Cal.4th 1064; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916; and Ochoa v. Superior Court (1985) 39 Cal.3d 159. These cases do not support a claim for negligent infliction of emotional distress by Gillian Smith.

a. The Allegations Do No Support a Claim for NIED Based on a Direct Victim Theory.

By citing to Burgess and Molien, Gillian Smith is apparently contending that she can recover for NIED as a direct victim based on her allegedly exposing family members and the general public to the allegedly contagious disease. There is no merit to the claim.

Burgess v. Superior Court, supra, 2 Cal.4th 1064, has no application to this action. Burgess is limited to the question addressed by the Supreme Court: Can a mother recover damages for negligent inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery? (2 Cal.4th at p. 1069.)

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

Continue reading "Doctors Negligently Treat Sacramento Girl Who Suffers Nasty Infection, Part 3 of 6 " »

It is worth noting that situations similar to those described in this medical negligence 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 personal injury lawsuit and its proceedings.)

These allegations have nothing to do with the claim by plaintiff Gillian Smith for negligence. Gillian Smith is seeking to recover damages for the loss of her daughter's consortium. Recovery of such damages is precluded by Baxter v. Superior Court (1977) 19 Cal.3d 461. If plaintiff Gillian Smith is trying to recover damages for negligent infliction of emotional distress as a bystander witness of the injuries allegedly suffered by her daughter, she has not alleged any facts showing that she had a contemporaneous awareness of any injury at the time it was occurring as required under Thing v. LaChusa (1989) 48 Cal.3d 644, 667-668 and Bird v. Saenz (2002) 28 Cal.4th 910, 920-921.

It is not clear from the opposition to the motion to strike what position Gillian Smith is taking. The opposition states that the first and second causes of action are properly pled and that, therefore, the motion to strike should be denied. However, the motion to strike is not directed at either the first or second causes of action, it is limited to certain allegations set forth in paragraph 12 regarding Gillian Smith allegedly exposing her family, including her daughter, plaintiff Natalie Smith, to the allegedly contagious infectious disease. Gillian Smith cannot recover for loss of her daughter's consortium or for negligent infliction of emotional distress as a bystander witness. The motion to strike should be granted.

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

Continue reading "Sacramento Child Severely Infected Due To Medical Malpractice, Part 2 of 6" »

It is worth noting that situations similar to those described in this medical negligence 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 personal injury lawsuit and its proceedings.)

Reply of Defendant Universal Medical Center (Also Sued as Universal Health System) to Plaintiffs Gillian and Natalie Smiths’ Opposition to Defendant's Motion to Strike Portions of Complaint

Defendant Universal Medical Center (also sued as Universal Health System) files this reply to Plaintiffs' opposition to defendant's motion to strike.

INTRODUCTION

This action is premised on care rendered to plaintiff Gillian Smith. Gillian Smith contends that Universal and the other defendants provided negligent care to her regarding a bump on her left hand. Gillian Smith alleges that she was negligently notified that she did not test positive for a highly contagious strain of staphylococcus ("MRSA"), causing her to fail to take precautionary measures and to "unknowingly expose her family, including her daughter, the minor plaintiff, Natalie Smith, to the MRSA, resulting in the daughter's hospitalization. The first cause of action is asserted by Gillian Smith relating to the care she received at Universal. Universal moves, under Code of Civil Procedure sections 435 and 436, to strike from paragraph 12 of the first cause of action, page 3:27 to page 4:2, of the complaint:

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

Continue reading "Sacramento Family Files Medical Malpractice Suit Against Hospital, Part 1 of 6" »

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, 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 personal injury lawsuit and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES

EVIDENCE OF PLAINTIFF'S DISPUTE WITH ANY EMPLOYEES, DOCTORS, MEMBERS, PHYSICAL THERAPISTS OR OFFICE STAFF OF ABC COMPREHENSIVE MEDICAL GROUP IS INADMISSIBLE AND WOULD BE PREJUDICIAL UNDER EVIDENCE CODE SECTION 352

Evidence Code Section 352 provides:

The Court, in its discretion, may exclude evidence if its probative value is substantially outweighed by the probability that its its admission will:

a. necessitate undue compensation of time, or,

b. create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

In the instant case, the probative value of this evidence is non existent, as there is no relevant reason to admit any evidence of plaintiff's minor disputes over scheduling of times for and of treatments with any employees, doctors, members, physical therapists or office staff of ABC Comprehensive Medical Group to the jury.

On the other hand, the prejudice inherent in the admission of such evidence is substantial to the plaintiff, as it would confuse the issues present in this case, and/or mislead the jury with respect to the material issues in this case.

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

Continue reading "Sacramento Chiropractor Sued For Malpractice After Causing Severe Injuries, 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, 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 personal injury lawsuit and its proceedings.)

Plaintiff Donald Hall’s Motion in Limine No. 2 to Exclude Evidence of Plaintiff's Disputes with ABC Comprehensive Medical Group; Memorandum of Points and Authorities

Plaintiff, Donald Hall, hereby moves this Court for an order to exclude any evidence of plaintiff's disputes with ABC Comprehensive Medical Group; and an order directing all parties, their counsel, witnesses and other persons participating in the trial to refrain from any reference, mention of, or allusion to plaintiff's disputes with any employees, doctors, members, physical therapists or office staff of ABC Comprehensive Medical Group.

This motion is made on the grounds that said evidence is inadmissible pursuant to Evidence Code Sections 350, 351, and 352, as its probative value is outweighed by the probability of undue prejudice against this plaintiff. Any comment or attempted introduction of the above evidence would be improper and highly prejudicial to plaintiff.

Further, even if the court sustained an objection to the evidence at trial and instructed the jury to disregard it, the evidence would be so prejudicial that plaintiff could not receive a fair trial.

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

Continue reading "Chiropractic Patient Sues Sacramento Sports Clinic For Malpractice, 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, 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 personal injury lawsuit and its proceedings.)

DEFENDANTS' ARGUMENT THAT PLAINTIFF'S EXPERT SHOULD BE EXCLUDED FROM TESTIFYING AT TRIAL BECAUSE HE DID NOT READ DEFENDANT'S DEPOSITION LACKS MERIT OR IN THE ALTERNATIVE IS MOOT

Dr. Hill did not have the opportunity to read defendant, Dr. Li's deposition, because it was taken three days prior to Dr. Hill's deposition and was not available for him to review. Plaintiff asserts that the fact that Dr. Hill did not review defendant's deposition is of no consequence because defendant claims that 5 plaintiff's allegations, in terms of how the adjustment occurred and the fact that she did not give consent for the adjustment, never occurred. If defendants believe that it is an important point that Dr. Hill did not read defendant's deposition then they are welcome to cross-examine him on it at the time of trial. But this does not serve as a basis to exclude him as an expert.

DEFENDANTS' ARGUMENT THAT PLAINTIFF'S EXPERT SHOULD BE EXCLUDED FROM TESTIFY AT TRIAL BECAUSE HE WAS NOT PROVIDED WITH THE DEPOSITIONS OF THE SUBSEQUENT TREATERS ALSO LACKS MERIT

Following her treatment with defendants on May 25, 2007, plaintiff underwent arthroscopic surgery by a Dr. Gray for a meniscal tear.

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

Continue reading "Sacramento Chiropractic Malpractice Results In Patient's Meniscal Tear, Part 7 of 7" »

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, 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 personal injury lawsuit and its proceedings.)

For example, in this regard, Dr. Hill testified as follows:

He does not believe Dr. Li was performing an adjustment on plaintiff's knee. It is his understanding that plaintiff's knee hurt and that Dr. Li decided to do something about it and during her evaluation she mentioned that she does not feel comfortable with Dr. Li touching the knee and that he did a manipulation anyway that made her knee worse.

He does not know if plaintiff received a knee adjustment from defendant facility or defendant prior to the date in question because that information is not written in the chart, and it does not say who treated her on any one date.

He could not tell what chiropractic adjustment was done to Ms. Welden on May 25, 2007, because he could not read the notes very well; he could not understand the chart.

He does not know the specific forces used during defendant's adjustment of plaintiff because he doesn't know what adjustment defendant used. He can only base his opinion on what the patient says was done. He does not know if Dr. Li did an evaluation of plaintiff's knee prior to the adjustment because the identity of the person who did the evaluation is not noted.

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

Continue reading "Experts Battle In Sacramento Medical Malpractice Case, Part 6 of 7" »

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, 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 personal injury lawsuit and its proceedings.)

DR. LI IS RESPONSIBLE FOR THE DISCREPANCY ABOUT WHETHER HE PERFORMED A RIGHT KNEE ADJUSTMENT OR A LEFT HIP ADJUSTMENT

The triable issues in this case include: what did Dr. Li do to plaintiff during the subject visit, and whether those actions were negligent. Plaintiff contends that Dr. Li performed a simple left hip manipulation, which coincidentally involved stabilizing plaintiff's right lower extremity, by placing his hand on or near plaintiff's right knee in order to gain traction when applying force to plaintiff's left hip. This is what appears to have occurred. The discrepancy in what really occurred arises from plaintiff's lay person perception of the subject event- that Dr. Li appeared to be doing a right knee adjustment, and the fact that Dr. Li's chart notes for the subject visit are absent.

No where in the patient's chart did Dr. Li record what he exactly did that day, and the places where notes are made is very illegible. As a result of this, on the one hand, plaintiff describes what she perceived as a manipulation of her right knee. On the other hand, defendant seems to contend that he was performing a left hip adjustment, which plaintiff contends involved applying force to her right knee. (See Part 6 of 7.)

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

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, 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 personal injury lawsuit and its proceedings.)

DR. HILL SPECIFICALLY STATED HIS OPINIONS AT THE TIME OF HIS DEPOSITION

In addition to basing his opinions upon reliable medical evidence as set forth above, Dr. Hill clearly stated what opinions he is going to express at the time of trial:

1) He is going to be testifying regarding both general standard of care or lack thereof for chiropractors.

2) He is going to be offering opinions regarding how chiropractic adjustment can cause injury.

3) He is going to be offering opinions as to what the standard of care requires for obtaining a history.

4) He is going to be offering an opinion as what the standard of care requires when conducting a physical examination.

5) He is going to be offering an opinion as to when the standard of care calls for ordering an x-ray and/or an MRI..

6) He is going to be offering an opinion specifically as to the standard of care as it applies to the manner in which defendant Daniel Li, D.C., performed the adjustment on plaintiff.

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

Continue reading "Sacramento Woman Hires Expert in Chiropractic Malpractice Lawsuit, Part 4 of 7" »

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, 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 personal injury lawsuit and its proceedings.)

ARGUMENT

DEFENDANTS’ CONTENTION THAT PLAINTIFF'S EXPERT MUST BE EXCLUDED BECAUSE THE EVIDENCE HE RELIED UPON IN FORMING HIS OPINIONS LACKS FOUNDATION IS INCORRECT MISLEADING AND WITHOUT MERIT

Dr. Hill is plaintiff's standard of care expert and has clearly demonstrated his expertise, and is qualified to express his opinion in the area of chiropractic care. Dr. Hill's testimony rests upon a review of plaintiff's medical records from defendants' facility and chiropractors therein, and an MRI report ordered by the Defendant/Defendant facility, from XYZ Radiology of Sacramento, dated July 28, 2007, of Plaintiff's right knee. Dr. Hill also had an understanding of plaintiff's version of how the event occurred as recited to him by Plaintiff's attorney, co-counsel, Navid White, who read those portions of plaintiff's deposition wherein she described how the subject event occurred.
Dr. Hill testified in his deposition as to the records he reviewed and relied upon in forming his opinions. Specifically, at his deposition:

1. Dr. Hill had a stack of records in front of him which consisted of the XYZ Radiology report from Sacramento Imaging, and the records from Defendant's facility, Universal Chiropractic. Dr. Hill reviewed these records in anticipation of his deposition.

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

Continue reading "Sacramento Chiropractic Office Sued For Medical Malpractice, Part 3 of 7" »

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, 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 personal injury lawsuit and its proceedings.)

FACTS

Plaintiff originally presented to defendants' facility for chiropractic adjustment and treatment. Upon evaluation by another chiropractor in defendant's office, it was found that plaintiff had tenderness in and around her right knee. On May 25, 2010, after the first chiropractor believed she was unable to perform a manipulation of plaintiff's left hip she summoned defendant for his assistance.

Plaintiff alleges that defendant performed and/or attempted to perform a chiropractic manipulation on plaintiff's left hip, which coincidently involved the use of plaintiff's right knee. Plaintiff alleges that when defendant was preparing to perform the manipulation, and while he had his hand on plaintiff's right knee, plaintiff experienced a great deal of pain and discomfort in her right knee and asked defendant to not perform the manipulation. Plaintiff alleges that defendant went ahead and performed the manipulation anyway, delivering a great amount of force to her right knee, which caused tearing of the meniscus in her right knee.

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

Continue reading "Woman's Knee Damaged By Sacramento Chiropractor In Medical Malpractice Suit, Part 2 of 7" »

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, 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 personal injury lawsuit and its proceedings.)

Plaintiff' Anna Greene’s Opposition to Defendants' Motion in Limine No. 5 to Exclude Plaintiff's Expert, Ronald Hill, D.C.; Memorandum of Points And Authorities In Support Thereof.

Plaintiff submits this Opposition to Defendants' Daniel Li and ABC Chiropractic, Inc.’s (collectively Defendants ), Motion in Limine No. 5, for an order excluding the testimony of plaintiff's standard of care expert, Ronald Hill, D.C.

This Opposition is based on the following Memorandum of Points and Authorities, the exhibits attached hereto, and on such further argument, evidence or supplemental points and authorities as may be presented at the time of the hearing.

MEMORANDUM OF POINTS & AUTHORITIES

INTRODUCTION

CURRENT POSTURE

Plaintiff's complaint alleges causes of action for professional negligence, battery, assault, false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress.

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

Continue reading "Sacramento Woman Files Medical Malpractice Suit Against Chiropractor, Part 1 of 7" »

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, 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 birth injury lawsuit and its proceedings.)

THE THIRD CAUSE OF ACTION FOR WILLFUL MISCONDUCT FAILS

The Third cause of action, entitled "Willful Misconduct," is based on the same allegations as those contained in the First cause of action for medical malpractice. The pleading does not contain the type of allegations of intentional conduct needed to maintain a cause of action for Willful Misconduct.

Willful Misconduct is generally an element within a cause of action or a claim for damages, such as elder or dependent adult abuse or a claim for punitive damages, and it is doubtful that there exists an independent cause of action in California for willful misconduct. Willful misconduct should be categorized as battery, fraud, etc. The plaintiff seems to be attempting to plead some sort of catch-all intentional tort under the title of "Willful Misconduct."
Nevertheless, in the event that there does exist such a cause of action, plaintiff has failed to set forth facts in regard to the demurring defendants sufficient to maintain the cause of action. In Nazar v. Rodeffer, 184 Cal. App.3d 546, 552 (1986), the court discussed the concept of willful misconduct as follows:

"The concept of willful misconduct has a well-established, well-defined meaning in California law. Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results."

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

Continue reading "Willful Misconduct By Sacramento Doctors Basis For Malpractice, Part 5 of 5" »

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, 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 birth injury lawsuit and its proceedings.)

Here, plaintiff alleges that defendants failed to advise her mother, Haley White, that a pregnancy with twins carries more risks than a single fetus, and that the defendants failed to advise the plaintiff's mother of her right to an abortion. Plaintiff does not allege that there was anything wrong with the pregnancy, other than the fact that the plaintiff was a twin, or anything else to suggest that the plaintiff's mother was at risk for complications or needed special precautions to prevent pre-term labor. Unlike Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 165 Cal.Rptr. 477, where a properly performed genetic test would have provided a high probability (id. at p. 815) of disclosing the risk of Tay-Sachs disease, there is no test that could have been offered to plaintiff's mother which would have revealed the potential problems allegedly suffered by plaintiff, Joan White. Additionally, when testing revealed the shortening of Haley White's cervix, and cerclage was recommended, Ms. White refused it.

A hypothetical possibility that some unstated or unknown action on the part of the moving defendants might have revealed some problem does not establish a reasonably probable causal connection (Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 403) between defendants' alleged negligence and plaintiff's injuries. A less than 50-50 possibility that defendants' omission caused the harm does not meet the requisite reasonable medical probability test of proximate cause. (Id. at p. 404).

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

Continue reading "Failure To Act By Sacramento Doctors Results In Birth Injuries, Part 4 of 5" »

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, 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 birth injury lawsuit and its proceedings.)

PLAINTIFF’S COMPLAINT LACKS
SUFFICIENT FACTUAL SUPPORT AND IS UNCERTAIN

California recognizes a parent's cause of action for the wrongful birth of a genetically deformed child where the physician negligently failed to inform the parent of the risk of bearing such a child. (Turpin v. Sortini (1982) 31 Cal.3d 220, 225, 182 Cal.Rptr. 337, 643 P.2d 954) In a successful wrongful birth and wrongful life action, the parents may recover for medical and extraordinary teaching and training expenses incurred during the child's minority, but the child may not also recover for those same expenses. (Turpin v. Sortini, supra, 31 Cal.3d at p. 236.) The child may only recover medical expenses and special damages where the parents are unavailable to sue or where the expenses are incurred beyond the time of the parents' legal responsibility for such care. (Ibid.) In addition, the child may not recover for pain and suffering and other general damages (id. at pp. 238-239), or for a loss of earning capacity (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 614, 208 Cal.Rptr. 899).

As in ordinary medical malpractice cases, the plaintiffs in a wrongful life and wrongful birth case must establish the following basic elements: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. (Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433; Turoin v. Sortini, supra, 31 Cal.3d at pp. 229-230.)

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

Continue reading "Malpractice By Sacramento Physician Leads To Wrongful Birth Lawsuit, Part 3 of 5" »

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, 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 birth injury lawsuit and its proceedings.)

PLAINTIFF'S COMPLAINT IS PROPERLY SUBJECT TO DEMURRER

California Code of Civil Procedure § 430.10 provides the proper grounds for demurrer, stating in pertinent part:

"The party against whom a complaint ... has been filed may object, by demurrer ... to the pleading on any one or more of the following grounds:(e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain." As used in this subdivision, "uncertain" includes ambiguous and unintelligible. At this time, demurring defendants demur solely to plaintiff's Second cause of action for Wrongful Life and Third cause of action for Willful Misconduct, California Code of Civil Procedure § 430.50(a) states in pertinent part, "A demurrer to a complaint ... may be taken to the whole complaint ... or to any of the causes of action stated therein."

It is well settled that a plaintiff must set forth specific facts in a Complaint in order to enable a defendant to intelligently respond to the pleading without having to guess or speculate as to the items of material or essential facts. (Ankenv v. Lockheed Missile & Space Company, (1979) 88 Cal.App.3d 531, 537). In addition, in examining a Complaint for its legal sufficiency to withstand a demurrer, [a] demurrer admits all material and issuable facts properly pleaded [citations omitted]. However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. (Gruenberg v. Aetna Insurance Co, (1973) 9 Cal.3d 566, 572).

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

Continue reading "Wrongful Birth Suit Filed Against Sacramento Hospital, Part 2 of 5" »

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, 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 personal injury lawsuit and its proceedings.)

Defendants Barbara Smith, M.D. and the XYZ Perinatal Medical Group, Inc.'s Demurrer to Plaintiff Joan White's Complaint.

PLEASE TAKE NOTICE that defendants Barbara Smith, M.D. and XYZ PERINATAL MEDICAL GROUP, INC., will and hereby do Demur to plaintiff's Complaint on the following grounds:

1. The Second Cause of Action for Wrongful Life seeks non-recoverable damages and fails to state facts sufficient to state a cause of action, and is uncertain;

2. The Third Cause of Action for Willful Misconduct fails to state facts sufficient to state a cause of action, and is uncertain.

This Demurrer will further be based upon this notice, the attached Memorandum of Points and Authorities, all records and pleadings on file herein, and any other further oral and/or documentary evidence as may be presented at the time of this hearing of this Demurrer.

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

Continue reading "Mother Sues Sacramento Hospital For Medical Malpractice, Part 1 of 5" »

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, 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 personal injury lawsuit and its proceedings.)

DEFENDANTS' INFORMATION IS SPECULATIVE AT BEST. THERE IS NO CERTAINTY OR REASONABLE PROBABILITY THAT THE BENEFITS WILL INDEED BE AVAILABLE TO THE MINOR PLAINTIFF IN THE FUTURE

The defendant's assertion regarding the future services or benefits to which the minor child may be entitled to now or years into the future is speculative at best.Whether the benefits or services identified by defendant's expert witness will truly be available to and provided to plaintiff in the future is contingent upon many variables: (1) whether the public services identified have been, and will continue to be, funded by the Legislature, (2) whether the funding is adequate to meet the expressed goals and needs of the legislation, such as the numbers of personnel and expertise of personnel, as well as any necessary equipment and facilities, (3) the numbers of eligible recipients, and (4) whether such services may be available in other locales thereby inhibiting plaintiff or her family from living elsewhere.

It is impossible to predict, whether to a certainty or to a reasonable probability, whether the services and benefits identified by the defendants will be available to plaintiff now, a year from now, five years from now, or at any time in the future. Unlike rights which are secured by contract, the benefits or services identified by the defendant are not vested in plaintiff and may, as the public has seen, be lawfully terminated by the legislature.

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

Continue reading "Sacramento Birth Injury Victims Fight Insurance Company In Malpractice Lawsuit, Part 5 of 5" »

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, 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 personal injury lawsuit and its proceedings.)

Civil Code Section 3333.1 does not abrogate the collateral source rule as to any benefits which a medical malpractice plaintiff has received. Rather, the Legislature was precise in delineating which collateral sources were to be included in this exception to the collateral source rule; not all payments made by the state or federal governments were included. See Brown v. Stewart (1982) 129 Cal.App.3d 331.

The plain language of Civil Code Section 3333.1 provides that evidence may only be received of benefits which claimant has received. See Fein v. Permanente Medical Group (1985) 38 Cal.3d 137; Brown v. Stewart (1982) 129 Cal.App.3d 331; Robinson v. Pediatric Affiliates Medical Group (1979) 98 Cal.App.3d 907. Civil Code Section 3333.1 reasonably does not allow for the introduction of evidence concerning potential benefits to which plaintiff may be entitled, or which plaintiff may be eligible.

The uncertainty of an individual actually receiving future promised benefits was recognized by the Legislature as too speculative to include within Civil Code Section 3333.1.

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

Continue reading "Medical Malpractice Suit Filed Against Sacramento Physicians For Birth Injuries, Part 4 of 5" »

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, 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 personal injury lawsuit and its proceedings.)

CIVIL CODE SECTION 3333.1 DOES NOT PERMIT THE INTRODUCTION OF THE DEFENDANTS' PROFFERED EVIDENCE

Presumably, the defendant will assert that Civil Code Section 3333.1 permits the introduction of the information regarding future receipt of services from government agencies. Defendant's assertion is incorrect.

Civil Code Section 3333.1 provides in pertinent part:

"In ... an action for [medical] negligence, [the defendant] may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any state or federal income disability or worker's compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental or other health care services."

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

Continue reading "Catastrophic Birth Injuries Lead To Malpractice Suit Against Sacramento Hospital, Part 3 of 5" »

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, 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 personal injury lawsuit and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES

SUMMARY OF ISSUE PRESENTED

In this matter, it is likely that the defendant will attempt to offset his obligation for the minor plaintiff's damages, specifically the need for future medical and other services, by introducing evidence which provides that some future services or benefits may be available to plaintiff from governmental agencies and programs.

Plaintiff objects to the introduction of such evidence on several grounds:

(1) collateral source precludes such evidence;
(2) Civil Code Section 3333.1., which abrogates only part of the collateral source rule in medical negligence actions, does not permit the introduction of such evidence, and
(3) there is no certainty that the minor plaintiff will actually be able to receive, now or in the near or distant future, any such benefits in these troubling economic times with ever-increasing public budget cuts.

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

THE COLLATERAL SOURCE RULE PRECLUDES THE INTRODUCTION OF DEFENDANT'S SPECULATIVE EVIDENCE THAT THE MINOR CHILD MAY, IN THE FUTURE, BE ENTITLED TO RECEIVE SOME BENEFITS OR SERVICES FROM THE GOVERNMENT

Continue reading "Hospital Sued By Sacramento Woman For Birth Injuries And Malpractice, Part 2 of 5" »

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, 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 personal injury lawsuit and its proceedings.)

Plaintiff's Motion in Limine to Limit the Admissibility of Evidence That Plaintiff May be Entitled to Receive Benefits from Governmental Agencies and Programs

Plaintiff Ellen Choo herewith submits the following Memorandum of Points and Authorities regarding the Inadmissibility of Evidence that plaintiff may be entitled to receive benefits from governmental agencies and/or programs.

In summary, it is anticipated that the defendant physician, in an effort to offset his obligation for the damages wrought upon the minor plaintiff, will attempt to introduce evidence that the minor plaintiff may be entitled to receive services, such as therapy or vocational training, from certain governmental agencies and/or programs.

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

Plaintiff opposes the admissibility of such evidence for the following reasons:

(1) The collateral source rule precludes such evidence;

Continue reading "Sacramento Family Sues Doctors For Malpractice, Part 1 of 5" »

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, 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 action and its proceedings.)

Steven White, M.D.

Defendants anticipate that plaintiffs will attempt to introduce similar testimony from Dr. Steven White, who is an internist/infectious diseases physician, not an emergency physician. At deposition, Dr. White opined that Dr. Gold did not evaluate the patient quickly enough upon his arrival at Universal and that this delay was below the standard of care. However, Dr. White admitted that he has never worked as an emergency medicine physician at any facility during his career. (Deposition of Dr. White) Thus, Dr. White's opinion testimony relative to the standard of care for an emergency room physician should be excluded at trial pursuant to Section 1799.110.

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

EVIDENCE CODE SECTION 352 ALLOWS THE COURT TO PRECLUDE PLAINTIFFS FROM INTRODUCING THIS EVIDENCE AT TRIAL

Evidence Code Section 352 provides that evidence may be excluded if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice ... or of misleading the jury. Here, it cannot be disputed that any reference to the phantom prior incidents will unduly prejudice the defendants.

Continue reading "Sacramento Hospital's ER Doctors Commit Medical Malpractice, Part 5 of 5" »

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, 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 action and its proceedings.)

It is clear that all of Dr. Li's criticism against the hospital flow from his criticism of Dr. Gold's initial evaluation of the patient. But for Dr. Gold's failure to promptly contact an on-call general surgeon, there would have been no delay in properly treating the patient. According to Dr. Li, had Dr. Gold made that call, a general surgeon presumably would have been able to timely evaluate the patient and perform the debridement surgery. The performance of the debridement surgery at Universal would have negated the necessity of a transfer and ambulance transport to San Diego, of which Dr. Li was also critical. (Deposition of Dr. Li) Unfortunately, none of this testimony will be admissible at trial, per Section 1799.110.

In Miranda, appellant/plaintiff retained an orthopedic surgeon who had been on-call in hospital emergency departments to testify relative to emergency room physicians standard of care issues. At deposition, the physician admitted that he was not an emergency room physician. Miranda, supra, at 907. Rather, he was an orthopedic specialist who was on-call to the emergency room to consult on and treat orthopedic injuries. Id. The trial court granted a defense in limine motion to preclude the orthopedist from testifying at trial on emergency physician standard of care issues, per Section 1799.110. The Court of Appeal agreed with the trial court's decision, indicating that it "lacked the discretion" to allow the doctor to testify on those issues at trial. Id.

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

Continue reading "Malpractice By Sacramento ER Physicians Results In Wronful Death, Part 4 of 5" »

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, 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 action and its proceedings.)

Experts who do not have substantial professional experience in the emergency department within the last five years cannot testify as to the standard of emergency care, regardless of his or her expertise. Sigala v. Goldfarb (1990) 222 Cal.App.3d 1450, 1455-56 [266 Cal.Rtpr. 96].
Section 1799.110 applies to any suit involving a claim of negligent emergency room treatment by a hospital emergency room physician whether or not a physician is named as a defendant. Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d 637,646-47 [242 Cal.Rptr. 74].
Whether a proposed expert witness satisfies the requirements of Section1799.1 10 is an appropriate subject of a motion in limine. Miranda, supra, at 899, fn. 4.

Donald Li, M.D.

Defendants anticipate that plaintiffs will seek to admit the testimony of Dr. Donald Li, their retained general surgery expert, for the purposes of establishing that the treatment and care provided by Universal's emergency room physician, Dr. Andrew Gold, was below the standard of care. At deposition, Dr. Li testified that Dr. Gold's alleged failure to immediately contact an on-call general surgeon upon the patient's presentation to the emergency department was below the standard of care. (Deposition of Donald Li, M.D.)

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

Continue reading "Delay In Treatment by Sacramento Hospital Leads To Wrongful Death, Part 3 of 5" »

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, 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 action and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES

MEDICAL OPINION TESTIMONY OFFERED FROM ANYONE OTHER THAN PHYSICIANS AND SURGEONS WITH SUBSTANTIAL EMERGENCY DEPARTMENT EXPERIENCE IS INADMISSIBLE

In any action for damages involving a claim for negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute hospital emergency department. Health & Safety Code Section 1799.110(c).

The term "emergency medical coverage" means treatment given by those physicians who serve as dedicated medical staff of a hospital's emergency room, or by physicians who have been specially employed or otherwise engaged by a hospital to furnish medical treatment in an emergency room as emergency room physicians. Miranda v. National Emergency Services, Inc. (1995) 35 Cal.App.4th 894, 903-04 [41 Cal.Rptr.2d 593].

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

Continue reading "Man Dies In Sacramento Hospital Due To Medical Malpractice, Part 2 of 5" »

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, 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 action and its proceedings.)

Defendant University Hospital hereby moves this court in limine for an order that plaintiffs be precluded from introducing any medical opinion testimony or evidence relative to the treatment and care provided by emergency department physicians to decedent David Hall, Jr., at the Universal facility during his admission to that facility on August 11 and 12, 2008.

This motion is made on the grounds that such testimony is inadmissible per Health & Safety Code Section 1799.1 10. Moreover, these inadmissible opinion statements are highly prejudicial and should be excluded under.

This motion is based on the complete flies and records in this action, the memorandum of points and authorities accompanying this motion, the attached declarations, the exhibits attached hereto, and any oral and other documentary evidence allowed at the time of the hearing of this motion. (See Part 2 of 5.)

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

Continue reading "Sacramento Family Files Wrongful Death Suit Against Hospital, Part 1 of 5" »

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, 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 personal injury case and its proceedings.)

Dr. Wagner opines that had Dr. Hall properly aligned the tibial component to the tibia bone during the November 14, 2005 surgery, Ms. White's femur and tibia would more likely than not have been properly aligned with the patella so that the patella could slide properly in the trochlea groove and not mal-track or sublux. Proper alignment of all of the components would not have caused her the continued severe pain in her left knee, to a reasonable degree of medical probability, as demonstrated by her recovery after the November 30, 2005 surgery by Dr. Gregory Brown.

Dr. Wagner testifies that because Dr. Brown properly aligned each of the components of the total knee replacement, and thereafter, Ms. White did well, had less knee pain, and her patella was tracking well with minimal lateral subluxation. It is Dr. Wagner's expert opinion that had Dr. Hall properly aligned the tibial component during the November 30, 2005, Ms. White would more likely than not have experienced the severe pain in her left knee and subluxation and mal-tracking of her left patella and would not have needed the three subsequent surgeries performed on her left knee on January 27, 2005, May 28, 2005, and November 30, 2005.

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

Continue reading "Medical Experts Battle During Sacramento Woman's Malpractice Case, Part 9 of 9" »

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, 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 personal injury case and its proceedings.)

Expert Testimony Establishes That Defendants reaches of the Standard of Care Contributed to Ms. White's Injuries To a Reasonable Degree of Medical Probability

Expert testimony on the issue of causation is conclusive in a medical malpractice action and plaintiff must prove that the alleged breach of duty of the defendant was a substantial factor in causing their injuries. Bromme v. Pavitt, (1992) 5 Cal.App.4th 1487, 1498; Dumas v. Cooney, (1991) 235 Cal.App.3d 1593, 1603. Here, the testimony of Dr. Robert Lee establishes triable issues of fact that moving defendant's breaches of the standard of care substantially contributed to Ms. White's injuries, to a reasonable degree of medical probability.

It is Dr. Wagner's expert opinion that Dr. Hall's breach in the standard of care in his performance of the November 14, 2005 left total knee arthroplasty on Ms. White, to a reasonable degree of medical certainty caused Ms. White injuries in causing her additional and unnecessary pain and suffering and three subsequent surgeries on her left knee. Dr. Wagner explains that the three bones that come together at the knee joint are the patella (kneecap), the tibia (shin bone), and the femur (thigh bone).

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

Continue reading "Sacramento Woman's Pain And Suffering From Botched Knee Surgery Leads To Malpractice Action, Part 8 of 9" »

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, 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 personal injury case and its proceedings.)

Plaintiff sets forth triable issues of material fact demonstrating that moving defendant breached the standard of care in their care and treatment of Sandy White through the expert declaration of Board Certified orthopedic surgeon, Robert Lee, M.D. As more fully set forth in Dr. Wagner's declaration attached hereto, he has reviewed the relevant records in this matter and is qualified to offer his expert opinions with regard to Dr. Hall's negligence.

Based on his education, training, experience, and review of the records, Dr. Wagner opines that Dr. Hall breached the standard of care as follows: (a) Negligently fitting and placing the tibial component of the total knee replacement during the November 30, 2004 surgery, and (b) negligently failing to recognize and revise the components of the total knee replacements during Dr. Hall's subsequent surgeries on Ms. White's left knee on January 27, 2005 and May 28, 2005. The total knee replacement surgery of November 30, 2005, involved the placing of three components in Ms. White's left knee: a patellar component, a tibial component, and a femoral component.

It is Dr. Wagner's expert opinion that Dr. Hall breached the standard of care in failing to properly align the tibial component with the bone. This opinion is based on Dr. Gregory Brown's November 30, 2005 Operative Report, wherein Dr. Brown noted that the tibial component of Ms. White's left total knee replacement was internally rotated approximately 20 degrees. It is Dr. Wagner's expert opinion, based on the standard of care for orthopedic surgeons as it existed in November of 2005, that the standard of care required that there be no more than a 10-degree mis-alignment of the tibial component and that anything above a 10-degree mis-alignment of the tibial component is a breach of the standard of care.

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

Continue reading "Sacramento Woman Needs Multiple Surgeries Due Doctor's Malpractice, Part 7 of 9" »

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, 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 personal injury case and its proceedings.)

Expert Testimony Establishes Triable Issues of Material Fact Demonstrating Defendant's Negligence In the Care and Treatment of Plaintiff

It is proper for the Court to deny defendants' motion as plaintiffs present triable issues of fact through expert testimony that moving defendant breached the applicable standard of care in the care and treatment of Sandy White and that defendant's breaches contributed to Ms. White's injuries, to a reasonable degree of medical probability.

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

Expert Testimony Establishes That Defendant Breached the Applicable Standard of Care

The inherent nature of a medical negligence action, along with the applicable standard of care and causation, is a subject matter that is beyond the competency of a layman and, therefore, may be proved only by expert testimony. Landeros v. Flood (1976) 17 Cal.App.3d 399, 131 Cal.Rptr. 69. When the matter in issue is within the knowledge of experts only and not within common knowledge, expert evidence is conclusive and cannot be disregarded. Huber, Hunt, Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 136 Cal.Rptr. 603.

Continue reading "Doctors At Sacramento Hospital Committed Malpractice During Knee Surgery, Part 6 of 9" »

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, 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 personal injury case and its proceedings.)

LEGAL ARGUMENT

The High Standard for Granting a Motion for Summary Judgment, Which Is A Disfavored Remedy, Is Not Met By Moving Defendant

Motions for summary judgment are comparatively disfavored and widely understood as a drastic measure which should be used with extreme caution so that it does not become a substitute for trial. WYDA Associates v. Memer (1996) 42 Cal.App.4th 1702. Summary judgment procedure, inasmuch as it denies the right of an adverse party to a trial, is drastic and "should be used with caution ... " Steingart v. Oliver (1988) 198 Cal.App.3d 406, 411 (quoting Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35-36).

Moreover, a motion for summary judgment is not the appropriate method to try issues, but merely should be used to discover, through the use of affidavits, whether there are issues to be tried and whether the parties possess evidence which demands analysis at trial. Aaitui v. Grand Properties (1994) 29 Cal.App.4th 1369. The trial court's only function on a motion for summary judgment is issue-finding, not issue determination; the judge must determine from the evidence submitted whether there is a triable issue as to any material fact. CCP § 437c(c); see also Zavala v. Arce (1997) 58 Cal. App. 4th 915,926. If there is a single such issue, then the motion must be denied. Versa Technologies, Inc. v. Superior Court (Motsinger) (1978) 78 Cal. App. 3d 237, 240.

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

Continue reading "Sacramento Surgeons Try To Avoid Responsibility In Malpractice Case, Part 5 of 9" »

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, 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 personal injury case and its proceedings.)

The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of civil filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

On November 30, 2006, Dr. Gregory Brown performed a left total knee revision of the femoral and tibial components. Dr. Brown found significant internal rotation of the tibia, which was approximately 20 degrees up the tibial tubercle. The femoral component was also found to be internally rotated about 5 degrees. As such, Dr. Brown decided to perform revision of the tibial and femoral components to provide further stability to Ms. White's patella rather than do a tibial tubercle osteotomy. . His post-operative diagnosis was dislocation of the patellar component status post total knee arthroplasty and malalignment of the left total knee arthroplasty components. . Ms. White was discharged after almost one week on December 5, 2006 with instructions to follow up, receive home health care and physical therapy, and have a home safety evaluation.

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

Continue reading "Doctor's Negligent Knee Arthroplasty Leaves Sacramento Woman Little Choice But To Sue, Part 4 of 9" »

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, 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 personal injury case and its proceedings.)

In the months after the May 28, 2005 surgery by Dr. Hall, Ms. White experienced intensified pain in her left knee and continued to have problems with the maltracking of that patella. Ms. White had difficulty walking, squatting, kneeling, pushing, pulling, and sitting or standing for prolonged periods, and had a burning pain which radiated down the lateral aspect of her lower leg from the knee to her ankle with numbness on the plantar aspect of her left foot. On November 23, 2005, Ms. White was noted to have recurrent lateral dislocation of patella, status post total knee replacement and revision. She was referred to orthopedic specialist for a second opinion.

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

On February 3, 2006, Ms. White presented to orthopedic specialist, Dr. Michael Young, for a second opinion. Dr. Young noted that Ms. White's patella was dislocated laterally, and when compared to October of 2005 it was worse due to the wear.

On June 2, 2006, Ms. White presented to orthopedist Dr. Gregory Brown at UCI Medical Center for another opinion, whose impression was that Ms. White either had malpositioning of the femoral and/or tibial component, which could be accounted for both components being internally rotated on the respective positions.

Continue reading "Surgical Patient In Sacramento Files Malpractice Action After Multiple Procedures, Part 3 of 9" »

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, 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 personal injury case and its proceedings.)

STATEMENT OF FACTS

In November of 2004, Sandy White was scheduled for a left total knee arthroplasty by orthopedic surgeon, William Hall, M.D., after findings of moderate degenerative joint disease involving all three joint compartments in her left knee. On November 14, 2004, Dr. William Hall performed a total knee replacement on Ms. White's left knee.

In the months following the November 14, 2004 surgery by Dr. Hall, Ms. White continued to have pain in her left knee and maltracking of her left patella. Dr. Hall discussed the issue of patellar subluxation with Ms. White, when she presented to the clinic with complaints that her left knee felt like it would buckle at times. Dr. Hall recommended and performed arthroscopy with lateral release of the left patella on Ms. White on January 27, 2005. Dr. Hall noted that the prosthesis appeared intact and in good position except the patella which was noted to be certainly maltracking and subluxing laterally. Moreover, it was noted that Ms. White's flexion was limited. Dr. Hall performed lateral release under vision which he noted to be very complete proximally and distally and that this improved the position and tracking of the patella significantly and achieved 90-95 degrees flexion.

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

Continue reading "Botched Knee Replacement Surgery Leads To Sacramento Malpractice Suit, Part 2 of 9" »

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, 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 personal injury case and its proceedings.)

Plaintiff's Opposition to Defendant, William Hall, M.D's, Motion for Summary Judgment; Points and Authorities.

Plaintiff, Sandy White, hereby opposes Defendant William Hall, M.D.'S Motion for Summary Judgment. This Opposition is made on the grounds that there exist numerous triable issues of material fact demonstrating that Dr. Hall breached the applicable standard of care in the community in the care and treatment of Ms. White and that these breaches of the standard of care either caused and/or contributed to Ms. White's injuries. As such, plaintiff respectfully requests that the court deny Dr. William Hall's motion for summary judgment.

This Opposition is based upon this Notice, the attached Memorandum of Points and Authorities, the Declarations of Robert Lee, M.D., and Abbey Smith, Esq., the Separate Statement of Disputed Material Facts filed concurrently with this Opposition, and such other oral and documentary evidence as may be presented before or at the time of hearing of this Motion.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiff, Sandy White, has brought this medical malpractice action against Dr. William Hall based on his professional malpractice in his care and treatment of Ms. White. Plaintiff originally filed this action on April 27, 2007, with trial in this matter scheduled for February 25, 2009.

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

Continue reading "Sacramento Woman Files Medical Malpractice Suit Against Surgeon, Part 1 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.)

IN A MEDICAL MALPRACTICE ACTION A PARTY PRESENTING UNCONTRADICTED EXPERT TESTIMONY MUST PREVAIL

California Courts have held that where a defendant's expert testimony is uncontradicted, there is no triable issue of fact for the jury to consider and the defendant must prevail as a matter of law. Willard v. Haggemeister (1981) 121 Cal. App. 3d 406. The Court in Willard at page 412 described the preemptive weight of expert testimony in a malpractice action:

"Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony."
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In the case of Tresemer v. Barke (1978) 86 Cal.App.3d 656 at page 668 the Court of Appeal amplified this point and held:

“It is settled that an opponent's failure to file counter-affidavits admits the truth of the movant's affidavit ... The purpose of the summary procedure is to penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues .... "

Continue reading "Sacramento Hospital And Physicians Sued For Malpractice, Part 5 of 5" »

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.)

SUMMARY JUDGMENT SHOULD BE GRANTED WHERE THE ACTION IS WITHOUT MERIT AND PRESENTS NO TRIABLE ISSUE OF ANY MATERIAL FACT

Allowing the Court to look beyond the Complaint to determine whether the plaintiffs have any evidence to support their claim, the California Code of Civil Procedure §437c(a) provides in pertinent part as follows:

"Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit ... the motion shall be granted if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is well-established that a motion for summary judgment will be granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1558. A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. California Code of Civil Procedure §437c(p)(2). Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724.

Continue reading "Sacramento Family Files Wrongful Death Suit Based On Medical Malpratice, Part 4 of 5" »

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.)

James Smith remained in the Medical Center from February 19 through February 24, 2008. At that time Dr. Martinez ordered that he be discharged to a nursing home (Valley Healthcare Center - not a party) for rehabilitation. At the Valley Healthcare Center, James Smith was evaluated by neurologist (Dr. Greene - not a party). He noted in his consultation report that James Smith was complaining of dull aching pain, deep in the frontal sinus area but no other neurological symptoms. Dr. Greene specifically noted that he was mentally alert and oriented with no definite focal motor weakness. He ordered an MRI of the brain. James Smith was discharged from the Valley Healthcare Center on April 1, 2008.

Mr. Smith was eventually admitted to the Medical Center in May 2009. On or about May 19, 2009 he underwent surgery on his cervical spine. The surgery had to be terminated due to pulmonary/cardiac issues. He was returned to surgery on or about May 26, 2009 and underwent cervical spine surgery. Mr. Smith was discharged from the Medical Center to a skilled nursing facility on or about June 4, 2009. He remained at that skilled nursing, with a few temporary transfers to hospitals for inpatient care, until his death on June 23, 2009.

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

Continue reading "Doctor's Malpractice Results In Death Of Elderly Sacramento Man, Part 3 of 5" »

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

INTRODUCTION

This is a wrongful death action filed by the adult children of James Smith. This Motion for Summary Judgment is brought on behalf of defendant Peter Hill, M.D. Dr. Hill is an emergency physician who was involved in the care and treatment of James Smith when he presented to the emergency department of the Valley Medical Center on February 19, 2008.

Factually, on or about February 17, 2008, James Smith (age 85) suffered a fall at the premises of the co-defendant National Sporting Goods. On February 19, 2008, he was transported by ambulance to the emergency department of the Valley Medical Center with complaints of neck pain and severe headache. By history, he reported striking the front portion of his head during the fall of February 17.

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

Moving defendant Peter Hill, M.D. was the emergency physician on duty in the emergency department of the Valley Medical Center on February 19, 2008. He evaluated James Smith and ordered diagnostic studies, including a CT scan of the head, a CT scan of the cervical spine (neck), and flat plate x-rays of the neck (all interpreted by co-defendant radiologist Dr. Goldstein).

Continue reading "Sacramento Man's Wrongful Death Due To Malpractice, Part 2 of 5" »

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.)

Notice of Motion and Motion for Summary Judgment of Defendant Peter Hill, M.D.; Memorandum of Points and Authorities; Declaration of Clive Brown, M.D.

Defendant Peter Hill, M.D., will move this Court for an Order granting summary judgment against plaintiffs Robyn Lee, Individually and as the representative of the estate of James Smith, deceased, Andrea Lane, and Samantha Black (hereinafter "Plaintiffs") and dismissing all causes of action of the First Amended Complaint on file herein insofar as they relate to defendant Peter Hill, M.D.

This Motion will be brought pursuant to California Code of Civil Procedure §437c, on the grounds that Plaintiffs' First Amended Complaint has no merit and fails to present any triable issue of material fact insofar as defendant Peter Hill, M.D. is concerned because the care and treatment he provided to the plaintiffs' decedent was at all times appropriate and within the standard of care. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This Motion will be based upon this Notice, the Memorandum of Points and Authorities and Declaration of Clive Brown, M.D. served and filed herewith, the Separate Statement of Undisputed Material Facts served and filed concurrently herewith, and the pleadings, records, and files in this action. (See Part 2 of 5.)

Continue reading "Sacramento Slip And Fall Leads To Medical Malpractice Suit, Part 1 of 5" »

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" »

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 purpose of Civil Code § 3333.1(a) has generally been viewed as an attempt to eliminate the so-called double recovery obtained by plaintiffs who have their medical expenses paid by their own health insurance and still obtain damages for such expenses from defendant tortfeasors. Barme v. Wood (1984) 37 Cal.3d 174, fn.5. Subsection (a) overrides the collateral source rule to a considerable extent in medical malpractice cases, allowing a health care provider to introduce evidence of benefits payable to the plaintiff from the following collateral sources: private health, sickness, accident, or disability insurance, state disability insurance (SDI), workers' compensation, Social Security survivor's insurance, Social Security disability insurance (SSDI), or the Supplemental Security Income (SSI) program.

When a defendant chooses to introduce such collateral source evidence under Section 3333.1(a), the plaintiff may introduce evidence of the amounts she has paid, in insurance premiums for example, to secure those collateral source benefits. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The collateral source provision is one of the provisions of MICRA, which was intended to reduce the cost of medical malpractice insurance.

Continue reading "Sacramento Family Sues For Medical Malpractice, Part 3 of 5" »

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.)

Facts

Ms. Hill is receiving at least $1,158/month in the form of a VA death benefit, $288/month as a partial retirement payment based on the decedent's years of service/date of death, and an additional $60/month as a "family survivor" benefit. Plaintiff seeks economic damages including lost contribution based on decedent's earnings and projected work life expectancy.

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

Argument

The Collateral Source Rule

Under the traditional collateral source rule, a jury, in calculating a plaintiff's damages in a tort action, does not take into consideration benefits, such as medical insurance or disability payments, which the plaintiff has received from sources other than the defendant, i.e., collateral sources, to cover losses resulting from the injury. California Civil Code § 3333.1 alters this rule in medical malpractice cases and in wrongful death cases brought by the heirs of medical malpractice victims. Civil Code § 3333.1(a) provides an exception to the collateral source rule in medical malpractice cases. That section states that in the event the defendant so elects, in an action for a personal injury against a healthcare provider based upon professional negligence, she may introduce evidence of:

Continue reading "Medical Malpractice By Sacramento Physicians Causes Veteran's Death, Part 2 of 5" »

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.)

Defendant Medical Center Foundation Hospitals, Inc.'s Opposition to Plaintiff's Motions in Limine

GENERAL OBJECTIONS

Defendants object to the format of Plaintiffs motions to the extent that they fail to comply with any relevant requirements indicated in the Evidence Code, Code of Civil Procedure and the Rules of Court.

OPPOSITION TO PLAINTIFF'S MOTIONS IN LIMINE NO. 2 AND NO. 21 REGARDING COLLATERAL SOURCE BENEFITS

Introduction

Plaintiff seeks to exclude at trial all reference to the fact that any death benefit life insurance, Department of Veterans' Affairs benefits, or other benefits were paid (or will be paid in the future) to Plaintiff. (Plaintiff's Motion in Limine No. 2.) Plaintiff also seeks to exclude at trial all references regarding whether David Hill or Stella Hill, or both, received any compensation, insurance payment, or benefit from a collateral source as to the payment of medical, hospital, health care provider expenses. (Plaintiffs Motion in Limine No. 21.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A governing principle under MICRA is to disallow plaintiff from recovering amounts for medical expenses in excess of the amount paid or incurred. The reason for the collateral source rule is that such evidence gives the jury a more complete picture of the extent of damages and reimbursement already provided to the plaintiff.

Continue reading "Sacramento Veteran Suffers Wrongful Death By Negligent Doctors, Part 1 of 5" »

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

The definitive criteria in guidance of the trial court's determination of the qualifications of an expert witness are recognized in Sinz v. Owens, supra, 33 Cal.2d 749, at page 753, 205 P.2d at page 5, to rest primarily on "occupational experience," as stated: The proof of that standard (the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances) is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wigmore has classified as "occupational experience," the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood. 2 Wigmore on Evidence 3d Ed., § 556, p. 635.

He must have had basic educational and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the defendant charged with malpractice that is of controlling importance in determining competency of the expert to testify to the degree of care against which the treatment given is to be measured.'' (Emphasis added.) Pearce v. Linde (1952) 113 Cal.App.2d 627, 630-631. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There seems little reasonable basis for Defendant Smith's position that he intends to elicit expert opinion testimony from Dr. Lee clearly concerning plastic surgery or nursing.

3) The Law of the Case is that Experts May Not Testify to any Opinions they did not Testify to at their Depositions

Continue reading "Sacramento Hospital's Nursing Staff Part Of Malpractice Suit, Part 9 of 9" »

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

The standard of care in a medical malpractice case requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412, 175 Cal.Rptr. 365.)

It is also established that a nurse's conduct must not be measured by the standard of care required of a physician or surgeon, but by that of other nurses in the same or similar locality and under similar circumstances. (See Fein v. Permanente Medical Group (1985) 38 CalJd 137, 150-151, 211 Cal.Rptr. 368, 695 P.2d 665; Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 341, 160 Cal.Rptr. 246.) Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A medical expert is not qualified as a witness unless it is shown that he is familiar with the standards required of physicians under similar circumstances. Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 8 A.L.R.2d 757; Moore v. Belt, 34 Cal.2d 525, 532, 212 P.2d 509.

Continue reading "Sacramento Hospital's Doctors Commit Medical Malpractice, Part 8 of 9" »

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

In the present case, the standard of care for the specialty fields of plastic surgeons and nursing, as well as whether Dr. Goldberg and the nursing staff complied with same, are matters exclusively for the province of expert testimony (unless the doctrine of res ipsa loquitur applies).

A physician's standard of care is the key issue in a malpractice action and can only be proved by expert testimony unless the circumstances are such that the required conduct is within the layperson's common knowledge. (Landeros v. Flood (1976) 17 Cal.3d 399, 410, 131 Cal.Rptr. 69, 551 P.2d 389; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 CaUth 992, 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The common knowledge exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 CaUth at p. 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142, fn. omitted.) Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800-801.

Continue reading "Sacramento Girl Disfigured By Plastic Surgeon's Malpractice, Part 7 of 9" »

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

California Evidence Code section 720 further defines the necessary foundational requirement before a witness will be allowed to testify as an expert in a particular area:

(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

(b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony. (Calif. Evid. Code section 720.)

As discussed in greater detail below, there can be no doubt that Dr. Lee is not a qualified expert in plastic surgery or nursing. He has no special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Clearly, if Plaintiffs were proposing that Dr. Lee should be permitted to testify regarding the standard of care for plastic surgeons and nurses, and whether this was complied with in the present case, both Defendant Smith and the Court would not allow it. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.

Continue reading "Plastic Surgeon's Negligence Results In Sacramento Malpractice Suit, Part 6 of 9" »

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Allowing Dr. Lee to testify regarding the standard of care for the plastic surgeon or the hospital would constitute clear reversible error as he is not a qualified surgical or hospital standard of care expert.

Here, it is readily apparent that regardless of what opinions Dr. Lee may have expressed in his declaration (in a matter which was taken off calendar and never truly even addressed), it would be clearly improper to knowingly elicit expert opinion testimony from Dr. Lee in specialty medical fields in which he clearly is not a qualified expert.

The California Evidence Code and cases clearly provide for a mechanism to exclude such an improper opinion, and further make it clear that Dr. Lee should not be permitted to opine at trial in areas where he is not a qualified expert. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

Continue reading "Medical Experts Battle Over Malpractice Action In Sacramento, Part 5 of 9" »

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

DISCUSSION

1) Allowing Dr. Lee to Testify regarding the Standards of Care for the plastic surgeon or the hospital, would violate the holdings of Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919; Jones v. Moore (2000) 80 Cal.App.4th 557; and Bonds v. Ray (1999) 20 Cal.4th 140.

In Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919, the Fifth District held that where the plaintiff sought to elicit causation opinion testimony of an expert at trial, where that expert was not designated to give expert opinion testimony regarding causation, and where that expert had said he had no opinion regarding causation at three prior depositions, exclusion of this new area of testimony is required. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Kennemur was followed by the legal malpractice case of Jones v. Moore (2000) 80 Cal.App.4th 557, and the medical malpractice case of Bonds v. Roy (1999) 20 Cal.4th 140. In Jones, the Plaintiff's expert testified at deposition he had an opinion about whether the defendant complied with the standard of care in negotiating a divorce decree, but not in other areas. At trial, the trial court, as in the present case, excluded any opinions of the expert outside the opinions testified to at his deposition. The Second District held that under California law, the expert was limited to those areas he had testified to at his deposition. Id at p. 564-565.

.

Continue reading "Malpractice At Sacramento Hospital Causes Young Girl's Injury, Part 4 of 9" »

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Despite the clear lack of expertise of Dr. Lee regarding the standard of care for plastic surgery and nursing, the clear designation of Dr. Lee, Dr. Lee's deposition testimony that he had no such opinions, and the fact that they are acting in contradiction to their own motion and the Order of the Court, Defendant Smith now wishes to call Dr. Lee at trial and elicit opinions regarding the standard of care for the surgeon and hospital and whether same were violated.

Counsel for Defendant Smith cites to a declaration filed early in the action, in which Dr. Lee acknowledges he has no expertise regarding the standard of care for surgeons and hospital staff but nonetheless volunteers some opinions regarding a few surgeon issues and nursing matters. This declaration was submitted only to the Court in a law and motion matter, and not to a jury, and since Defendant Smith withdrew their motion for summary judgment, the matter was never ruled upon. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Whether Dr. Lee expressed any opinions in his declaration regarding the plastic surgeon's and nurses' standard of care, is a moot point. Clearly, he is not qualified to opine in these areas and it would be a blatant violation of California Evidence Code sections 720 and 801 to allow or to force Dr. Lee to testify regarding topics about which he is not a qualified expert.

Continue reading "Doctors At Sacramento Hospital Sued For Malpractice, Part 3 of 9" »

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

On March 27, 2008, Dr. Lee was designated by Plaintiff Ana Black to testify regarding anesthesiology issues, including the standard of care and causation issues pertaining to anesthesiology. Nowhere was there any designation/declaration that Dr. Lee would testify regarding the standard of care for surgeons or nurses, or whether the plastic surgeon or nurses in the present case complied with the applicable standard of care. The obvious reason was that Dr. Lee is an anesthesiologist, not a plastic surgeon or a nurse, and he is not qualified to render an opinion in these other fields of medicine.

Likewise, Defendant Smith's expert, Dr. Greene has similarly stated that he is neither an expert regarding the standard of care for surgeons or nursing, and that he does not intend to give any opinions in these areas. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On April 16, 2008, Dr. Lee was deposed, and not only once, but twice, testified that he would not be giving testimony regarding the standard of care of the surgeon or the hospital.

Q. Do you intend to give testimony as to the standard of care as it applies to Dr. Goldberg, the plastic surgeon?
A. No.

Q. Do you intend to give standard of care testimony with respect to the hospital?
A. No.

Continue reading "Sacramento Surgeons Sued For Malpractice, Part 2 of 9" »

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Plaintiff Ana Black's Memorandum of Points and Authorities in Opposition to Defendant Smith's Intent to Elicit Improper Opinion Testimony from Richard Lee, M.D.

Plaintiff Ana Black, a minor, by and through her Guardian Ad Litem, Madeline Black, respectfully submits the following memorandum of points and authorities in opposition to Defendant Smith's expressed intent to elicit expert opinions from Plaintiff's expert, anesthesiologist Richard Lee, M.D., regarding the applicable standard of care for plastic surgeon Donald Goldberg, M.D., and the nursing staff of Memorial Hospital (hereinafter "MH"), and to opine regarding whether same complied with their applicable standard of care. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

INTRODUCTION

Plaintiff's expert, Richard Lee, M.D., is a highly qualified anesthesiologist. He is Board Certified in anesthesiology. He has a long history in this field, and the entirety of his practice of medicine has been limited to anesthesiology and pain medicine.

Dr. Lee is not a plastic surgeon or a nurse; he has never been board certified in either of these two fields. He has no education, residency or internship in these fields; he has never received any training in these fields, and has never worked in either field.

Continue reading "Sacramento Girl's Family Files Medical Malpractice Action, Part 1 of 9" »

(Please 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.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Defendant's Purported Negligence Was Not The Proximate Cause of Plaintiffs' Alleged Injuries

Plaintiff must prove a proximate causal connection between the negligent conduct and the resulting injury. Bromme v. Pravitt (1992) 5 Cal.App.4th 1487, 1499; Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 611-612. Based on competent expert testimony, causation must be proven within a reasonable medical probability. As discussed by the Court in Bromme, there is a distinction between a reasonable medical probability and medical possibility. Bromme at 1499. There may be many possible circumstances, which can produce an injury or death. However, Plaintiffs must establish that Defendants' negligence was the substantial factor in the injury or death. Id. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In medical malpractice cases, the evidence must be sufficient to allow the jury to infer that, in the absence of defendant's negligence, there was reasonable medical probability that the plaintiffs would have obtained a better result. Morganroth v. Pacific Medical Center (1976) 54 Cal.App.3d 521, 533. Where the facts are undisputed and only one conclusion can be drawn, it is a question of law. See Hooks v. Southern California Permanente Medical Group (1980) 107 Cal.App.3d 435, 448 (court held that, while proximate cause is ordinarily a question of fact, when the facts are undisputed and only one conclusion can be drawn, it is a question of law).

Plaintiff’s injuries as set forth in the Complaint were not a result of any alleged negligence by Dr. Hal Smith. As discussed above, Dr. Hal Smith complied with the standard of care regarding Mr. Brown. As such, nothing Dr. Hal Smith did or failed to do caused the alleged injuries of Plaintiff.

Continue reading "Medical Negligence By Doctors And Hospital Result In Man's Wrongful Death, Part 5 of 5" »

(Please 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.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Defendants Did Not Breach The Standard of Care

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844; Landeros v. Flood (1976) 17 Cal.3d 399, 410; see BAJI 6.00.1. In the absence of any evidence that Defendant breached the standard of care, Defendant is entitled to judgment as a matter of law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Smith's care and treatment of Mr. Brown complied with the standard of care. It was not unreasonable for Dr. Smith to allow the patient to leave the emergency room. The patient was oriented to person, place, and time. His vital signs were normal and he showed no signs of medical distress. Therefore, the patient should not be detained when he refused an examination and wanted to leave the hospital. Moreover, Mr. Brown was not in custody pursuant to § 5150 of the Welfare and Institutions Code. Either the police or a psychiatrist can issue such a hold. In following, only a police officer or a psychiatrist can release a patient who is under such a hold.

In the event a patient is held pursuant to § 5150, a form is filled out by the police officer or psychiatrist, which then becomes part of the patient's chart. The form indicates that the patient is a danger to themselves and others.

Continue reading "Wrongful Death And Malpractice Action Filed On Behalf Of Sacramento Psychiatric Patient, Part 4 of 5" »

(Please 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.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

ARGUMENT

SUMMARY JUDGMENT LEGAL STANDARD

Summary judgment shall be granted if the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. Cal. Code of Civ. Proc. §437c; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579. A Defendant is entitled to summary judgment if they show one or more elements of the Plaintiff's case cannot be established or that they have a complete defense to the cause of action. Cal. Code Civ. Proc. § 437c(o)(2); Alszeh v. Home Box Office (1998) 67 Cal.App.4th 1456, 1460. Once the Defendant meet their initial burden, the Plaintiff must demonstrate, by submitting admissible evidence of specific facts that a triable issue of material fact exists. Id. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFF'S CLAIM FOR MEDICAL NEGLIGENCE LACKS MERIT

Elements Required for Actionable Negligence

In any medical malpractice action, the Plaintiff must establish: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. The Defendant does not need to disprove every element of Plaintiff's cause of action. Rather, the Defendant only need to present evidence that one or more of the elements of the cause of action for negligence cannot be established. Union Bank v. Los Angeles County Superior Court (1995) 31 Cal.App.4th 573, 583.

Continue reading "Sacramento Physicians Commit Malpractice By Discharging Patient Who Thereafter Died, Part 3 of 5" »

(Please 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.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

STATEMENT OF FACTS

The Emergency Medical Service Report of April 18, 2006, noted that Plaintiff David Brown
("patient") was ticketed by police at the airport while on his way to Los Angeles. The paramedics arrived while Mr. Brown was in the custody of airport police and he was belligerent, uncooperative, and possibly intoxicated. It appears that Mr. Brown did not have a medical complaint. However, the police just wanted to check [the] patient before arrest. Therefore, Mr. Brown was taken to the emergency room at RMC. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On April 18, 2006, while the patient was in the emergency room, he was noted to be combative, uncooperative, and abusive. He was first seen by the emergency room physician, Dr. Owen Hill at approximately 1900 hours. Dr. Hal Smith noted ethanol intoxication as an impression, but the patient was allowed to leave the emergency department pursuant to his request because he refused a physical examination.

After being in the emergency room for approximately one hour, the patient left against medical advice, but refused to sign the form indicating that he was leaving against medical advice. Dr. Smith noted that the patient was awake, alert, fully oriented and ambulatory at the time of discharge. Mr. Brown was not booked by the police and was transferred to his residence.

Continue reading "Patient From Sacramento Dies Due To Doctors' Malpractice, Part 2 of 5" »

(Please 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.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Defendant Owen Hill, M.D.'s Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support

Pursuant to Section 437c of the California Code of Civil Procedure, this summary judgment motion is brought on the grounds that there is no genuine issue of material fact and that Defendant is entitled to judgment as a matter of law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the Separate Statement of Undisputed Facts, all documents on file herein, and upon such other argument or evidence as may be presented to the Court at or prior to the hearing on this motion.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

On April 14, 2008, Plaintiff David Brown filed a Complaint against Defendant Owen Hill, M.D., along with co-defendant Regional Medical Center ("RMC"). The complaint purports a cause of action for medical negligence against both defendants regarding his emergency room presentation at the hospital on April 18, 2006. Specifically, Plaintiff contends that "Defendants' actions were a violation of [S]ection 5150 of the Welfare and Institutions Code." Plaintiff further contends that Defendants failed to "give a complete diagnosis, to inform Plaintiff of his condition and to treat Plaintiff while defendants had Plaintiff in their care and custody."

Continue reading "Sacramento Family Sues Hospital For Medical Malpractice, Part 1 of 5" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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.)

Should [defendant/physicians] be ... designated, a full inquiry into their present opinions would be entirely appropriate. But ... the inquiry is not appropriate until and unless there is ... a[n] [expert] designation.

As we have seen, C.C.P. section 2034 is expressly applicable to the expert opinion of parties to a lawsuit. We see no reason to disrupt the carefully crafted legislative scheme for the regulation of discovery of the identity, qualifications and opinions of expert witnesses. The trial court order that the physician defendants testify at deposition about their present opinion of the medical propriety of their acts, even though they have not been designated as expert witnesses, would have that effect. It is for that reason that we direct that it be set aside. [Id. at pages 1455-1457].

Likewise, Province v. Center of Women's Health (1994) 20 Cal.App 4th 1673, involved a matter where a severely brain-damaged plaintiff (by her mother/guardian ad litem) alleged defendants committed medical malpractice during her birth/delivery. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

At trial, the Province defendant doctors elicited expert testimony from a pathologist who had examined the umbilical cord of plaintiff shortly after birth.

Continue reading "Mother Of Deceased Sacramento Woman Files Malpractice Suit Against Hospital, 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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 Courts have agreed with this proposition. The factual circumstances in County of L.A. v. Superior Ct. [Martinez](1990) 224 Cal.App. 3d 1446 are similar to the facts herein. In County, plaintiff (mother of child) alleged that defendant physicians had committed malpractice in attending to plaintiff's delivery of her child and as a result the child suffered severe brain damage.

During discovery, County defendant doctors refused to answer expert questions during depositions arguing that expert testimony was premature since the time in which to serve expert designations under §2034 had not yet run. Plaintiffs Motion to Compel testimony was granted; and defendant doctors appealed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Appellate Court reversed the Trial Court's Motion to compel and held that defendant doctors not be required to provide expert opinion at subject depositions. In making its decision, the Court stated in pertinent part:

Continue reading "Physician Malpractice Causes 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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 Kim Smith’s Motion in Limine: To Preclude Expert Testimony of Defendant Medical Doctor as an Expert

Plaintiff hereby moves this Court for the following Motion in Limine and Order to preclude Defendants, their counsel, or witnesses from directly or indirectly attempting to introduce into evidence, opening statement or closing argument, the following matters:

TO PRECLUDE EXPERT TESTIMONY OF DEFENDANT MEDICAL DOCTOR AS AN EXPERT

This is a medical malpractice case where physician defendant breached the standard of care. As a result of defendant's negligence there has been severe injury.

Defendant served a designation of expert witnesses, per Code of Civil Procedure §2034. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

DEFENDANT DID NOT DESIGNATE HIMSELF AS AN EXPERT NOR HAS A DEFENDANT BEEN DEPOSED AS AN EXPERT WITNESS.

C.C.P. §2034(1) states that:

Continue reading "Sacramento Hospital Malpractice Lawsuit Involves Battle Of Experts, 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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.)

LIABILITY

Plaintiff contends that Dr. Hall departed from the standard of care with respect to the care of Kim Smith. Dr.Hall was the captain of the ship regarding the surgery. Fields v. Yusuf (2006) 144 Cal. App. 4th 1381, 51 Cal. Rptr. 3d 277 holds the captain of the ship doctrine imposes liability on a surgeon under the doctrine of respondeat superior for the acts of those under the surgeons special supervision and control during the operation.

Dr. Lee breached the standard of care as he was performing the actual part of procedure that led to Ms. Smith's demise. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Additionally, plaintiff was under sole care of defendant(s) at the time of the incident and Drs. Hall and Lee have liability on res ipsa theory.

Dr. White negligently failed to medicate and "worked up" decedent's underlying infection, leading to full device system infection, which was the underlying cause of the need for surgery. True copies of the curriculum vitae of John Black, M..D. and Ray Brown, M.D., and a copy of the declaration of Dr. Black regarding Dr. Lee are available.

Continue reading "Malpractice Action Filed On Behalf Of Sacramento Woman Who Bled To Death In Hospital, 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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 decision was made to open up decedent's chest. There was absolutely no blood in the pericardium. The right chest was filled with blood. Large bore catheters were placed including one on the atrium. Rapid blood and fluid infusion was implemented. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On exploration, Dr. Hall found shearing of the right subclavian vein, innominate vein and complete shredding of the superior vena cava. The AICD lead (i.e. the V-lead) was found to have a large swath of superior vena cava and parietal pleura. The azygos vein had been sheared and retracted deep into the chest and was bleeding swiftly. Needless to say, Ms. Smith died unnecessarliy.

In the circumstances of this case, the applicable standard of care required the surgeons (i.e. Hall and Gamic) to stop the procedure when there were drops in blood pressure while "tugging on the lead." It is common for defibrillator lead, which have coils attached, to become overgrown with tissue in the vessels. This is why one must proceed with caution when trying to cut or lase the leads free of the vessels. Subject defendant physicians should have halted the procedure to assess the problem and explore alternatives, e.g. use of fluoroscopy to explore the area to determine the cause and extent to the problem, use of trans-esophogeal echo to evaluate, etc. The fact the blood pressure was dropping upon "tugging" of the lead and rebounding when traction on the lead was released is evidence the lead was firmly attached to the vessel, and the blood pressure drop was either a reflex from pulling on the myocardium or from blood loss. Either one of these situations would require halting the procedure to evaluate the situation and assess proper action.

Continue reading "Sacramento Doctors' Mistakes Cause Patient To Bleed To Death In 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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 TRIAL BRIEF

INTRODUCTION

This is a medical malpractice action.

Decedent, Kim Smith (DOB: XX/XX/63; DOD: XX/XX/08), developed pregnancy-related cardiomyopathy in 2003 and was fitted with a AICD (Automatic Implantable Cardioverter Defibrillator). She had five children - 3 minors aged 4, 10 and 13.

On November 8, 2008, decedent had surgery at Memorial Hospital for replacement of the defibrillator (by surgeon, Phillip White). She had infection following this surgery and was readmitted December 20-22, 2008. Discharge diagnosis was left chest cellulitis at site of AICD with a culture positive for pseudomonas aeruginosa. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Decedent was scheduled for pacemaker and lead extraction secondary to the infection at Memorial Hospital by David Hall (surgeon) on January 19, 2009. This is a percutaneous laser lead extraction. Stephen Lee, an interventional radiologist, was the assistant surgeon. Dr. Lee operated the laser lead extractor during the procedure.

Continue reading "Sacramento Woman Dies In Hospital Due To Surgeon's Errors, Part 1 of 3" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

The issues in each action are intertwined and incapable of being severed. A single overlapping issue is sufficient to require imposition of a stay of court proceedings pending arbitration. Id. at 1153. In Heritage, an independent practice association ("IPA") sued a healthcare provider network ("Heritage"), two medical groups, and four individual physicians who had terminated their relationship with the IPA and entered into agreements with Heritage. Id. at 1150-1151. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The IPA alleged causes of action for (i) breach of contract against the medical groups and the physicians, (ii) inducement of breach of contract against Heritage and one of the medical groups, and (iii) improper disclosure of confidential information and trade secrets against the medical groups. Id. While the physicians successfully moved to compel arbitration of the IPA's breach of contract claims, the trial court denied Heritage's motion to stay the proceedings because there was not enough similar issues to stay the civil litigation while the arbitration's pending. Id. at 1151-1152. The appellate court reversed because it found that at least one issue in the IPA's breach of contract claim against the physicians, which was subject to arbitration, overlapped with issues in its remaining claims against Heritage, such that Heritage was entitled to a stay pending the outcome of arbitration. Id. at 1152-1153.

Continue reading "Physicians And Nurses At Sacramento Hospital Subjected Patient To Repeated Elder Abuse, Part 4 of 4" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

ARGUMENT

C.C.P. §1281.4 provides, in pertinent part, as follows:

If a court of competent jurisdiction, whether in this state or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this state, the court in which this action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specified.
[...]

If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only. C.C.P. § 1281.4. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

C.C.P. § 1281.4 is clear and unambiguous. Any party to a judicial proceeding is entitled to a stay of those proceedings whenever (1) the arbitration of a controversy has been ordered, and (2) that controversy is also an issue involved in the pending judicial action. Heritage Provider Network, Inc. v. Superior Court (2008) 158 Cal.App.4th 1146, 1152. A controversy can be a single question of law or fact, and a stay shall be issued upon proper motion if the court has ordered arbitration of a controversy that is also an issue involved in an action or proceeding pending before it. Id. It is irrelevant under the statute whether the movant is a party to the arbitration agreement. Id.

Continue reading "Reckless Negligence At Sacramento Post Acute Care Hospital Results In Wrongful Death, Part 3 of 4" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

STATEMENT OF FACTS

Plaintiff was admitted to JFK on or about September 25, 2006, for treatment of a cervical spine fracture. He was discharged from JFK on or about October 4, 2006, and transferred to JFK Hospital, Roseville. On or about October 8, 2006, he was transferred to JFK Folsom. In January 2007, he was transferred to JFK Post Acute Care Center, and was then discharged home on or about February 1, 2007.

Plaintiff claims that during his care at these various facilities, defendants failed, inter alia, to monitor his condition and to prevent the development and progression of his pressure ulcers. In connection with these events, he brings causes of action for elder abuse and negligence against JFK and JFK. For relief, he seeks general and special damages, punitive damages, and attorneys' fees from JFK and JFK. The initial Complaint for Damages was filed on September 24, 2007. The First Amended Complaint for Damages was filed on February 20, 2008. The Second Amended Complaint was filed on May 29, 2008. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

With respect to JFK, Plaintiff was enrolled as a member of JFK Health Plan, Inc. (the "Health Plan"). The Health Plan contains an arbitration provision which requires that all of his claims against JFK be submitted to binding arbitration.

Continue reading "Cervical Fracture Patient At Sacramento Hospital Subject To Elder Abuse, Part 2 of 4" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

JFK HOSPITAL’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO STAY PROCEEDINGS UNTIL ARBITRATION IS COMPLETED

INTRODUCTION

In his First Amended Complaint for Damages, Plaintiff Aaron Black sued defendant JFK Hospital ("JFK") in connection with his pressure ulcers which were allegedly caused by the defendant’s alleged failure to provide him with adequate care and assistance beginning in the fall of 2007. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In accordance with an agreement Plaintiff made with JFK Hospital, and upon JFK's motion, the Court ordered that Plaintiff and JFK arbitrate the matters raised in the First Amended Complaint for Damages against JFK. Since the Court's order, Plaintiff has filed his Second Amended Complaint for Damages following the sustainment of JFK's demurrer. Given that the matter to be arbitrated involves the same causes of action and alleged injuries (i.e., pressure ulcers) that plaintiff alleges against JFK in the Second Amended Complaint for Damages ... ,

Continue reading "Sacramento Hospital Tries To Delay Arbitration In Medical Malpractice Case, Part 1 of 4" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

When Mr. Black entered JFK on September 25, 2007, his skin assessment showed no wound or pressure ulcer. Mr. Black required turning every two hours around the clock. The nursing records disclose that that necessary intervention did not occur on multiple occasions, with periods of 3 hours, 4 hours, and 7 hours where there was no turning.

By the time Mr. Black was discharged from JFK on October 4, 2007, he had developed pressure ulcers which progressed and worsened after his discharge.

As is set forth below, the development of pressure ulcers in this paraplegic patient was not the result of an isolated episode of inadvertence by a JFK employee. Rather, this entirely preventable injury was caused by repeated episodes of neglect over a period of days by multiple employees of JFK. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In order to be entitled to enhanced remedies, plaintiff must prove that the defendant acted with recklessness, i.e. engaging in conduct while appreciating the probability that the conduct would cause harm. The First Amended Complaint sets forth facts alleging such conduct on the part of managing agents of its acute care hospital. They describe a systemic breakdown in the carrying out of well-established pressure ulcer prevention protocols by multiple caregivers over multiple days. That breakdown is alleged to have been caused by improper training, improper supervision, improper chart review, improper competency assessment and/or improper staffing levels, or a combination of these factors.

Continue reading "Extremely Vulnerable Patient Suffers Pressure Wounds At Sacramento Hospital Due To Malpractice, Part 6 of 6" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

Physicians and other health care providers, as well as hospitals, can be held liable under the elder abuse statutes. That was the holding in Mack v. Soung (2000) 80 Cal.App. 4th 966. Such persons have care and custody of an elder within the meaning of the elder abuse statutes when they undertake to care for an elder. The Court summed up its holding as follows:
Delaney establishes that health care providers are not exempt from liability for reckless neglect simply because the cause of action arises from the rendition of health care services. Mack v. Soung, supra, at 974.

Each of the required elements of proof to support a claim for reckless neglect of an elder is set out in the First Amended Complaint and is supported by specifically alleged facts. Those allegations together may be summarized as follows. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Aaron Talbot, an elder and dependent adult within the meaning of the Elder Abuse Statutes (W&I Code §15600 et seq.), was admitted to JFK on September 25, 2007. He was diagnosed with a cervical spine fracture. Mr. Black had pre-existing paraplegia. For this reason and because he had a neck fracture, he was at high risk for the development of pressure ulcers.

Continue reading "Nursing Staff At Sacramento Hospital Commits Egregious Elder Abuse, Part 5 of 6" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

ARGUMENT

Law Applicable to Demurrers

It is axiomatic that a demurrer does not test the sufficiency of evidence or other extrinsic matters. Four Star Electric v. F&H Construction (1992) 7 Cal.App. 4th 1375, 1379, The only issue for the Court to resolve on demurrer is whether the complaint, as it stands, unconnected with extraneous matter, states a cause of action. Gervase v. Superior Court (1995) 31 Cal.App. 4th 1218, 1224. The judge's function on demurrer is to treat properly pleaded facts as true without consideration of whether they are provable or not. Ibid.

While these rules of determining a demurrer are well known, it is often valuable to remind the moving party of them. In the case at bar, if each properly pleaded fact in the First Amended Complaint were stipulated to be true, the defendant could not argue that the plaintiff would not be entitled to a verdict under the Elder Abuse Statutes. This is another way of expressing the standard for judging a demurrer. When properly viewed in this way, it is plain that defendant's demurrer is without merit. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff Has Pleaded Facts Sufficient to State a Cause of Action for Reckless Neglect of an Elder

Continue reading "Sacramento Patient's Hospital Care A Gross Departure From Acceptable Standard, Part 4 of 6" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

The pattern of neglect in not following said basic treatments and assessments was not an isolated episode of inadvertence by a single practitioner, but was evidence of institutional indifference in that multiple employees on multiple occasions neglected Aaron. The repeated failure of the staff to follow well-known protocols for the prevention of pressure ulcers and other conditions to which Aaron was susceptible is a gross departure from any standard of care and is evidence of a reckless disregard of health and safety of patients by the managing agents, officers, owners and operators of defendants. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further allegations of reckless institutional neglect are set out in paragraph 26, wherein it is alleged that managing agents of JFK, including the Administrator and Director of Nursing, consistently failed to properly train the nursing staff, repeatedly failed to engage in chart review to assure that proper care planning and treatment was occurring, repeatedly failed to assess the competency of the nursing staff and knowing of the neglect of Mr. Black, took no remedial action.

Paragraphs 19 and 20 set out duties which JFK was required to carry out but failed to do so with references to State and Federal regulations. The breaches of duty all relate to the failure to properly initiate a care plan and carry out a care plan to protect Aaron Talbot from compromise to his health and safety, i.e. the development of pressure ulcers.

Continue reading "Sacramento Hospital Patient Suffers Decubitis Ulcers Due To Reckless Neglect, Part 3 of 6" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

FACTUAL ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

The First Cause of Action details the facts which would support a verdict for reckless neglect of an elder on the part of JFK.

It is alleged that Aaron was a patient under the care of JFK from September 25, 2007 through October 4, 2007, with a diagnosis of neck fracture. It is further alleged that Mr. Black suffered from pre-existing paraplegia and, while at JFK, he was plainly dependent upon JFK for virtually all activities of daily living. Paragraph 14 goes on to allege that because of Mr. Black's condition, JFK knew that he was at high risk for the development of pressure ulcers and that, if they were allowed to develop, they would be difficult to treat because of Mr. Black's bed-bound status and that there was a significant risk of serious consequences from their progression. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The First Amended Complaint with specificity alleges that the nurses at JFK knew or were obligated to know thatMr. Black was required to be repositioned at a minimal interval of every two hours in order for a proper ulcer-prevention care plan to be carried out.

Continue reading "Elder Abuse Of Paraplegic Man At Sacramento Hospital Leads To Malpractice Suit, Part 2 of 6" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT JFK HOSPITAL'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

INTRODUCTION

Defendant JFK demurs to plaintiff's First Amended Complaint on the basis that it fails to plead sufficient facts to support a claim for reckless neglect of an elder in violation of Welfare & Institutions Code § J 5600 et seq.

Defendant's demurrer is without merit and is of a type filed as a matter of course in virtually all elder abuse cases. Its principal purpose is to add a burden to plaintiffs bringing such cases which was not intended by the legislature. In point of fact, the legislature in §15600 of the Welfare & Institutions Code expressed as its purpose in enacting the Elder Abuse Statutes to encourage lawyers and others to take up the cause of the neglected elderly because representation had been difficult to obtain previously due to the vagaries of the law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff's pleading in the case at bar is far more particular in its factual pleading than would be required under standard notice pleading rules. It alleges facts and includes specific charging allegations which if supported by evidence at trial would justify a verdict in plaintiff's favor on a cause of action for reckless neglect of an elder.

Continue reading "Paralyzed Patient In Sacramento Hospital Sues For Malpractice, Part 1 of 6" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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.)

Interrogatories

Code of Civil Procedure §2030.290 provides in relevant part as follows:

If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply:

(b) The party propounding the interrogatories may move for an order compelling response to the interrogatories. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In this case, defendant LMN Hospital propounded Form and Special Interrogatories on plaintiff on October 23, 2007. Plaintiff's responses were due on November 30, 2007. Responses have not been served and all objections have been waived. (C.C.P. §2030.290.) Despite an attempt to meet and confer with plaintiff regarding these delinquent discovery responses, moving defendant has never received any responses from plaintiff. Therefore, defendant requests this Court to order that all objections to the Form and Special Interrogatories are waived, and issue an order compelling plaintiff to provide responses to the Form and Special Interrogatories.

Request for Production of Documents

Code of Civil Procedure §2031.300 provides in relevant part as follows:

Continue reading "Wrongful Death At Sacramento Hospital Leads To Medical Malpractice Lawsuit, 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

DEFENDANT LMN HOSPITAL’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DISCOVERY RESPONSES

INTRODUCTION AND STATEMENT OF RELEVANT FACTS

Plaintiff, William Brown, initiated a medical malpractice action against LMN Hospital on May 11, 2007.

On October 23, 2007, defendant LMN Hospital served a Request for Statement of Damages, Form Interrogatories, Special Interrogatories, and Request for Production of Documents by way of regular United States mail on plaintiff. Plaintiff's statement of damages was due on or before November 12, 2007. Plaintiff's responses to form interrogatories, special interrogatories and request for production of documents were due on or before November 30, 2007. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On December 3, 2007, our office sent a meet and confer letter to plaintiff's counsel regarding the discovery. We asked plaintiff to provide objection free responses on or before December 23, 2007, to avoid a motion to compel. This motion is now necessitated by plaintiff's continued failure to provide any discovery responses.

Continue reading "Parties Fight Over Document Production In Sacramento Hospital Malpractice Case, 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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.)

XYZ, in its notice, without reference to particularities or page or lines, claims that the 2nd and 3rd causes of action are uncertain as to the theory of liability and lack of reference to federal regulations (though not required to state a cause of action for medical malpractice or wrongful death). XYZ also claims that the first cause of action for elder abuse is uncertain, again with any citations to page or line or specifics, as to the allegations regarding reckless neglect on the part of employees, managing agents, officers or directors of the hospital. The special demurrer as to each cause of action for uncertainty must be denied. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The second cause of action is for medical malpractice, as it is entitled. By incorporation of the allegations from the general allegations and the first cause of action regarding XYZ's duties and breach of those duties and standards of care, plaintiff has stated a cause of action of medical malpractice. Failure to identify a particular federal regulation is not required to state this cause of action.

The complaint is for the wrongful death of Mr. Lee by his surviving heir, based on the theories of elder abuse and medical malpractice and includes appropriate damage requests for Mr. Lee's special damages under the Elder Abuse Act. Paragraph 55 of complaint is allowed by W&I Code §15657, and Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1254, 1265. The Elder Abuse Act allows for a claim for Mr. Lee's special damages including his pain and suffering before his death.

Continue reading "Hospital's Nursing Staff's Reckless Elder Abuse Results In Malpractice Lawsuit, Part 9 of 9" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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.)

XYZ'S CLAIMS OF UNCERTAINTY FAIL

A demurrer based on uncertainty will be sustained only where the defendant cannot reasonably determine what issues must be admitted or denied or what claims are directed against it. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 927, p. 364; 1 Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1990) § 7:85, p. 7-23. See, Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty should be overruled where the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable through discovery, or not dispositive of one or more causes of action. Khory, supra, at 616. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The complaint contains more than sufficient facts to apprise XYZ of the issues it is being asked to meet, including labeling each of the causes of action so that XYZ can tell to what it is responding and therefore, the uncertainty claims fail. See, Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d, 135, 139, fn. 2. [ [U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

Continue reading "Malpractice Suit Filed After Sacramento Hospital Fails To Feed Elderly Patient, Part 8 of 9" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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.)

PUNITIVE DAMAGES IN THE ELDER ABUSE CAUSE OF ACTION IS SUFFICIENTLY PLED

CCP §425.11 is inapplicable to an elder abuse cause of action.

XYZ's claim that Plaintiff must comply with Code of Civil Procedure §425.13 which requires that a plaintiff seek court permission to state a punitive damage claim in a medical malpractice cause of action, was held five years ago by the California Supreme Court as inapplicable in elder abuse causes of action. Covenant Care, Inc. v. Superior Court, (2004) 32 Cal.4th 771, 790. Plaintiff has not alleged punitive damages in his second or third causes of action.

PLAINTIFF HAS ALLEGED SUFFICIENT FACTS OF CONDUCT BY XYZ EMPLOYEES, MANAGING AGENTS AND RATIFICATION TO SUSTAIN THE CLAIM FOR PUNITIVE DAMAGES IN THE ELDER ABUSE CAUSE OF ACTION AND THE MOTION TO STRIKE MUST BE DENIED.

XYZ argues that plaintiff has not stated sufficient facts of punitive damages. The facts to support the reckless neglect of Mr. Lee and his rights while under XYZ's care are also sufficient to state this claim of punitive damages in the elder abuse cause of action. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Pursuant to Cal. Civ. Code §3294(b) Plaintiff is entitled to punitive damages in that Defendant authorized or ratified the wrongful conduct for which Plaintiff seeks to recover. [White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 577].

Continue reading "Punitive Damages Sought By Family Of Sacramento Man In Hospital Malpractice Suit, Part 7 of 9" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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.)

As the court in College Hosp. v. Superior Court, (1994) 8 Cal.4th 704, stated, the issue of ratification commonly arises where the employer or its managing agent is charged with failing to intercede in a known pattern of workplace abuse, or failing to investigate or discipline the errant employee once such misconduct became known. In Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, the Court concluded the health provider's failure to respond to known deteriorating pressure sores constituted a reckless failure to provide medical care for her physical health needs and that no changes were made to the patient care plan and/or that the care plan was not followed even with full knowledge that the pressure sore was deteriorating. The court further found that it would be reasonably inferred from this chain of events that [the health care provider] acted with reckless neglect in caring for Mrs. Intrieri. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The same is true in this case. Plaintiff has alleged facts of a pattern of reckless neglect, disregarding dietary plans and instructions, and failing to reposition Mr. Lee, for 39 days. These facts are sufficient to support the inference that supervisors and managers of the nurses and staff whom intentionally violated the standing dietary plan and instructions and failed to reposition Mr. Lee for weeks ratified this type of treatment of Mr. Lee.

Continue reading "Sacramento Hospital's Failure To Investigate Patient's Stated Needs Constitutes Malpractice, Part 6 of 9" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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 ALLEGES SUFFICIENT FACTS OF XYZ'S NURSING STAFF AND STAFF RECKLESS NEGLECT

XYZ's argument that plaintiff has not alleged facts regarding employees of XYZ fails to acknowledge the allegations throughout the complaint regarding XYZ's nursing staff and staff. The complaint sufficiently states facts regarding XYZ's nursing staffs recklessness in feeding Mr. Lee, in violation of standing orders, solid food, and again feeding him solid food after being confronted by more than one person. The failure to plead the specific names of the employees is not required; defendant has not cited any legal authority to support this argument. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFF ALLEGES SUFFICIENT FACTS TO SUPPORT THE INFERENCE OF RATIFICATION OF THE PATTERN OF RECKLESS NEGLECT BY XYZ'S MANAGING AGENTS, OFFICERS, AND DIRECTORS.

Plaintiff has sufficiently alleged facts of a pattern over 39 days that support inferences of ratification by XYZ's officers, directors and/or managing agents.

Mr. Lee was a patient at XYZ from September 14, 2006, through October 23, 2006. After having undergone surgery to remove a tumor in his esophagus, he was admitted into XYZ for low blood pressure, with strict dietary instructions of no solid foods.

Continue reading "Sacramento Man's 39-Day Hospital Stay Ends In Death Due To Malpractice, Part 5 of 9" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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 alleges that XYZ's nursing staff and staff, recklessly neglected Mr. Lee by continuously giving him solid food, in violation of standing instructions because Mr. Lee had recently undergone surgery to remove a tumor inside his esophagus. Plaintiffs family and others warned XYZ to follow the instructions, but XYZ continued to disregard the instructions. This was not an isolated incident, nor limited to one person, but ongoing and continuous reckless neglect and treatment of Mr. Lee from September 14, 2006 through October 23, 2006. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

These facts are sufficient to establish the inference that as an on going and continuance act by XYZ's staff, the managing staff of the hospital or others approved and ratified this conduct. Plaintiff has alleged these facts of ratification and authorization. XYZ's reckless disregard of these standing instructions caused Mr. Lee serious pain and suffering and physical injuries, including choking on food, vomiting, aspirating into his lungs and suffering an incident of prolonged respiratory failure with significant permanent injury.

XYZ argues that it is unclear whether the non-solid food instructions provided when Mr. Lee was transferred to XYZ, was a part of XYZ's doctor's orders is irrelevant. XYZ is arguing what it contends should be the evidence, which is inappropriate on a demurrer. (Aubry v. Tri City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967 [demurrer admits the truth of all material facts].

Continue reading "Reckless Disregard By Physicians At Sacramento Hospital Leads To Wrongful Death, Part 4 of 9" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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 HAS SUFFICIENTLY STATED A CAUSE OF ACTION FOR ELDER ABUSE

XYZ claims that the standard of pleading is different for an elder abuse claim. Though a statutory cause of action is to be plead with particularity, there is no heightened pleading standard. Plaintiff has alleged each element of a cause of action pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) Welfare & Institutions Code §15600, et seq., and the facts sufficiently, and with particularity, set forth XYZ's pattern of reckless neglect of Mr. Lee.

PLAINTIFF HAS SUFFICIENTLY ALLEGED RECKLESS NEGLECT

Defendant's argument that the facts regarding XYZ's conduct do not describe "egregious" conduct, misstates the elements of the Elder Abuse Act.

The Elder Abuse Act provides for heightened remedies under W&I Code §15657 and applies to health care providers who recklessly neglect elder and dependent adults. Delaney v. Baker (1999) 20 Cal.4th 23, 30-31. As the court in Benun v. Superior Court (2004) 123 Cal.App.4th 113, 119, stated, To establish elder abuse, a plaintiff must show defendant was guilty of recklessness, oppression, fraud, or malice in the commission of [neglectful ...] elder abuse]. (W&I Code §15657.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Elder Abuse Act defines the abuse of an elder to mean "physical abuse, neglect, ... " or "other treatment with resulting physical harm or pain or mental suffering," or "the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering." (W&I Code §15610.07(a) and (b)).

Continue reading "Elder Abuse And Egregious Sacramento Hospital Conduct Results In Malpractice, Part 3 of 9" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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.)

XYZ generally demurs to the first cause of action for elder abuse on the grounds that plaintiff has failed to state sufficient facts to state a cause of action because plaintiff has not plead facts of reckless conduct by any employees of XYZ. This is incorrect, as throughout the complaint, plaintiff alleges the conduct by XYZ's nursing staff and staff. XYZ argues that plaintiff has not identified any wrongful conduct by any managing agents, officers or directors of XYZ. Again, this is in error. The first cause of action for elder abuse sets forth sufficient facts to support the inference of ratification of this pattern of reckless neglect for 39 days by XYZ's staff.

Combined in this motion is XYZ's request to strike the allegations of punitive damages in the elder abuse cause of action on the same two grounds, in addition to asserting an erroneous argument plaintiff failed to comply with Code of Civil Procedure §425.13. The California Supreme Court held that §425.13 does not apply to elder abuse claims. XYZ specially demurrers to the first cause of action on the ground of uncertainty, without specifying the particular allegations that it contends is uncertain. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

XYZ specially demurs to the second cause of action for medical malpractice and third cause of action for wrongful death on uncertainty, again without specifying the particular allegations it contends is uncertain. XYZ then moves to strike the words reckless from the second and third causes of action, without citing any legal support. If plaintiff can prove recklessness, plaintiff will also have proven negligence.

Continue reading "Family Of Deceased Sacramento Hospital Patient Sues For Malpractice, Part 2 of 9" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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 OPPOSITION TO DEMURRER AND MOTION TO STRIKE FILED BY DEFENDANT, XYZ HOSPITAL

INTRODUCTION

XYZ Hospital ("XYZ"), through its nursing staff and staff, engaged in a pattern for over a month of reckless neglect of Donald Lee by knowingly disregarding standing instructions from Mr. Lee's prior health care providers, physicians and family that he only be fed pureed food because of a recent surgery to remove a tumor from his esophagus surgery. XYZ, through its staff and nursing staff, fed him solid foods in violation of these instructions, which caused Mr. Lee to choke on his food, vomit and aspirate into his lungs and suffer an incident of prolonged respiratory failure with significant permanent injury in his overall functioning. Mr. Lee was placed on a ventilator because he was no longer capable of breathing without mechanical assistance, underwent a tracheotomy and the insertion of a feeding tube. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Confined to his bed, Mr. Lee required re-positioning to avoid developing bedsores. XYZ, again through its nursing staff and staff, between September 14, 2006 and October 23, 2006, recklessly neglected Mr. Lee and failed to re-position him, causing him to develop a Stage II-III sacral decubitus ulcer. XYZ, however, contends these are not sufficient facts of reckless neglect and brought this combined demurrer and motion to strike to the complaint for elder abuse, wrongful death, and medical malpractice. (See Part 2 of 9.)

Continue reading "Sacramento Hospital Nursing Staff Violates Regulations In Malpractice Case, Part 1 of 9" »