Personal Injury Lawyer Blog
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 a medical malpractice case present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)
LEGAL STANDARD
SUMMARY JUDGMENT IS APPROPRIATE BECAUSE PLAINTIFF HAS FAILED TO ESTABLISH THAT A TRIABLE ISSUE OF ONE OR MORE FACTS EXISTS
In a summary judgment motion, the opposing party has the burden of showing the existence of a triable issue of material fact. (Churn v. Bank of America (1976) 15 Cal.3d 866, at 873; Marilla v. Right Stuff Food, Inc. (1998) 65 Cal.App.4th 833, at 841). The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code of Civil Procedure §437(c)(7)(c)). The defendant need only show the plaintiff cannot establish at least one element of the cause of action. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, at 853.) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more facts exists as to that cause of action. (Id.) Information and expert opinion that is utterly irrelevant to the moving party is not sufficient to create an issue of fact.
ARGUMENT
THE OPINIONS EXPRESSED BY DR. BLACK ARE IRRELEVANT TO DR. WHITE
Dr. Black states in his declaration that “a standard trauma evaluation was required, with emergency attending physician evaluation…” Black goes on to further state at 3:18 that “early emergency department attending physician evaluation … could have prevented the subsequent cervical spine deformity...” While this may or may not be the case, this opinion assumes that when plaintiff presented, the patient was actually seen by Dr. White. As is well documented, and even admitted in plaintiffs opposition brief, Dr. White neither saw, nor cared for, plaintiff at any point in time through no fault of his own.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.