Personal Injury Lawyer Blog
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 …. ”
” The opponent of a motion for summary judgment cannot rely on his pleadings, but must make an independent showing that he has sufficient proof of the matters alleged to raise an issuable question of fact in regard thereto. … In the absence of opposing affidavits, the grant of summary judgment was proper on the issue of defendant’s allegedly wrongful conduct … “
In the present action, the Declaration of Clive Brown, M.D. establishes that the care and treatment provided by defendant Peter Hill, M.D. to James Smith was appropriate and within the standard of care. Unless an expert declaration is filed in opposition addressing standard of care, this motion for summary judgment must be granted and Peter Hill, M.D. must be dismissed from this action.
CONCLUSION
For all of the above reasons, it is respectfully requested that this Motion for Summary Judgment be granted in favor of the defendant Peter Hill, M.D. against the plaintiffs Robyn Lee, Individually and as the representative of the estate of James Smith, deceased, Andrea Lane, and Samantha Black, and that defendant Peter Hill, M.D., be dismissed.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.