(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/medical malpractice case and its proceedings.)
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT MEMORIAL HOSPITAL’S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
This is a medical malpractice action arising out of a birth injury suffered by the minor, Mark Brown. The minor suffered birth injuries resulting in cerebral palsy, and cognitive and developmental delay.
Memorial Hospital, where the minor was born, now moves for summary judgment claiming that the nurses acted within the medical standard of care and did not cause injury to the minor.
There is a triable issue of fact; Plaintiff has submitted evidence contradicting the Defendants’ expert declaration. Plaintiff presents the expert declaration of John Zee, M.D., board certified in obstetrics and gynecology, contradicting the moving party’s expert declaration. This counter declaration requires the denial of summary judgment (Sesma v. Cueto (1982) 129 Cal.App.3d 108, superceded on other grounds).
The moving party bears the burden of persuasion and the initial burden of proof: [F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Emphasis added.) (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Here the Plaintiff has now contradicted the Defendants’ expert declaration; the Defendant has failed to carry its burden of persuasion. (See Part 2 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.