Articles Posted in Brain Injury

It is worth noting that situations similar to those described in this brain injury 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 malpractice case and its proceedings.)

The regulation interrogation.

In order for a statute or regulation to be relevant to this matter it must fit into the definition contained in CACI 418 et seq. A simple, quick reading of the entirety of the regulations presented by the defense herein makes it clear that they are not relevant.

The California regulations are all cited from the licensing requirements for skilled nursing facilities. They provide requirements that the facility must provide for a license. The regulations do not state anything as to the standard a doctor must follow. Licensing requirements are not standards of care nor is Defendant bound by the licensing requirements of the facility in seeing patients. These are two different issues. The regulations do not state that an assigned doctor is to see a patient in 72 hours, but that the facility is to make sure that some doctor sees the patient. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The restraint regulations of the state are just as faulty. They are in the same licensing section for SNF’s not the doctor’s duties to care for a patient. They relate to the regulations governing the party who saw the light and settled not what the doctor’s duty was to take care of his patient. Moreover, the regulations have been taken out of context since the whole of the regulation is not provided to the court or jury.

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It is worth noting that situations similar to those described in this brain injury 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 malpractice case and its proceedings.)

Moreover, given the settlement and the fact that the court has indicated that it will ignore the fact that ABC was a party (at the request of Defense counsel) the jury will not be told that there was a settlement or that ABC was a party. This dichotomy is clearly prejudicial to Plaintiff and, clearly, Defendant is attempting to place all of the blame (even through Gail Smith’s effective mea culpa that she failed to chart all of the conversations she alleges she had with Dr. Lee and with Russell Greene) on other parties. Defendant is trying to back door the evidence for the defense that plaintiff failed to properly designate an expert. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Additionally, it is clearly prejudicial to Plaintiffs for the court to preclude disclosure of the existence of ABC as a party who has settled when Defendant is pointing right at them. The jury has the right to know that they were a party, that they settled and that the court will do the math after verdict. Otherwise, clearly all of the evidence relating to the alleged negligence of the staff of ABC is prejudicial under Evid. Code §352.

At this point in the matter, given the evidence that has been adduced, to prevent further undue prejudice to plainitffs the court must, (a) inform the jury that ABC was a party to the matter and that they settled but that the amount of the settlement is irrelevant, …

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It is worth noting that situations similar to those described in this brain injury 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 malpractice case and its proceedings.)

Plaintiffs’ Trial Brief on Issues Arising During the Current Pendency of Trial

The issues are:

1. The court allowed Defendant to inquire of the standard of care as to the staff of ABC Skilled Nursing Facility (“ABC”) over the objections of counsel for Plaintiffs.

2. The court allowed Defendant to inquire about certain regulatory materials, i.e. the Code of Federal Regulations and the California Administrative Code of Regulations over the objections of counsel for Plaintiffs.

Neither of these lines of questioning were appropriate, material or relevant to this matter. Plaintiffs, with the filing of this brief, will renew their objections and request that the court strike the testimony and instruct the jury to ignore it. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The bases for the requests are as follows:

Standard of Care at ABC
Dr. Brown was designated solely as an expert on the issue of the negligence of Andrew Lee, M.D. Tamara White was Plaintiffs’ expert on the issue of the negligence of ABC. Ms. White was withdrawn and not deposed at the demand of Defendant Lee after the good faith settlement with ABC.

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It is worth noting that situations similar to those described in this brain injury 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 malpractice case and its proceedings.)

The seminal case of Delaney v. Baker 20 Cal.App.4th 23, is cited extensively by Defendant. Unfortunately, it does not support Defendant. The decision specifically holds that medical malpractice and Elder Abuse are separate causes of action. After holding that the statute is ambiguous, the court held that if the neglect is reckless’ or done with oppression, fraud or malice, then the action falls within the scope of section 15657 and as such cannot be considered simply based on … professional negligence within the meaning of section 15657.2. Delaney, at 28. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff has pled that the failure to restrain and the failure to treat decedent in this matter was at least reckless. The pleading standard has been met, and defendants would like the court to make a factual determination that the actions were not “reckless” at the pleading stage which is an improper request. Delaney is not a case that interprets the scope of pleadings. It is a decision that interprets the scope of the statute. Delaney cannot be cited as setting forth pleading requirements as Defendant attempts in the Demurrer.

The result is relatively simple. Plaintiff is entitled to and does state a cause of action for Elder Abuse, and whether the proof presented at trial is sufficient to take the damages outside of the scope of ordinary negligence (15610.57) and into the scope of enhanced damages (15657 and 15657.2) is a separate issue. However, Plaintiffs submit that sufficient facts have been pled to meet the pleading standards as to this damage issue.

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It is worth noting that situations similar to those described in this brain injury 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 malpractice case and its proceedings.)

THE MISINTERPRETATION OF THE COMPLAINT

Defendant argues that since there is insufficient pleading in Paragraphs 18-20 of the Complaint, the complaint must fail. This is the underpinning of the whole of the Demurrer and is wholly without merit. Defendant fails to cite Paragraph 17 of the Second Cause of Action which incorporates all of the facts plead in the first 16 Paragraphs. The argument is specious at best and justifies the court overruling the Demurrer without further consideration. The elements plead including the course of the care prior to death are provided in the earlier paragraphs.

STATUTORY ANALYSIS

Defendant bases the argument on Welfare and Institutions Code §§15657 and 15657.2 and ignore §15610 et seq. which define Elder Abuse itself. Plaintiff has met the pleading requirements of pleading Elder Abuse as defined by the code. Defendant is mixing an argument that the damages portion of the claim cannot be made on the facts plead and, further, attempts to insert a requirement for pleading specificity as required if there was a claim for Punitive damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

No such damages claim has been made at this time, as the interplay between C.C.P. §425.13 and the Elder Abuse statutes has not been litigated or established.

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It is worth noting that situations similar to those described in this brain injury 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 malpractice case and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
BACKGROUND

Plaintiffs’ decedent suffered a stroke in 2003. She was hospitalized through February 19, 2004 when she was transferred to Defendant ABC Skilled Nursing Facility in Sacramento with orders that Posey restraints be used in view of the loss of use of one side of her body and confusion which could result in injury. Defendant chose to ignore the orders and on plaintiff’s first night in the SNF decedent got out of bed apparently not remembering that she could not walk normally, fell and hit her head. A staff person for Defendant SNF heard her fall and eventually went to check on her. She was found on the floor with a bruise/abrasion on her forehead. She was anti-coagulated to prevent further strokes and presented a clear risk of developing a sub-dural hematoma, a common secondary response. The facility chose to do nothing until she was checked at about 7:00 in the morning and pronounced good. Finally at about noon when she started to present with severe problems showing loss of mental faculties Defendant decided that she should be sent to the hospital to be examined.

It was too late, the sub-dural hematoma had grown to the point where it was not operable by the time decedent arrived at the hospital. defendant’s inadequate, delayed response proved costly for plaintiff. Decedent was, at the time, a strong-willed person and managed to hold on at home in a severely debilitated state until her death on April 25, 2004. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this brain injury 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 malpractice case and its proceedings.)

Plaintiff Peter Greene’s Opposition to Demurrer of Defendant ABC Skilled Nursing Facility and Memorandum of Points and Authorities in Support

The Opposition will be based on the following:

1. Defendant has failed to properly deal with the content of the complaint in that the initial basis for the Demurrer is that Paragraphs 18-20 do not state sufficient facts. Defendant does not cite the court to Paragraph 17 which incorporates all of the facts stated in the First Cause of Action. Thus, no basis for the Demurrer has been stated.

2. Plaintiffs have pled sufficient facts, including a 10-hour delay in treating a patient with a head injury who was on anticoagulant therapy, was aged, and had suffered a stroke. Further, Plaintiff has pled that Defendant ignored direct orders of the forwarding physician that decedent be restrained to prevent exactly the situation that occurred. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

3. Defendant has confused pleading and proof in the motion. At this time, Plaintiffs have not requested punitive damages in order to meet the requirements of C.C.P. §425.13 and need not meet the pleading requirements of C.C.P. §3294 until the motion to amend the complaint is heard. Thus, the pleading is more than sufficient in view of the pleading of the willful and intentional acts contained in the complaint.

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

It is worth noting that situations similar to those described in this 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 General, or Sutter Hospital.

ON CROSS-EXAMINATION, A BRAIN INJURY EXPERT MAY BE CROSS-EXAMINED REGARDING MATTERS THAT HAVE BEEN ESTABLISHED AS RELIABLE AUTHORITIES

Evidence Code §721(b) provides as follows:

(b) If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs:
(1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion.
(2) The publication has been admitted in evidence.

(3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Pursuant to the said section, once the item of medical literature has been established as a reliable authority by the expert’s testimony, that reliable authority may be utilized to cross-examine the defense expert.

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

It is worth noting that situations similar to those described in this 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 General, or Sutter Hospital.

Plaintiff’s Opposition to Defendant’s Motion in Limine to Exclude Expert Testimony Regarding Inadmissible Hearsay Evidence
AN EXPERT ON DIRECT EXAMINATION IS PERMITTED TO IDENTIFY THE BASIS FOR HIS OR HER OPINION

Evidence Code §801 permits an expert to base his or her opinion on matter “whether or not admissible,” that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, an expert may base his or her testimony on reliable medical authorities including such items as journal articles, books, and other similar reliable authorities that experts traditionally base their opinions on.

Plaintiff has no quarrel with the proposition that the actual content of such journal articles should not be recited by the expert on direct examination. However, the expert must be allowed to identify the medical journal articles upon which she has relied and also identify those medical journal articles that are reliable authorities. (See Part 2 of 2.)

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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.

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

Plaintiff Must Join All Persons Necessary for Just Adjudication

A complaint shall state the names, if known to the pleader, of any person(s) who, by their absence, may leave the defendant subject to risk of incurring multiple or inconsistent obligations. If such persons are not joined as parties, the pleader must state in the complaint why they are not joined. C.C.P. §389(a) & (c).

If any person is allied in interest with plaintiff, but refuses to join as a co-plaintiff, he or she may be sued as a defendant. In such cases, the complaint must state the reasons why such person was so joined. C.C.P. §382. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The plaintiff clearly has at least one sibling, Paul White, who is listed as the son and next of kin of the decedent in the Coroner’s report. It is unknown by defendant if the plaintiff has other siblings or if there are other persons with standing to bring suit in this wrongful death action.

In any event, the plaintiff should be ordered to identify all such persons who have standing to bring this wrongful death action. If such persons do not wish to join as plaintiffs, plaintiff Nancy White should be order to join the involuntary plaintiffs as defendants pursuant to C.C.P. §382.

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