Articles Posted in Brain Injury

It is worth noting that situations similar to those described in this traumatic brain injury 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 HAS PLED SUFFICIENT FACTS TO JUSTIFY SEEKING PUNITIVE DAMAGES IN PARAGRAPH 39 AND SETTING FORTH THE PRAYER FOR SUCH RELIEF
Plaintiff Has Met the Notice Pleading Requirement Under California Law

As established above, under California’s notice pleading requirement, Plaintiff has only to plead ultimate facts sufficient to apprise Defendant of the basis upon which Plaintiff is seeking relief. Paragraphs 6-7, 12-14, 29, 32, 34-35 and 39 of Plaintiff’s Complaint contain sufficient factual allegations regarding Dr. Brown’s actions that amount to despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Cal. Civ. Code § 3294.)

Plaintiff’s allegations against Dr. Brown that give rise to punitive damages are consistent with Roth v. Shell Oil Co. (1960) 185 Cal.App.2d 676 and Fick v. Nilson (1950) 98 Cal.App.2d 683, as they are based on facts and not speculation. Plaintiff has alleged that Defendant worked excessive hours as a resident atUniversal Hospital, worked an overnight shift the night of the incident, knew or should have known that driving home while fatigued and sleep-deprived could result in dangerous harm to others, drove home in a fatigued and sleep-deprived condition and caused her vehicle to mow down Plaintiff. Plaintiffs allegations are rooted in facts, not conjecture.

What the eyewitnesses said is factual, not speculative. The allegation regarding what the witnesses observed in Paragraph 29 is taken directly from the statements witnesses provided to police officers at the scene of the incident. That allegation is rooted in fact, not conjecture and supports Plaintiff’s notice pleading regarding punitive damages.

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 traumatic brain injury 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 Taylor, the Supreme Court explained the availability of punitive damages to plaintiffs in motor vehicles tort actions:

A conscious disregard of the safety, of others may constitute malice within the meaning of Section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully [sic] and deliberately failed to avoid those consequences. Id. at 895. (emphasis added.) Taylor and Peterson are directly applicable to this case. Plaintiff’s prayer for punitive damages, which is based on Dr. Brown’s awareness of the probable dangerous consequences of operating a vehicle under fatigue and while asleep and her actions of deliberately failing to avoid the dangerous consequences by driving in a fatigued state, is undeniably supported by California law.

Plaintiff has also sufficiently alleged that Defendant’s actions were “reckless” within the meaning of C.C. § 3294. “Recklessness” is defined as:

[A] subjective state of culpability greater than simple negligence, which, has been described as a “deliberate disregard” of “the high degree of possibility” than an injury will occur. Recklessness, unlike negligence, involves more than “inadvertence, incompetence, unskillfulness, or a failure to take precautions” but rather rises to the level of a “conscious choice of a course of action … with knowledge of the serious danger to others involved in it.” Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.

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 traumatic brain injury 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
LEGAL STANDARDS ON MOTION TO STRIKE

Motions to strike are not favored. Weil & Brown, Civil Procedure Before Trial, § 7:197. The policy of California law is to construe the pleadings liberally … with a view to substantial justice. C.C.P. § 452.

Plaintiff’s Complaint meets the notice pleading requirements under California law. What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. Perkins v. Superior Ct, (1981) 117 Cal.App.3d 1, 6. Specificity is not required in the Complaint because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading. Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.

The Complaint adequately informs Dr. Brown of the damages sought and the legal bases for those damages. Since Plaintiff has met the notice pleading requirements, Dr. Brown’s motion to strike should fail on all accounts.

PUNITIVE DAMAGES ARE ALLOWABLE IN NEGLIGENCE ACTIONS

Dr. Brown erroneously argues that her negligent or reckless use of a vehicle is not sufficient to warrant punitive damages. This is not a case of mere negligence as Dr. Brown asserts. Plaintiff seeks punitive damages against Dr. Brown pursuant to Civil Code Section 3294, which states in pertinent part:

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 traumatic brain injury 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.)

13 C.C.R. 1214 provided that no driver shall operate a motor vehicle while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness or any other cause, as to make it unsafe for her to begin or continue to operate the motor vehicle.

Cal. Veh. Code § 21209 provided that no person shall operate a motor vehicle in a bicycle lane established on the roadway pursuant to section 21207 except to park where permitted, to enter or leave the roadway or to prepare for a turn within 200 feet from the intersection.

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

Cal. Veh. Code § 21663 provided that except as expressly permitted pursuant to the vehicle code, no person shall operate or move a motor vehicle upon a sidewalk except as may be necessary to enter or leave adjacent property.

Cal. Veh. Code § 21952 provided that the driver of motor vehicle, prior to driving over or upon a sidewalk, shall yield the right-of-way to any pedestrian approaching thereon.

Cal. Veh. Code § 22107 provided that no person shall turn a vehicle from a direct course or move right or left upon a roadway until such’movement can be made with reasonable safety and then only after the giving of an appropriate signal.

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It is worth noting that situations similar to those described in this traumatic brain injury 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.)

ADDITIONAL ALLEGATIONS OF MALICE – DESPICABLE CONDUCT WHICH IS CARRIED ON BY DR. BROWN WITH THE WILLFUL AND CONSCIOUS DISREGARD OF THE RIGHTS OR SAFETY OF OTHERS

Plaintiff specifically pled additional facts – not conclusions – supporting the allegations of malice. For instance, in Paragraph 29, the following facts were pled:

29. Defendant Melissa Brown, M.D., failed to use reasonable care while negligently, wantonly and recklessly driving the subject vehicle east on University.

Defendant Melissa Brown, M.D., fell asleep while driving and drove the subject vehicle up and onto the raised sidewalk and struck the pedestrian Plaintiff from behind.

Plaintiff flew violently onto the hood and smashed into the windshield, then up onto the roof. He was carried approximately 59 feet east before being thrown off the top of the vehicle. Defendant Melissa Brown, M.D., then dragged Plaintiff approximately 38 feet where she ultimately ran over him while still asleep.

Witnesses at the accident site described Defendant Melissa Brown, M.D., as being dazed and confused, and acting like a spectator who did not understand what was going on.

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 traumatic brain injury 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.)

STATEMENT OF FACTS

It is worth noting that situations similar to those described in this traumatic brain injury case could just as easily occur with hospital staff 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.)

Plaintiffs Opposition to Defendant Melissa Brown, M.D.’s, Motion to Strike Punitive Damages
INTRODUCTION

On June 16, 2009, at approximately 2:30 p.m. in the afternoon, Melissa Brown, M.D., fell asleep while driving and mowed down the Plaintiff, David Hall, as he was jogging on the sidewalk. Dr. Brown caused David to sustain serions and permanent injuries, including: traumatic brain injury, post-traumatic stress disorder, thoracic spine fractures, left fibula fracture, multiple lacerations, severe abrasions (road rash) from his upper back, arms, knees, thighs and toes, and contusions.

Dr. Brown, who is to do no harm as a physician, left Universal Hospital where she had been working, and drove home in a fatigued and sleep-deprived condition. Her ability to drive safely was significantly impaired. Her decision to drive while impaired is no different than a person driving under the influence of drugs or alcohol in conscious disregard for the safety of others. Punitive damages are routinely pled in motor vehicle accident cases where the defendant was driving under the influence. See, e.g., Peterson v. Superior Ct. (1982) 31 Cal. 3d 147; Taylor v. Superior Ct (1979) 24 Cal.3d 890, 894.

In fact, Plaintiff is clearly entitled to plead punitive damages under statutory and common law rights controlling his causes of action. Those include, inter alia: Civ. Code § 3294; Potter v. Firestone & Rubber Co. (1993) 6 Cal.4th 965, 985; Taylor, 24 Cal.3d at 894.

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

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

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

WHITE SUFFERED NECK, BACK AND SHOULDER INJURIES

Plaintiff had pre-existing degenerative disc disease (DDD) in her neck and back and occasional left shoulder pain. In the accident, she aggravated these conditions causing her DDD to lit-up. Mrs. White has continued to have left side weakness and low back flare ups. These problems have been treated with chiropractic therapy, physical therapy and massage therapy to manage her neck, shoulder and back symptomatology. Defendants concede she suffered soft tissue injuries in the accident but claim they should have healed in a matter of a few months.

PAST MEDICAL BILLS
Total Medical Bills without Prescriptions. $ 31,020.45
EMPLOYMENT LOSS

In November 2007, Mrs. White was hired by the County Bank. As a Vice-president at County Bank, Mrs. White’s salary was set at $87,500.00 plus benefits and bonuses. After the accident, she was let go within weeks for strategic reasons by County Bank. Mrs. White tried to get another job with a bank but was unsuccessful. In April 2008, Mrs. White took a job as a front desk receptionist/office assistant at Lee Chiropractic Clinic where she was paid $11.00 per hour. Mrs. White was hired for her lovely demeanor and obvious people skills and was expected to learn the job within a few months. Unfortunately, Mrs. White’s cognitive injury led to her having difficulty working as a receptionist. Dr. Lee explained that Mrs. White had numerous difficulties with her job requiring frequent retraining as follows:

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

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

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

MRI STUDIES OF MRS. WHITE CONDUCTED POST-ACCIDENT FOUND DIFFUSE WHITE BRAIN MATTER LESIONS CONSISTENT WITH TRAUMATIC BRAIN INJURY cont.

There is a conflict of evidence as to whether Mrs. White told the ER doctor that she hit her head in the accident. Mrs. White was examined, given pain medications treated and released from the emergency room and told to see her family doctor.

On January 28, 2008, Mrs. White was seen by Dr. Olden who diagnosed her head pain as mild post-traumatic concussion. When her head pain persisted and she reported numbness in her face and drooling, an MRI study of her brain was done on May 22, 2008.

There is no dispute that the MRI studies in this case have documented that Mrs. White’s brain has a diffuse bilateral small to moderate white matter lesions. After reviewing the May 22nd MRI, Dr. Olden concluded that the white brain matter lesions were most consistent with axonal shear injuries in the brain.

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

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

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

DEFENDANT BLACK WAS 100% AT FAULT IN CAUSING THE ACCIDENT

Defendant GHI has admitted in response to admissions that defendant Black was their employee on the day of the incident. Defendant Black has admitted in admissions that his negligence caused the accident. Defendant Black also testified at his deposition that neither Mr. White nor anyone else had done anything that caused or contributed to causing this three vehicle collision. Thus, the issues in this case are the nature and degree of injuries plaintiff suffered in the accident.

THERE WAS NO COMPARATIVE FAULT ON THE PART OF PLAINTIFF

At the time of the collision, Mrs. White was wearing her seat belt as determined by CHP Officer Hall. By wearing her seat belt and timely stopping for traffic ahead of her, Mrs. White did all the law required of her. Mrs. White was not comparatively at fault.

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

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