Articles Posted in Medical Malpractice

It is worth noting that situations similar to those described in this medical malpractice 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 CANNOT PROVIDE EVIDENCE TO RAISE A TRIABLE ISSUE OF MATERIAL FACT AS TO THE CAUSE OF ACTION FOR MEDICAL NEGLIGENCE
In order to prevail on a cause of action for medical negligence, a plaintiff must prove that the defendant was negligent by acting below the applicable standard of care, and that this negligence was a cause of plaintiff’s claimed injuries and damages. If the plaintiff cannot prove both of these elements, she cannot maintain a cause of action for medical negligence.

As will be demonstrated, Dr. Black, acted within the applicable standard of care and his actions did not cause nor contribute to plaintiff’s claimed injuries and damages. Should this Court grant Summary Judgment on either or both grounds, plaintiff’s cause of action must fail.

The Issues Of Medical Negligence And Causation Can Only Be Determined By Expert Testimony

In a medical malpractice action, the plaintiff must prove two things in order to prevail. The plaintiff must first prove that the defendant’s actions fell below the applicable standard of triable issue of material fact as to the standard of care rendered by defendants, Summary Judgment must be granted in Dr. Black’s favor.

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 medical negligence 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.)

GILLIAN SMITH DOES NOT HAVE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

In the opposition, Gillian Smith asserts that she has a valid cause of action for negligent infliction of emotional distress (“NIED”) because “Defendants failed to diagnose, treat and warn Plaintiffs of the impending danger to which she unknowingly exposed family members and the public.” Plaintiff relies on Burgess v. Superior Court (1992) 2 Cal.4th 1064; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916; and Ochoa v. Superior Court (1985) 39 Cal.3d 159. These cases do not support a claim for negligent infliction of emotional distress by Gillian Smith.

a. The Allegations Do No Support a Claim for NIED Based on a Direct Victim Theory.

By citing to Burgess and Molien, Gillian Smith is apparently contending that she can recover for NIED as a direct victim based on her allegedly exposing family members and the general public to the allegedly contagious disease. There is no merit to the claim.

Burgess v. Superior Court, supra, 2 Cal.4th 1064, has no application to this action. Burgess is limited to the question addressed by the Supreme Court: Can a mother recover damages for negligent inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery? (2 Cal.4th at p. 1069.)

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 medical malpractice 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.)

REFERENCE TO OR EVIDENCE OF IAN HALL’S PERSONAL BANKRUPTCY IS IRRELEVANT TO THE INSTANT TRIAL AND UNTIMELY EVIDENCE

It is worth noting that situations similar to those described in this medical malpractice 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.)

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Jonathan Black, M.D., is a physician who is Board certified in internal medicine, and practices adult internal medicine at National Medical Clinic and serves as the Medical Director at Community Care and Rehabilitation Center (“CCRC”). Plaintiff filed a Complaint containing one cause of action for medical negligence stemming from the care and treatment associated with a total left knee replacement surgery. As will be demonstrated, plaintiff cannot provide this Court with any competent, admissible evidence that raises a triable issue of material fact. Summary judgment is appropriate.

STATEMENT OF FACTS
On November 14, 2008, plaintiff Susan Dean underwent a total left knee replacement surgery, performed by defendant, Jim Hall, M.D. Plaintiff was discharged from National Community Hospital on November 17, 2008, and transferred to CCRC. Defendant, Jonathan Black, M.D.

(“Dr. Black”) saw the plaintiff on November 20, 2008, at CCRC. At that time Dr. Black noted that plaintiff was in no acute distress. Her knee was clean, dry, and intact. Plaintiff continued to receive physical therapy at CCRC until her discharge date of November 26, 2008.

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 medical negligence 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.)

These allegations have nothing to do with the claim by plaintiff Gillian Smith for negligence. Gillian Smith is seeking to recover damages for the loss of her daughter’s consortium. Recovery of such damages is precluded by Baxter v. Superior Court (1977) 19 Cal.3d 461. If plaintiff Gillian Smith is trying to recover damages for negligent infliction of emotional distress as a bystander witness of the injuries allegedly suffered by her daughter, she has not alleged any facts showing that she had a contemporaneous awareness of any injury at the time it was occurring as required under Thing v. LaChusa (1989) 48 Cal.3d 644, 667-668 and Bird v. Saenz (2002) 28 Cal.4th 910, 920-921.

It is not clear from the opposition to the motion to strike what position Gillian Smith is taking. The opposition states that the first and second causes of action are properly pled and that, therefore, the motion to strike should be denied. However, the motion to strike is not directed at either the first or second causes of action, it is limited to certain allegations set forth in paragraph 12 regarding Gillian Smith allegedly exposing her family, including her daughter, plaintiff Natalie Smith, to the allegedly contagious infectious disease. Gillian Smith cannot recover for loss of her daughter’s consortium or for negligent infliction of emotional distress as a bystander witness. The motion to strike should be granted.

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

Continue Reading ›

It is worth noting that situations similar to those described in this medical malpractice 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.)

Defendant Jonathan Black, M.D.’s Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

It is worth noting that situations similar to those described in this medical malpractice 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.)

Motion in Limine of Defendant Ian Hall to Exclude Any Reference to or Mention of Ian Hall’s Personal Bankruptcy By Plaintiff Kenneth Lee

Defendant Ian Hall, before introduction of evidence, hereby moves this Court for an Order precluding plaintiff, plaintiff’s counsel, any other party or their respective counsel, or any other witness from introducing any evidence of or reference to defendant Ian Hall’s 2008 personal bankruptcy, which was filed on April 9, 2008 and discharged on August 11, 2008, in this Sacramento medical malpractice lawsuit.

This motion is made on the grounds that such references and evidence are irrelevant, prejudicial, and will prove to be confusing and misleading to the jury. Any reference to Ian Hall’s bankruptcy will lead to widespread speculation of the jury, as to nature and extent of that bankruptcy and who it covers. In order to avoid such confusion, and risk of mistrial if jurors make assumptions based on their bankruptcy speculation only, Defendant Ian Hall seeks an order from the Court to preclude any reference or evidence of his personal bankruptcy.

INTRODUCTION

On April 9, 2008, defendant Ian Hall filed for Chapter 7 bankruptcy. Plaintiffs and several co-defendants were listed as creditors in the bankruptcy.

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 medical negligence 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.)

Reply of Defendant Universal Medical Center (Also Sued as Universal Health System) to Plaintiffs Gillian and Natalie Smiths’ Opposition to Defendant’s Motion to Strike Portions of Complaint

Defendant Universal Medical Center (also sued as Universal Health System) files this reply to Plaintiffs’ opposition to defendant’s motion to strike.

INTRODUCTION

This action is premised on care rendered to plaintiff Gillian Smith. Gillian Smith contends that Universal and the other defendants provided negligent care to her regarding a bump on her left hand. Gillian Smith alleges that she was negligently notified that she did not test positive for a highly contagious strain of staphylococcus (“MRSA”), causing her to fail to take precautionary measures and to “unknowingly expose her family, including her daughter, the minor plaintiff, Natalie Smith, to the MRSA, resulting in the daughter’s hospitalization. The first cause of action is asserted by Gillian Smith relating to the care she received at Universal. Universal moves, under Code of Civil Procedure sections 435 and 436, to strike from paragraph 12 of the first cause of action, page 3:27 to page 4:2, of the complaint:

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 medical malpractice 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.)

MEMORANDUM OF POINTS AND AUTHORITIES
EVIDENCE OF PLAINTIFF’S DISPUTE WITH ANY EMPLOYEES, DOCTORS, MEMBERS, PHYSICAL THERAPISTS OR OFFICE STAFF OF ABC COMPREHENSIVE MEDICAL GROUP IS INADMISSIBLE AND WOULD BE PREJUDICIAL UNDER EVIDENCE CODE SECTION 352

Evidence Code Section 352 provides:

The Court, in its discretion, may exclude evidence if its probative value is substantially outweighed by the probability that its its admission will:

a. necessitate undue compensation of time, or,

b. create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

In the instant case, the probative value of this evidence is non existent, as there is no relevant reason to admit any evidence of plaintiff’s minor disputes over scheduling of times for and of treatments with any employees, doctors, members, physical therapists or office staff of ABC Comprehensive Medical Group to the jury.

On the other hand, the prejudice inherent in the admission of such evidence is substantial to the plaintiff, as it would confuse the issues present in this case, and/or mislead the jury with respect to the material issues in this case.

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

Continue Reading ›

It is worth noting that situations similar to those described in this medical malpractice 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.)

MEMORANDUM OF POINTS AND AUTHORITIES
EVIDENCE OF PLAINTIFF’S DISPUTE WITH ANY EMPLOYEES. DOCTORS, MEMBERS, OR OFFICE STAFF OF NATIONAL CENTER FOR SPORTS EXCELLENCE IS INADMISSIBLE AND WOULD BE PREJUDICIAL UNDER EVIDENCE CODE SECTION 352

Evidence Code Section 352 provides:

The Court, in its discretion, may exclude evidence if its probative value is substantially outweighed by the probability that its admission will:

a. necessitate undue compensation of time, or,

b. create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

In the instant case, the probative value of this evidence is non existent, as there is no relevant reason to admit any evidence of plaintiffs minor disputes with any employees, doctors, members, or office staff of Center for Orthopedic and Sports Excellence to the jury.

On the other hand, the prejudice inherent in the admission of such evidence is substantial to the plaintiff, as it would confuse the issues present in this case, and/or mislead the jury with respect to the material issues in this case.

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

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