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 Donald Hall’s Motion in Limine No. 1 to Exclude Evidence of Plaintiff’s Disputes with National Center for Sports Excellence; Memorandum of Points and Authorities

Plaintiff, Donald Hall, hereby moves this Court for an order to exclude any evidence of plaintiff’s disputes with National Center for Sports Excellence; and an order directing all parties, their counsel, witnesses and other persons participating in the trial to refrain from any reference, mention of, or allusion to plaintiffs disputes with any employees, doctors, members, or office staff of National Center for Sports Excellence.

This motion is made on the grounds that said evidence is inadmissible pursuant to Evidence Code Sections 350, 351, and 352, as its probative value is outweighed by the probability of undue prejudice against this plaintiff. Any comment or attempted introduction of the above evidence would be improper and highly prejudicial. Even if the court sustained an objection to the evidence at trial and instructed the jury to disregard it, the evidence would be so prejudicial that plaintiff could not receive a fair trial.

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.)

Plaintiff Donald Hall’s Motion in Limine No. 2 to Exclude Evidence of Plaintiff’s Disputes with ABC Comprehensive Medical Group; Memorandum of Points and Authorities

Plaintiff, Donald Hall, hereby moves this Court for an order to exclude any evidence of plaintiff’s disputes with ABC Comprehensive Medical Group; and an order directing all parties, their counsel, witnesses and other persons participating in the trial to refrain from any reference, mention of, or allusion to plaintiff’s disputes with any employees, doctors, members, physical therapists or office staff of ABC Comprehensive Medical Group.

This motion is made on the grounds that said evidence is inadmissible pursuant to Evidence Code Sections 350, 351, and 352, as its probative value is outweighed by the probability of undue prejudice against this plaintiff. Any comment or attempted introduction of the above evidence would be improper and highly prejudicial to plaintiff.

Further, even if the court sustained an objection to the evidence at trial and instructed the jury to disregard it, the evidence would be so prejudicial that plaintiff could not receive a fair trial.

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.)

DEFENDANTS’ ARGUMENT THAT PLAINTIFF’S EXPERT SHOULD BE EXCLUDED FROM TESTIFYING AT TRIAL BECAUSE HE DID NOT READ DEFENDANT’S DEPOSITION LACKS MERIT OR IN THE ALTERNATIVE IS MOOT

Dr. Hill did not have the opportunity to read defendant, Dr. Li’s deposition, because it was taken three days prior to Dr. Hill’s deposition and was not available for him to review. Plaintiff asserts that the fact that Dr. Hill did not review defendant’s deposition is of no consequence because defendant claims that 5 plaintiff’s allegations, in terms of how the adjustment occurred and the fact that she did not give consent for the adjustment, never occurred. If defendants believe that it is an important point that Dr. Hill did not read defendant’s deposition then they are welcome to cross-examine him on it at the time of trial. But this does not serve as a basis to exclude him as an expert.

DEFENDANTS’ ARGUMENT THAT PLAINTIFF’S EXPERT SHOULD BE EXCLUDED FROM TESTIFY AT TRIAL BECAUSE HE WAS NOT PROVIDED WITH THE DEPOSITIONS OF THE SUBSEQUENT TREATERS ALSO LACKS MERIT

Following her treatment with defendants on May 25, 2007, plaintiff underwent arthroscopic surgery by a Dr. Gray for a meniscal tear.

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.)

When this case is presented at trial, Defendants will have prepared their defense in reliance on the representations of Dr. White, that he has expressed every opinion to which he might testify at the time of trial. As such, Defendants are acting in reliance of Dr. White’s representations throughout his deposition. Defendants have relied on his testimony that on the date of, and prior to his deposition, he had not formed an opinion as to the causation of Plaintiff’s injuries.

Further, he testified he could not form an opinion as he was not versed in chiropractic manipulations, thus expressing that he was not qualified to form an opinion as to causation. Lastly, Defendants relied on Dr. White testimony that not only did he not form an opinion as to causation, but that an opinion as to causation could not be established unless he internally inspected the meniscus within 48 hours. It would therefore be tremendously prejudicial, and would cause Defendants irreparable harm, if Dr. White was permitted to testify at trial to opinions not previously disclosed during their depositions. Moreover, to allow the same would run contrary to the Discovery Act in eliminating the element of surprise at the time of trial, especially in light of the fact that Defendants were not provided any notice to the contrary. Plaintiff failed to provide Defendants notice during Dr. White’s deposition, or after, pursuant to Easterby.

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.)

For example, in this regard, Dr. Hill testified as follows:

He does not believe Dr. Li was performing an adjustment on plaintiff’s knee. It is his understanding that plaintiff’s knee hurt and that Dr. Li decided to do something about it and during her evaluation she mentioned that she does not feel comfortable with Dr. Li touching the knee and that he did a manipulation anyway that made her knee worse.

He does not know if plaintiff received a knee adjustment from defendant facility or defendant prior to the date in question because that information is not written in the chart, and it does not say who treated her on any one date.

He could not tell what chiropractic adjustment was done to Ms. Welden on May 25, 2007, because he could not read the notes very well; he could not understand the chart.

He does not know the specific forces used during defendant’s adjustment of plaintiff because he doesn’t know what adjustment defendant used. He can only base his opinion on what the patient says was done. He does not know if Dr. Li did an evaluation of plaintiff’s knee prior to the adjustment because the identity of the person who did the evaluation is not noted.

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.)

“The overarching principle in Kennemur, Jones, and Bonds is clear: a party’s expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult.” (Easterby v. Clark, (2009) 171 Cal. App. 4th 772, 780)

In Easterby, the plaintiff’s doctor testified, at his deposition, that he would not be testifying as to causation; however, later, upon learning additional facts, changed his mind and said he would testify as to the causation of plaintiff’s injuries. The plaintiff’s counsel wrote and delivered a letter to defense counsel to this affect. Despite this notice, defense counsel opted not to re-depose plaintiff’s doctor and successfully motioned to have his testimony excluded at trial. The Appellate Court concluded that the Trial Court erred by striking the plaintiff’s doctor’s testimony because defense counsel had notice that the plaintiff’s doctor would be testifying as to causation.

In the case at bar, Hiram White, M.D., consistently testified throughout his deposition on February 19, 2010, that he had not formed an opinion as to the causation of Plaintiff’s alleged injuries.

Q. Did you ever form an opinion as to whether or not what she [Plaintiff] described to you was the cause of any of her injuries that you either saw on that MRI or found at the time of surgery? A. No.

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.)

DR. LI IS RESPONSIBLE FOR THE DISCREPANCY ABOUT WHETHER HE PERFORMED A RIGHT KNEE ADJUSTMENT OR A LEFT HIP ADJUSTMENT

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.)

The policy of full disclosure of expert opinion at pre-trial deposition was confirmed by the Second District Court of Appeal in the case Jones v. Moore (2000) 80 Cal.App.4th 557. In the Jones matter, the plaintiff’s expert was asked whether he believed the defendant’s conduct fell below the standard of care in areas other than the negotiation of the underlying divorce settlement. The expert stated that he was not prepared to testify to that issue at this time. When asked if he anticipated arriving at any other opinions, the expert testified “no, but if I do, you will be notified well in advance, so as to be able to properly exercise your discovery rights.” (Id. at 563.)

At trial, the expert in the Jones matter testified that the defendant’s conduct fell below the standard care when he failed to properly secure the source of the plaintiff’s marital support income, a task unrelated to his negotiations of the underlying settlement and judgment. The court excluded this opinion holding under the circumstances, exclusion of testimony going beyond the opinions he expressed during his deposition was justified. When an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he tends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial.

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.)

DR. HILL SPECIFICALLY STATED HIS OPINIONS AT THE TIME OF HIS DEPOSITION

In addition to basing his opinions upon reliable medical evidence as set forth above, Dr. Hill clearly stated what opinions he is going to express at the time of trial:

1) He is going to be testifying regarding both general standard of care or lack thereof for chiropractors.

2) He is going to be offering opinions regarding how chiropractic adjustment can cause injury.

3) He is going to be offering opinions as to what the standard of care requires for obtaining a history.

4) He is going to be offering an opinion as what the standard of care requires when conducting a physical examination.

5) He is going to be offering an opinion as to when the standard of care calls for ordering an x-ray and/or an MRI..

6) He is going to be offering an opinion specifically as to the standard of care as it applies to the manner in which defendant Daniel Li, D.C., performed the adjustment on plaintiff.

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.)

As noted in Gallo v. Peninsula Hospital (1985) 164 Cal.App.3rd 899, 903, the need for pre-trial discovery as an aide to the preparation of cross-examination and rebuttal is greater with respect to the expert witness than it is in the case of an ordinary fact witness. Full disclosure is required because if not, the result:

“Would introduce ‘gamesmanship’ into the discovery proceedings; a result in direct conflict with purpose to make a trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” (Id. at 904.)

In Bonds v. Roy (1999) 20 Cal.4th 140, the Supreme Court recognized the full pre-trial disclosure of expert opinion as crucial to meaningful trial preparation:

“Indeed, the very purpose of the expert witness discovery statute is to give fair notice of what an expert will say at trial. This allows the parties to … fully explore the relevant subject area at any such deposition … the opportunity to depose an expert during trial, particularly if the testimony relates to a central issue, often provides a wholly inadequate opportunity to understand the expert’s opinion and to prepare to meet it.”

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

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