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.)

ARGUMENT
DEFENDANTS’ CONTENTION THAT PLAINTIFF’S EXPERT MUST BE EXCLUDED BECAUSE THE EVIDENCE HE RELIED UPON IN FORMING HIS OPINIONS LACKS FOUNDATION IS INCORRECT MISLEADING AND WITHOUT MERIT
Dr. Hill is plaintiff’s standard of care expert and has clearly demonstrated his expertise, and is qualified to express his opinion in the area of chiropractic care. Dr. Hill’s testimony rests upon a review of plaintiff’s medical records from defendants’ facility and chiropractors therein, and an MRI report ordered by the Defendant/Defendant facility, from XYZ Radiology of Sacramento, dated July 28, 2007, of Plaintiff’s right knee. Dr. Hill also had an understanding of plaintiff’s version of how the event occurred as recited to him by Plaintiff’s attorney, co-counsel, Navid White, who read those portions of plaintiff’s deposition wherein she described how the subject event occurred.

Dr. Hill testified in his deposition as to the records he reviewed and relied upon in forming his opinions. Specifically, at his deposition:

1. Dr. Hill had a stack of records in front of him which consisted of the XYZ Radiology report from Sacramento Imaging, and the records from Defendant’s facility, Universal Chiropractic. Dr. Hill reviewed these records in anticipation of his deposition.

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.)

EXPERT WITNESSES SHOULD BE PRECLUDED FROM TESTIFYING TO ANY OPINIONS NOT EXPRESSED IN THEIR DEPOSITIONS

Code of Civil Procedure § 2034.210 et. seq. provides for the designation of expert witnesses, as well as the discovery of their opinions or conclusions. Section 2034.260 (c)(4) requires that the designated expert be sufficiently familiar with the pending action to submit to a meaningful oral deposition … including any opinion and its bases, that the expert be expected to give at trial. The expert opinion of a witness who was not designated as an expert shall, upon objection of the party that fully complied with the requirement of § 2034.210 et seq., be excluded from evidence at trial (Code of Civil Procedure § 2034.300.)

The importance of pre-trial discovery of an expert’s opinions and conclusions, which the expert intends to express at trial, was discussed in the matter Kennemur v. Slate of California (1982) 133 Cal.App.3rd 907, where the appellate court held that the trial court had properly excluded the testimony of an expert witness who, at his deposition testified that he was not going to express an opinion at trial regarding the issue of causation. The court noted that:

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.)

FACTS

Plaintiff originally presented to defendants’ facility for chiropractic adjustment and treatment. Upon evaluation by another chiropractor in defendant’s office, it was found that plaintiff had tenderness in and around her right knee. On May 25, 2010, after the first chiropractor believed she was unable to perform a manipulation of plaintiff’s left hip she summoned defendant for his assistance.

Plaintiff alleges that defendant performed and/or attempted to perform a chiropractic manipulation on plaintiff’s left hip, which coincidently involved the use of plaintiff’s right knee. Plaintiff alleges that when defendant was preparing to perform the manipulation, and while he had his hand on plaintiff’s right knee, plaintiff experienced a great deal of pain and discomfort in her right knee and asked defendant to not perform the manipulation. Plaintiff alleges that defendant went ahead and performed the manipulation anyway, delivering a great amount of force to her right knee, which caused tearing of the meniscus in her right knee.

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’ Anna Greene’s Opposition to Defendants’ Motion in Limine No. 5 to Exclude Plaintiff’s Expert, Ronald Hill, D.C.; Memorandum of Points And Authorities In Support Thereof.

Plaintiff submits this Opposition to Defendants’ Daniel Li and ABC Chiropractic, Inc.’s (collectively Defendants ), Motion in Limine No. 5, for an order excluding the testimony of plaintiff’s standard of care expert, Ronald Hill, D.C.

This Opposition is based on the following Memorandum of Points and Authorities, the exhibits attached hereto, and on such further argument, evidence or supplemental points and authorities as may be presented at the time of the hearing.

MEMORANDUM OF POINTS & AUTHORITIES
INTRODUCTION
CURRENT POSTURE

Plaintiff’s complaint alleges causes of action for professional negligence, battery, assault, false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress.

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, Daniel Li, D.C. and XYZ Chiropractic, Inc., hereby move this Court, in limine, for an order precluding plaintiff Anna Greene’s orthopaedic expert Hiram White, M.D. from testifying to any opinions not expressed during his deposition.

Defendants further move for the Court’s instructions on the following:

1. An instruction precluding Plaintiff’s Counsel and Plaintiff’s witnesses from conveying the jury, directly or indirectly, the facts provided in this motion without, first, obtaining permission of the Court outside the presence and hearing of the jury; and

2. An instruction precluding Plaintiff, Plaintiff’s Counsel and Plaintiff’s witnesses from making any reference to the filing of this motion.

This motion is based upon the attached memorandum of points and authorities, the pleadings and papers already on file in this matter, and on such further oral and documentary evidence that may be presented at the hearing of this motion.

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 birth injury lawsuit and its proceedings.)

THE THIRD CAUSE OF ACTION FOR WILLFUL MISCONDUCT FAILS

The Third cause of action, entitled “Willful Misconduct,” is based on the same allegations as those contained in the First cause of action for medical malpractice. The pleading does not contain the type of allegations of intentional conduct needed to maintain a cause of action for Willful Misconduct.

Willful Misconduct is generally an element within a cause of action or a claim for damages, such as elder or dependent adult abuse or a claim for punitive damages, and it is doubtful that there exists an independent cause of action in California for willful misconduct. Willful misconduct should be categorized as battery, fraud, etc. The plaintiff seems to be attempting to plead some sort of catch-all intentional tort under the title of “Willful Misconduct.”

Nevertheless, in the event that there does exist such a cause of action, plaintiff has failed to set forth facts in regard to the demurring defendants sufficient to maintain the cause of action. In Nazar v. Rodeffer, 184 Cal. App.3d 546, 552 (1986), the court discussed the concept of willful misconduct as follows:

“The concept of willful misconduct has a well-established, well-defined meaning in California law. Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results.”

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. Stein further opines that the infected fluid around Mr. Brown’s thecal sac caused injury to Mr. Brown.

Defendants breached the standard of care by delaying in the diagnosis and treatment of the infection in Mr. Brown’ lumbar spine.

Dr. Majore will be opining that based on Dr. Singh’s operation report, it is obvious that Mr. Brown suffered from an intraspinal infection. Plaintiff has nerve damage secondary to arachnoiditis. The nerve damage is permanent.

Dr. Majore has the opinion that Mr. Brown requires vocational rehabilitation.

DEFENDANTS FELL BELOW THE STANDARD CARE FOLLOWING THE SEPTEMBER 10, 2008 EMERGENCY SURGERY

Defendants breached the standard of care by failing to make a diagnose or classification of Mr. Brown’s condition so that Mr. Brown could received the proper continuity of medical care appropriate to his condition.

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 birth injury lawsuit and its proceedings.)

Here, plaintiff alleges that defendants failed to advise her mother, Haley White, that a pregnancy with twins carries more risks than a single fetus, and that the defendants failed to advise the plaintiff’s mother of her right to an abortion. Plaintiff does not allege that there was anything wrong with the pregnancy, other than the fact that the plaintiff was a twin, or anything else to suggest that the plaintiff’s mother was at risk for complications or needed special precautions to prevent pre-term labor. Unlike Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 165 Cal.Rptr. 477, where a properly performed genetic test would have provided a high probability (id. at p. 815) of disclosing the risk of Tay-Sachs disease, there is no test that could have been offered to plaintiff’s mother which would have revealed the potential problems allegedly suffered by plaintiff, Joan White. Additionally, when testing revealed the shortening of Haley White’s cervix, and cerclage was recommended, Ms. White refused it.

A hypothetical possibility that some unstated or unknown action on the part of the moving defendants might have revealed some problem does not establish a reasonably probable causal connection (Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 403) between defendants’ alleged negligence and plaintiff’s injuries. A less than 50-50 possibility that defendants’ omission caused the harm does not meet the requisite reasonable medical probability test of proximate cause. (Id. at p. 404).

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. Stein also opined in his deposition that the Defendants violated its own policies and procedures as set fort in its Patients’ Rights document.

Dr. Majore will opine that the defendants fell below the standard of care when they failed to take adequate steps to determine the extent of neurological involvement causing Mr. Brown’s symptoms following the surgery of August 20, 2008.

Dr. Majore will be opining that the defendants fell below the standard of care when they failed to properly document the patient’s file with the e-mails discussing the patients’ care.

Dr. Majore will be opining that the attending physicians employed by the defendants fell below the standard of care when they failed to properly sign the medical records.

DEFENDANTS FELL BELOW THE STANDARD CARE WHEN THEY FAILED TO TIMELY DIAGNOSE AND TREAT PLAINTIFF’S INFECTED FLUID COLLECTION/20 ABSCESS AUGUST 31, 2008 THROUGH SEPTEMBER 9, 2008

Dr. Stein’s Declaration (Exhibit “A”) further set’s forth his opinion that the Defendants fell below the standard of care after he was discharged from the hospital on August 27, 2008 as follows:

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 birth injury lawsuit and its proceedings.)

PLAINTIFF’S COMPLAINT LACKS
SUFFICIENT FACTUAL SUPPORT AND IS UNCERTAIN

California recognizes a parent’s cause of action for the wrongful birth of a genetically deformed child where the physician negligently failed to inform the parent of the risk of bearing such a child. (Turpin v. Sortini (1982) 31 Cal.3d 220, 225, 182 Cal.Rptr. 337, 643 P.2d 954) In a successful wrongful birth and wrongful life action, the parents may recover for medical and extraordinary teaching and training expenses incurred during the child’s minority, but the child may not also recover for those same expenses. (Turpin v. Sortini, supra, 31 Cal.3d at p. 236.) The child may only recover medical expenses and special damages where the parents are unavailable to sue or where the expenses are incurred beyond the time of the parents’ legal responsibility for such care. (Ibid.) In addition, the child may not recover for pain and suffering and other general damages (id. at pp. 238-239), or for a loss of earning capacity (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 614, 208 Cal.Rptr. 899).

As in ordinary medical malpractice cases, the plaintiffs in a wrongful life and wrongful birth case must establish the following basic elements: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433; Turoin v. Sortini, supra, 31 Cal.3d at pp. 229-230.)

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

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