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 birth injury lawsuit and its proceedings.)

PLAINTIFF’S COMPLAINT IS PROPERLY SUBJECT TO DEMURRER

California Code of Civil Procedure § 430.10 provides the proper grounds for demurrer, stating in pertinent part:

“The party against whom a complaint … has been filed may object, by demurrer … to the pleading on any one or more of the following grounds:(e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain.” As used in this subdivision, “uncertain” includes ambiguous and unintelligible. At this time, demurring defendants demur solely to plaintiff’s Second cause of action for Wrongful Life and Third cause of action for Willful Misconduct, California Code of Civil Procedure § 430.50(a) states in pertinent part, “A demurrer to a complaint … may be taken to the whole complaint … or to any of the causes of action stated therein.”

It is well settled that a plaintiff must set forth specific facts in a Complaint in order to enable a defendant to intelligently respond to the pleading without having to guess or speculate as to the items of material or essential facts. (Ankenv v. Lockheed Missile & Space Company, (1979) 88 Cal.App.3d 531, 537). In addition, in examining a Complaint for its legal sufficiency to withstand a demurrer, [a] demurrer admits all material and issuable facts properly pleaded [citations omitted]. However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. (Gruenberg v. Aetna Insurance Co, (1973) 9 Cal.3d 566, 572).

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 Thomas Brown (hereinafter, “Plaintiff”) by and through his attorneys of record, and hereby submits the following Trial Brief on the Scope of Plaintiff’s Experts’ Testimony on Standard of Care.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Dr. Stein testified he had opinions on whether the defendants fell below the standard of care as well as the cause of Plaintiff’s damages. Dr. Majore testified that he would be giving opinions on the standard of care within the scope of his medical practice of pain management.

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

DEFENDANTS FELL BELOW THE STANDARD CARE DURING PLAINTIFF’S HOSPITAL STAY FROM AUGUST 20, 2008 THROUGH AUGUST 27, 2008

Dr. Stein prepared a Declaration which was provided at his deposition and attached as Exhibit “2.” Dr. Stein’s Declaration contains a section entitled “Opinions” which lists 12 opinions. The first six opinions are quoted as follows:

“The following are examples of what exactly fell below the standard of care:

1. No postoperative visit by Dr. White to explain Mr. Brown’s complications and his prognosis.

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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 Barbara Smith, M.D. and the XYZ Perinatal Medical Group, Inc.’s Demurrer to Plaintiff Joan White’s Complaint.

PLEASE TAKE NOTICE that defendants Barbara Smith, M.D. and XYZ PERINATAL MEDICAL GROUP, INC., will and hereby do Demur to plaintiff’s Complaint on the following grounds:

1. The Second Cause of Action for Wrongful Life seeks non-recoverable damages and fails to state facts sufficient to state a cause of action, and is uncertain;

2. The Third Cause of Action for Willful Misconduct fails to state facts sufficient to state a cause of action, and is uncertain.

This Demurrer will further be based upon this notice, the attached Memorandum of Points and Authorities, all records and pleadings on file herein, and any other further oral and/or documentary evidence as may be presented at the time of this hearing of this Demurrer.

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.)

Not long ago, the U.S. Supreme Court, in Tory v. Cochran (2005) 542 U.S. 965, struck down an injunction issued by a judge of this court (and upheld by the Court of Appeal), prohibiting petitioners from picketing, displaying signs, placards or other written or printed material, and from orally uttering statements about one Johnnie L. Cochran, Jr., and about Cochran’s law firm in “any public forum.”

In so holding, the Supreme Court found that the injunction … amounts to an overly broad prior restraint upon speech, lacking plausible justification, and that “Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” (Tory. supra)

Then, just three years ago, in ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 135 Cal.App.4th 841, Justice Epstein, for Div. 4 of our 2nd District, affirmed a courageous (conservative Republican) judge, (Stephen Peterson, who sits in Van Nuys) who held unconstitutional, strictly on 1st Amendment grounds, Civil Code. Section 2527, a statute compelling speech, with severe consequences for its violation.

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 wrongful death lawsuit and its proceedings.)

The standard of requiring proof within a reasonable medical probability for proximate cause has been repeatedly upheld. See Alef, v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216; Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 704; Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603; Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498. Plaintiff cannot recover unless it can be shown that the injuries were, more probably that not, caused by a negligent act or omission of the defendant, and this must be established by testimony from a competent medical expert.

The accompanying declaration of James Chin demonstrates his competency to opine as a board certified surgeon expert as well as his opinion to a reasonable medical probability that no act or omission to act caused by moving defendant caused or contributed to David White’ death. Dr. Chin has opined to a reasonable medical probability, that The CMC’s attending surgeons and Dr. Daniel Black did not cause or contribute to David White’s death.

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’ INFORMATION IS SPECULATIVE AT BEST. THERE IS NO CERTAINTY OR REASONABLE PROBABILITY THAT THE BENEFITS WILL INDEED BE AVAILABLE TO THE MINOR PLAINTIFF IN THE FUTURE

The defendant’s assertion regarding the future services or benefits to which the minor child may be entitled to now or years into the future is speculative at best. Whether the benefits or services identified by defendant’s expert witness will truly be available to and provided to plaintiff in the future is contingent upon many variables: (1) whether the public services identified have been, and will continue to be, funded by the Legislature, (2) whether the funding is adequate to meet the expressed goals and needs of the legislation, such as the numbers of personnel and expertise of personnel, as well as any necessary equipment and facilities, (3) the numbers of eligible recipients, and (4) whether such services may be available in other locales thereby inhibiting plaintiff or her family from living elsewhere.

It is impossible to predict, whether to a certainty or to a reasonable probability, whether the services and benefits identified by the defendants will be available to plaintiff now, a year from now, five years from now, or at any time in the future. Unlike rights which are secured by contract, the benefits or services identified by the defendant are not vested in plaintiff and may, as the public has seen, be lawfully terminated by the legislature.

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 wrongful death lawsuit and its proceedings.)

NO ACT OR OMISSION OF A DUTY TO ACT BY DEFENDANT CAUSED OR CONTRIBUTED TO THE DEATH OF DAVID WHITE
The standard of proof for causation in a medical malpractice action requires that the plaintiff prove that the defendant’s negligence was a substantial factor in bringing about the injury or harm. Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052-53; BAJI No. 3.76 (1994).

However, a standard of reasonable medical probability was applied in Morgenroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d 521:

“Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of any intervening cause …. We consider the better rule to be that in order to comport with the standard of proof ofproximate cause, plaintiff in a medical malpractice case must prove the defendant’s negligence, in probability, proximately caused the death. The authorities in this state are in accord that in a malpractice case, a mere possibility alone is not sufficient …” Morgenroth, supra, at 533.

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.)

IT IS APPROPRIATE FOR A PLAINTIFF TO INCLUDE A PRAYER FOR A SPECIFIC DOLLAR AMOUNT. AS WELL AS A PRAYER FOR PUNITIVE DAMAGES. AS CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 425.13(a) (AS IS C.C.P. SECTION 425.10) IS PATENTLY UNCONSTITUTIONAL

Preventing plaintiffs from stating the amount of damages they seek violates a litigant’s First Amendment right to free expression, as the two cited statutes command prior restraint on freedom of expression.

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

To put this matter in perspective, we start with the dissenting opinion of our late, beloved Justice Mosk, who, more than a decade past, in Schwab v. Rondel Homes, Inc. (1991) 53 Cal. 3d 428, 440-441, 280 Cal.Rptr. 83, wrote:

“A statutory scheme that forbids a party to provide useful information-a form of compulsory silence-and that creates anomalous results … urgently needs reexamination. Moreover, in a newsworthy case, a lawyer or party can always call a press conference and trumpet the claims to the heavens, or at least to the terrestrial media. Thus, not only are (Code of Civil Procedure) sections 425.10 and 425.11 bad law and bad policy, they are an ineffective means of implementing the legislature’s apparent intent. Nor can they be made effective: I cannot conceive of legislation that could constitutionally prevent plaintiffs with sensational personal injury damage claims from announcing those claims in any forum whatsoever.”

Time marches on.

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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 wrongful death lawsuit and its proceedings.)

The accompanying declaration of James Chin, M.D., demonstrates his competency to opine as a board certified surgeon. James Chin, M.D., has submitted his declaration in support of moving defendants. Dr. Chin has opined that Dr. Daniel Black and the attending surgeons from The CMC complied with the standard of care in their intervention, care and treatment of David White. The surgical repair of the stab wound to the neck and the subsequent surgery to control bleeding in the neck area was performed within the standard of care. The fact that a second surgery to control bleeding was performed is not below the standard of care given Mr. White injury.

The order for placement of the Foley catheter before surgery and after surgery complied with the standard of care as it allowed the physicians to monitor fluid intake and output in a patient who was undergoing alcohol withdrawal. Typically Foley catheters are not inserted by surgeons unless there is difficulty with placement. The surgeons do not monitor the status of Foley catheters unless they are notified of problems relating to the Foley catheter such as placement or function. David White’s Foley catheters continued to function properly noting normal looking urine and normal amounts of urine the green discharge from the penis and sediment noted in the urine on January 2, 2009. When the nurses noted these changes, the physician was immediately notified. The physician appropriately responded by placing a suprapubic catheter inserted through the pelvis to allow drainage of the urine.

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.)

Civil Code Section 3333.1 does not abrogate the collateral source rule as to any benefits which a medical malpractice plaintiff has received. Rather, the Legislature was precise in delineating which collateral sources were to be included in this exception to the collateral source rule; not all payments made by the state or federal governments were included. See Brown v. Stewart (1982) 129 Cal.App.3d 331.

The plain language of Civil Code Section 3333.1 provides that evidence may only be received of benefits which claimant has received. See Fein v. Permanente Medical Group (1985) 38 Cal.3d 137; Brown v. Stewart (1982) 129 Cal.App.3d 331; Robinson v. Pediatric Affiliates Medical Group (1979) 98 Cal.App.3d 907. Civil Code Section 3333.1 reasonably does not allow for the introduction of evidence concerning potential benefits to which plaintiff may be entitled, or which plaintiff may be eligible.

The uncertainty of an individual actually receiving future promised benefits was recognized by the Legislature as too speculative to include within Civil Code Section 3333.1.

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

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