Articles Posted in Medical Malpractice

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

Plaintiffs’ second cause of action does not allege a capacity to sue, is uncertain, ambiguous and unintelligible, and contains a defect and misjoinder of the parties.

Neither Robyn Lee, as an individual, nor as representative of decedent’s estate, has the capacity to sue Dr. Goldstein for medical malpractice – survival. Robyn Lee, as an individual, has no standing to allege medical malpractice against Dr. Goldstein. There are no facts to show that a physician-patient relationship existed at any time between Dr. Goldstein and Robyn Lee, or that any duty of care was owed by Dr. Goldstein to Robyn Lee as an individual, that there was a breach of any such duty, or that the breach of any such duty was the legal cause of any harm to her. Because Robyn Lee, as an individual, cannot assert a survival claim on her own behalf, plaintiffs’ second cause of action fails to allege a capacity to sue. Because Robyn Lee is not decedent’s successor-in-interest or the legal personal representative of decedent’s estate, the second cause of action fails to allege a capacity to sue on behalf of the estate. Defendant’s motion should be granted on this basis.

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

The fact that both Robyn Lee, as an individual, and as the erroneous representative to decedent’s estate, assert this cause of action, the second cause of action is uncertain, ambiguous and unintelligible. It is unclear whether both plaintiffs assert this second cause of action, or just one of them. Defendant’s Motion should be granted on this basis. (15)

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

Robyn Lee is not the successor-in-interest or legal personal representative of decedent’s estate: cont.

Plaintiffs’ First Amended Complaint does not allege that Robyn Lee complied with C.C.P. §377.32. No required declaration was attached as an exhibit. There is no allegation that decedent died with or without a will, or that Robyn Lee is the sole beneficiary under decedent’s will or the sole person who succeeds to his cause of action. There is no allegation that there are no other beneficiaries to decedent’s will or no other persons who succeed to decedent’s cause of action. Therefore, Robyn Lee is not the legal successor-in-interest of decedent’s estate who is allowed to assert the survival action. She thus does not have any standing or legal capacity to assert the survival action on behalf of decedent’s estate. Moreover, the First Amended Complaint does not even allege that the survival action is being brought by Robyn Lee as decedent’s successor-in-interest, but rather it alleges that it is brought by her as the representative of the estate of decedent.

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

California Probate Code §58 (a) defines personal representative as the executor, administrator, administrator with the will annexed, special administrator, successor, personal representative, public administrator acting pursuant to §7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

Robyn Lee is not the successor-in-interest or legal personal representative of decedent’s estate: cont.

C.C.P. §377.32 requires an affidavit or declaration by decedent’s successor-in-interest in order to commence or continue decedent’s cause of action. It provides:

the person who seeks to commence an action or proceeding as the decedent’s successor-in-interest, shall execute and file an affidavit or declaration under penalty of perjury under the laws of this state stating all of the following: (1) The decedent’s name; (2) The date and place of decedent’s death; (3) No proceeding is now pending in California for administrative of the decedent’s estate; (4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor-in-interest; (5) Either of the following, as appropriate, with facts in support thereof: (A) The affiant or declarant is the decedent’s successor-in-interest, and succeeds to the decedent’s interest in the action or proceeding; or (B) The affiant or declarant is authorized to act on behalf of the decedent’s successor-in-interest with respect to decedent’s interest in the action or proceeding;
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 wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

IN A MEDICAL MALPRACTICE ACTION A PARTY PRESENTING UNCONTRADICTED EXPERT TESTIMONY MUST PREVAIL

California Courts have held that where a defendant’s expert testimony is uncontradicted, there is no triable issue of fact for the jury to consider and the defendant must prevail as a matter of law. Willard v. Haggemeister (1981) 121 Cal. App. 3d 406. The Court in Willard at page 412 described the preemptive weight of expert testimony in a malpractice action:

“Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.”

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

In the case of Tresemer v. Barke (1978) 86 Cal.App.3d 656 at page 668 the Court of Appeal amplified this point and held:

“It is settled that an opponent’s failure to file counter-affidavits admits the truth of the movant’s affidavit … The purpose of the summary procedure is to penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues …. ”

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

Facts

Plaintiffs’ First Amended Complaint is brought by Robyn Lee, individually, and as the representative of the Estate of James Smith. (See Plaintiff’s First Amended Complaint.) According to plaintiffs’ First Amended Complaint, Robyn Lee is the daughter of James Smith and the representative of his estate. Plaintiffs also allege that on February 17, 2008, decedent, an elderly man who walked with the aid of a walker, allegedly tripped and fell striking his forehead and suffering injuries. Plaintiffs allege that decedent died on June 23, 2009. Plaintiffs allege two causes of action against Dr. Goldstein: medical malpractice – survival and wrongful death. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Court Should Grant Defendant’s Motion for Judgment On The Pleadings As To Plaintiffs’ Second Cause Of Action For Medical Malpractice – Survival.

Robyn Lee is not the successor-in-interest or legal personal representative of decedent’s estate.

C.C.P. §377.20 provides that a cause of action for a person is not lost by reason of the person’s death, but survives. C.C.P. §377.11 states that decedent’s successor-in-interest means the beneficiary of the decedent’s estate, or other successor-in-interest who succeeds to a cause of action. C.C.P. §377.10 defines the term Beneficiary of Decedent’s Estate. It states that beneficiary of the decedent’s estate means: (a) If the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action…under the decedent’s will; (b) If the decedent died without a will, the sole person or all of the persons who succeed to a cause of action….

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

SUMMARY JUDGMENT SHOULD BE GRANTED WHERE THE ACTION IS WITHOUT MERIT AND PRESENTS NO TRIABLE ISSUE OF ANY MATERIAL FACT

Allowing the Court to look beyond the Complaint to determine whether the plaintiffs have any evidence to support their claim, the California Code of Civil Procedure §437c(a) provides in pertinent part as follows:

“Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit … the motion shall be granted if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is well-established that a motion for summary judgment will be granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1558. A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. California Code of Civil Procedure §437c(p)(2). Once the defendant’s burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

James Smith remained in the Medical Center from February 19 through February 24, 2008. At that time Dr. Martinez ordered that he be discharged to a nursing home (Valley Healthcare Center – not a party) for rehabilitation. At the Valley Healthcare Center, James Smith was evaluated by neurologist (Dr. Greene – not a party). He noted in his consultation report that James Smith was complaining of dull aching pain, deep in the frontal sinus area but no other neurological symptoms. Dr. Greene specifically noted that he was mentally alert and oriented with no definite focal motor weakness. He ordered an MRI of the brain. James Smith was discharged from the Valley Healthcare Center on April 1, 2008.

Mr. Smith was eventually admitted to the Medical Center in May 2009. On or about May 19, 2009 he underwent surgery on his cervical spine. The surgery had to be terminated due to pulmonary/cardiac issues. He was returned to surgery on or about May 26, 2009 and underwent cervical spine surgery. Mr. Smith was discharged from the Medical Center to a skilled nursing facility on or about June 4, 2009. He remained at that skilled nursing, with a few temporary transfers to hospitals for inpatient care, until his death on June 23, 2009.

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 wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

MOTION FOR JUDGMENT ON THE PLEADINGS IS TIMELY AND PROPER

A motion for judgment on the pleadings may be made at any time, even after the time for demur or answer to the complaint. Ion Equipment Company v. Nelson (1981) 110 Cal.App.3d 868, 168. A motion for judgment on the pleadings may be made on the ground that the opposing pleading fails to state facts sufficient to constitute a cause of action. Colberg v. California (1971) 67 Cal.2d 408, 412. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A motion for judgment on the pleadings has the same function as a general demur, but is made after the time for the demur has expired. Except as provided by statute, the rules governing demur apply. Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2005) §7:275; Lance Camper Mfg. Corp. v. Republic Indem. Co. of America (1996) 44 Cal.App.4th 194, 198. The motion for judgment of the pleadings can assert statutory grounds, such as C.C.P. §438(B)(ii) and/or non-statutory grounds. Unless the court orders otherwise the statutory motion for judgment on the pleadings cannot be made after the entry of a pretrial conference order, or 30 days before the date the action is initially set for trial, whichever is later. (C.C.P. §438(e); Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group, 2005) §7.280.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a wrongful death action filed by the adult children of James Smith. This Motion for Summary Judgment is brought on behalf of defendant Peter Hill, M.D. Dr. Hill is an emergency physician who was involved in the care and treatment of James Smith when he presented to the emergency department of the Valley Medical Center on February 19, 2008.

Factually, on or about February 17, 2008, James Smith (age 85) suffered a fall at the premises of the co-defendant National Sporting Goods. On February 19, 2008, he was transported by ambulance to the emergency department of the Valley Medical Center with complaints of neck pain and severe headache. By history, he reported striking the front portion of his head during the fall of February 17.

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

Moving defendant Peter Hill, M.D. was the emergency physician on duty in the emergency department of the Valley Medical Center on February 19, 2008. He evaluated James Smith and ordered diagnostic studies, including a CT scan of the head, a CT scan of the cervical spine (neck), and flat plate x-rays of the neck (all interpreted by co-defendant radiologist Dr. Goldstein).

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

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

Notice of Motion and Motion for Summary Judgment of Defendant Peter Hill, M.D.; Memorandum of Points and Authorities; Declaration of Clive Brown, M.D.

Defendant Peter Hill, M.D., will move this Court for an Order granting summary judgment against plaintiffs Robyn Lee, Individually and as the representative of the estate of James Smith, deceased, Andrea Lane, and Samantha Black (hereinafter “Plaintiffs”) and dismissing all causes of action of the First Amended Complaint on file herein insofar as they relate to defendant Peter Hill, M.D.

This Motion will be brought pursuant to California Code of Civil Procedure §437c, on the grounds that Plaintiffs’ First Amended Complaint has no merit and fails to present any triable issue of material fact insofar as defendant Peter Hill, M.D. is concerned because the care and treatment he provided to the plaintiffs’ decedent was at all times appropriate and within the standard of care. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This Motion will be based upon this Notice, the Memorandum of Points and Authorities and Declaration of Clive Brown, M.D. served and filed herewith, the Separate Statement of Undisputed Material Facts served and filed concurrently herewith, and the pleadings, records, and files in this action. (See Part 2 of 5.)

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