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, 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 case and its proceedings.)

Evidence of Retirement and Survivor Payments and Benefits Based on Mr. Hill’s Military Service Are Admissible As Collateral Sources

Issues pertaining to the amount of damages sought in this case, particularly in reference to claims made based on Mr. Hill’s projected income must be examined at the time of trial and cannot justifiably be excluded from evidence. For example, serious questions exist as to whether Mr. Hill, even if he otherwise was able to resolve his suicidal tendencies including two § 5150 holds within close proximity to each other, a car accident while driving a military vehicle and a drug overdose, would have allowed him to remain in the military so as to reach full retirement. Had Mr. Hill reached his full 20 years of military service, he would have been entitled to a pension at 50% of his base pay at retirement. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Assuming plaintiffs seeks to present evidence regarding the viability of a full military career to 20 years, defendants are entitled to an offset for whatever equivalent payments Mrs. Hill is receiving in lieu of that pension which would otherwise have not been obtained had he not died. See, e.g. Rotolo v. Superior Court (2003) 105 Cal.App.4th 242. Rotolo dealt with a functionally identical situation as here, of a plaintiff claiming both lost wages (albeit due to a disabling injury, not a death) and lost standard retirement/pension payments benefits of about $875,000. However, the evidence showed that, due to his disability, he was entitled to receive replacement disability retirement payments of a nearly equivalent amount in lieu of his normal retirement, He otherwise would not have received such sums had he not become disabled and retired for this reason.

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It is worth noting that situations similar to those described in this birth injury 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.)

POINTS AND AUTHORITIES
THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY THE VERDICT

Code of Civil Procedure Section 657(6) permits the vacating of a verdict and ordering of a new trial if the evidence was insufficient to justify the verdict. The Fourth District Court of Appeal has held that, in determining whether a new trial may be granted on this ground, the trial court must independently weigh the evidence and assess its sufficiency to support the verdict; a new trial may be granted even if the evidence would be considered sufficient to sustain the verdict reached by the jury on appeal. People v. Capps (1984), 159 Cal.App.3d 546, 552; Candido v. Huitt (1984) 151 Points and Authorities in Support of New Trial Points and Authorities in Support of New Trial Cal.App.3d 918, 923. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In the instant case, the testimony of the experts, including Dr. Hill herself, conclusively establishes that Dr. Hill included DRD in her differential diagnosis. She then failed to rule out this diagnosis and further failed to inform the patient of the availability of a simple medication to diagnose DRD. Given the testimony of plaintiff’s expert witnesses, and Dr. Hill herself, the jury’s failure to find Dr. Hill/The Medical Center negligent was clearly unsupported by the evidence and cannot be substantiated.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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, 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 case and its proceedings.)

Claimed Absence Of Explanation By Dr. Smith

Second, it is interesting that Plaintiffs claim Dr. Smith gave no explanation for how spinal cord injury would be avoided by ordering Mr. Greene into physical therapy. The simple explanation for this claimed failure by Dr. Smith is that the cited questioning was by Plaintiffs’ counsel, who elected not to ask for an explanation.

Testimony Of Dr. Brown As To Physical Therapy

Going to the testimony of treating neurosurgeon Dr. Brown, Plaintiffs claim that he testified that it is below the standard of care to order physical therapy for a patient with a neck fracture. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Unfortunately, Plaintiffs seem to ignore the fact that the standard of care to which Dr. Brown was referring was the neurosurgery standard of care, and that the question itself refers to an order for physical therapy of the neck:

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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, 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 case and its proceedings.)

Plaintiff’s Wrongful Death Action Is Subject to Civil Code § 3333.1

Plaintiff Stella Hill’s wrongful death claim against defendant is thus, subject to collateral source rule articulated in Civil Code § 3333.1, allowing introduction of evidence of any amount payment as a benefit to the plaintiff. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Yates v. Pollock (1987) 194 Cal. App. 3d 195, a wrongful death action by the heirs of the decedent, the court upheld the applicability of Civil Code § 3333.1 and reiterated that that wrongful death claims are for injuries suffered by the heirs of medical malpractice victims. Id at 199. (See also, Krouse v. Graham (1977) 19 Cal.3d 59, 68.) In reaching a determination that the legislative intent of the statutory provisions placing a $250,000 cap on awards for noneconomic damages in all medical malpractice litigation, whether recovery is sought by patients who have themselves suffered personal injuries or by the survivors of such victims who initiate suits for wrongful death, the Yates Court relied on and pointed out the plain, unambiguous language in Civil Code § 3333.2 which states in pertinent part:

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It is worth noting that situations similar to those described in this birth injury 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.)

STATEMENT OF THE CASE

During the course of the trial, the evidence of Dr. Hill’s negligence was based upon her failure to appropriately confirm the differential diagnosis of dopa responsive dystonia by offering the patient a trial of Sinemet (L-dopa). The evidence was undisputed that the diagnosis is made in one of two ways: a trial of L-dopa, or a lumbar puncture with special assay. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

None of the experts testified to an alternative method of diagnosis or treatment under the circumstances at bar. Neither Dr. Hill nor any of the other expert witnesses suggested that she recommend a lumbar puncture. Plaintiff therefore objected to Jury Instruction 506, entitled Alternative Method of Care when offered by the defendant, since same would in effect remove the issue of standard of care from this jury. Initially the court agreed that the instruction may not be warranted. But after argument of counsel, the court, over objection, gave the requested instruction. The instruction states as follows:

A pediatric neurologist is not necessarily negligent just because she chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. (CACI 506)

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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, 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 case and its proceedings.)

The purpose of Civil Code § 3333.1(a) has generally been viewed as an attempt to eliminate the so-called double recovery obtained by plaintiffs who have their medical expenses paid by their own health insurance and still obtain damages for such expenses from defendant tortfeasors. Barme v. Wood (1984) 37 Cal.3d 174, fn.5. Subsection (a) overrides the collateral source rule to a considerable extent in medical malpractice cases, allowing a health care provider to introduce evidence of benefits payable to the plaintiff from the following collateral sources: private health, sickness, accident, or disability insurance, state disability insurance (SDI), workers’ compensation, Social Security survivor’s insurance, Social Security disability insurance (SSDI), or the Supplemental Security Income (SSI) program.

When a defendant chooses to introduce such collateral source evidence under Section 3333.1(a), the plaintiff may introduce evidence of the amounts she has paid, in insurance premiums for example, to secure those collateral source benefits. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The collateral source provision is one of the provisions of MICRA, which was intended to reduce the cost of medical malpractice insurance.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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, 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 case and its proceedings.)

Although, out of context, the terms full-body physical therapy and the absence of special precautions do exist in the cited passage, it is clear from the outset that Dr. Lee did not want any therapy done on the neck. As he said, above Very important now. I say again, therapy is not for neck. The contrary claim by Plaintiffs is simply an attempt to falsely re-characterize very clear testimony. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It should also be noted that Plaintiffs’ only standard of care expert, Dr. Goldstein, testified specifically as to the nature of physical therapy that he would criticize at one point in his trial testimony, and that was as follows (Reporter’s transcript, page 160, line 28 to page 161, line 5):

Q. [by Mr. Howard] All right. And did you find that Dr. Lee had done any of these things?

A. No. And actually ordering physical therapy probably wasn’t a good idea. Generally speaking, if someone has a possibility of a broken neck, I would not order physical therapy of the neck.

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It is worth noting that situations similar to those described in this birth injury 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 Emma and Sabrina Smith’s Points and Authorities in Support Motion for New Trial
INTRODUCTION

As the Court is well aware, this is a medical malpractice case involving Dr. Hill’s diagnosis and care of Emma Smith. The defendant in this litigation was the Universal Hospital Medical Center through their physician, Anne Hill. The case was tried before a jury of twelve and a verdict was returned on April 28, 2008. The verdict was 9 to 3 on negligence in favor of defendant, after the jury inquired about CACI 506. Judgment was entered on May 24,2008, and was served upon Plaintiff on May 31, 2010. On June 15, 2010, Plaintiff timely filed her Notice of Intention to Move for New Trial and her Points and Authorities in Support of New Trial.

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

Plaintiff contends that she was prevented from having a fair trial because of irregularities in the proceeding and errors of law, and that the evidence was insufficient to justify the verdict. Specifically, the evidence did not support the giving of CACI 506, and once given, it was error not to give CACI 533 (modified), Plaintiff’s requested special jury instructions on the theory of informed consent.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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, 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 case and its proceedings.)

PLAINTIFFS APPEAR TO MISUNDERSTAND THE LEGAL REQUIREMENTS FOR A JUDGMENT NOTWITHSTANDING OF THE VERDICT

As mentioned in Defendant’s previous filing, a JNOV must be denied if there is ANY substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict. See authorities cited therein.

Instead, ignoring the testimony cited in the prior Opposition, Plaintiffs appear to argue that there was evidence that COULD support a verdict for the Plaintiffs, and base their arguments for both motions thereon. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Unfortunately, even the cited testimony is mischaracterized in their moving papers.

Physical Therapy Order By Dr. Lee

First, Plaintiffs claim (Points and Authorities, pg. 5, lines 15-17) that Dr. Lee’s treatment plan was overall full body physical therapy… [Emphasis added], appearing to suggest that the plan included physical therapy of the neck.

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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, 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 case and its proceedings.)

Facts

Ms. Hill is receiving at least $1,158/month in the form of a VA death benefit, $288/month as a partial retirement payment based on the decedent’s years of service/date of death, and an additional $60/month as a “family survivor” benefit. Plaintiff seeks economic damages including lost contribution based on decedent’s earnings and projected work life expectancy.

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

Argument
The Collateral Source Rule
Under the traditional collateral source rule, a jury, in calculating a plaintiff’s damages in a tort action, does not take into consideration benefits, such as medical insurance or disability payments, which the plaintiff has received from sources other than the defendant, i.e., collateral sources, to cover losses resulting from the injury. California Civil Code § 3333.1 alters this rule in medical malpractice cases and in wrongful death cases brought by the heirs of medical malpractice victims. Civil Code § 3333.1(a) provides an exception to the collateral source rule in medical malpractice cases. That section states that in the event the defendant so elects, in an action for a personal injury against a healthcare provider based upon professional negligence, she may introduce evidence of:

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