Articles Posted in Medical Malpractice

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.)

MEMORANDUM OF POINTS AND AUTHORITIES
BOTH OF PLAINTIFFS’ MOTIONS SHOULD BE DENIED AT THE OUTSET BECAUSE PLAINTIFFS HAVE ENTIRELY FAILED TO FILE THEIR SUPPORTING MEMORANDA OR OTHER DOCUMENTATION WITHIN THE REQUIRED TIME LIMITS

As mentioned in Defendant’s prior filing, California Code of Civil Procedure, Section 629, requires that the entire Motion for Judgment Notwithstanding the Verdict (hereinafter, JNOV ) be filed at the same time as the Notice of Intent to Move for a New Trial. Other than the brief reference to a JNOV in the Notice, as cited above, no supporting documentation was presented for such a motion. Based upon that failure alone, the Motion for JNOV should be denied.

Now, Plaintiffs have similarly failed to comply with applicable time limits in which to file supporting documents for their Motion for New 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, 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.)

Defendant Medical Center Foundation Hospitals, Inc.’s Opposition to Plaintiff’s Motions in Limine
GENERAL OBJECTIONS

Defendants object to the format of Plaintiffs motions to the extent that they fail to comply with any relevant requirements indicated in the Evidence Code, Code of Civil Procedure and the Rules of Court.

OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NO. 2 AND NO. 21 REGARDING COLLATERAL SOURCE BENEFITS
Introduction

Plaintiff seeks to exclude at trial all reference to the fact that any death benefit life insurance, Department of Veterans’ Affairs benefits, or other benefits were paid (or will be paid in the future) to Plaintiff. (Plaintiff’s Motion in Limine No. 2.) Plaintiff also seeks to exclude at trial all references regarding whether David Hill or Stella Hill, or both, received any compensation, insurance payment, or benefit from a collateral source as to the payment of medical, hospital, health care provider expenses. (Plaintiffs Motion in Limine No. 21.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A governing principle under MICRA is to disallow plaintiff from recovering amounts for medical expenses in excess of the amount paid or incurred. The reason for the collateral source rule is that such evidence gives the jury a more complete picture of the extent of damages and reimbursement already provided to the plaintiff.

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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.)

Defendant John Lee, M.D.’s Opposition to Motion for New Trial (Supplemental); Memorandum of Points and Authorities in Support Thereof
SUPPLEMENTAL INTRODUCTION

Counsel for Plaintiffs served his Notice of Intention to Move for New Trial, which included reference to “The motion for judgment notwithstanding the verdict,” but which included no Memorandum of Points and Authorities, and no citations whatsoever to any testimony from the trial.

Because of the rapidly approaching March date for hearing on Plaintiffs’ motions for JNOV and new trial, counsel for Defendant filed an opposition to both motions, based on information available at that time and arguments by Plaintiffs suggested in the Notice of Motion. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

Mr. Lee alleges that he saw thick meconium, decreased fetal heart rate, and his son born lifeless. As a layperson, he could not have known at the time that the injury was caused by the medical treatment being rendered. For a layperson, seeing thick meconium, decreased fetal heart rate, and a child born “lifeless” does not amount to the layperson’s contemporaneous awareness of the cause of the injury. The key element missing in this case as set forth by the Court in the Thing case is that the plaintiff “is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim.” Mr. Lee was present and he witnessed some events, but he has alleged no facts by which he could have been aware at the time that any conduct on the part of the defendants was causing injury to the child.

Mr. Lee witnessed various symptoms, and he may have even witnessed the injury-producing event, but he did not know, at least based on what is alleged, that he knew at the time that what he was witnessing was conduct on the part of Dr. White that was causing injury to his son. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The issue ultimately comes down to whether the father could have known that the child was being injured by conduct on the part of Dr. White, and not merely suspected that the child was being injured. Like Mr. Lee, both fathers in the Justus case suspected that their children were being injured during the delivery, but they did not know that they were being injured.

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

The definitive criteria in guidance of the trial court’s determination of the qualifications of an expert witness are recognized in Sinz v. Owens, supra, 33 Cal.2d 749, at page 753, 205 P.2d at page 5, to rest primarily on “occupational experience,” as stated: The proof of that standard (the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances) is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wigmore has classified as “occupational experience,” the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood. 2 Wigmore on Evidence 3d Ed., § 556, p. 635.

He must have had basic educational and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the defendant charged with malpractice that is of controlling importance in determining competency of the expert to testify to the degree of care against which the treatment given is to be measured.” (Emphasis added.) Pearce v. Linde (1952) 113 Cal.App.2d 627, 630-631. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There seems little reasonable basis for Defendant Smith’s position that he intends to elicit expert opinion testimony from Dr. Lee clearly concerning plastic surgery or nursing.

3) The Law of the Case is that Experts May Not Testify to any Opinions they did not Testify to at their Depositions

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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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

The complaint alleges that the father witnessed “thick meconium” during the labor and that he knew the meconium was impeding his son’s breathing … (Paragraph 44.) However, the complaint is silent as to how the father knew the significance or the effect of meconium at the time. It is not alleged that the father is a health care provider or has any background by which he would know that witnessing thick meconium would cause a lack of oxygen to the child’s brain. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The plaintiff alleges that he witnesses his son’s heart rate decrease. (Paragraph 45.) However, as noted above, the father in the Justus case witnessed “the diminution of the fetal heart tones,” but even that did not give rise to the NIED cause of action. Id. at 584.

The plaintiff also alleges that he witnessed his son to be “lifeless and in severe distress” (paragraph 45), but that is no different that the father in Justus who aw the manipulation of the fetus with forceps and by hand, and the emergency procedures performed on his wife in connection with the attempted Cesarian section. Id. at 584.

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

The standard of care in a medical malpractice case requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412, 175 Cal.Rptr. 365.)

It is also established that a nurse’s conduct must not be measured by the standard of care required of a physician or surgeon, but by that of other nurses in the same or similar locality and under similar circumstances. (See Fein v. Permanente Medical Group (1985) 38 CalJd 137, 150-151, 211 Cal.Rptr. 368, 695 P.2d 665; Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 341, 160 Cal.Rptr. 246.) Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A medical expert is not qualified as a witness unless it is shown that he is familiar with the standards required of physicians under similar circumstances. Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 8 A.L.R.2d 757; Moore v. Belt, 34 Cal.2d 525, 532, 212 P.2d 509.

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

In the present case, the standard of care for the specialty fields of plastic surgeons and nursing, as well as whether Dr. Goldberg and the nursing staff complied with same, are matters exclusively for the province of expert testimony (unless the doctrine of res ipsa loquitur applies).

A physician’s standard of care is the key issue in a malpractice action and can only be proved by expert testimony unless the circumstances are such that the required conduct is within the layperson’s common knowledge. (Landeros v. Flood (1976) 17 Cal.3d 399, 410, 131 Cal.Rptr. 69, 551 P.2d 389; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 CaUth 992, 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The common knowledge exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 CaUth at p. 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142, fn. omitted.) Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800-801.

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

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

California Evidence Code section 720 further defines the necessary foundational requirement before a witness will be allowed to testify as an expert in a particular area:

(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

(b) A witness’ special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony. (Calif. Evid. Code section 720.)

As discussed in greater detail below, there can be no doubt that Dr. Lee is not a qualified expert in plastic surgery or nursing. He has no special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Clearly, if Plaintiffs were proposing that Dr. Lee should be permitted to testify regarding the standard of care for plastic surgeons and nurses, and whether this was complied with in the present case, both Defendant Smith and the Court would not allow it. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.

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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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(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.)

In considering whether res ipsa loquitur applies, it is not for the trial court to ascertain whether defendant’s negligence is the more likely explanation of the accident; it should merely determine whether plaintiff has produced sufficient substantial evidence to permit a jury to draw such an inference, and where reasonable men might differ on the balance of probabilities it should be left to the jury. Ghema v. Ford Motor Co. (1966) 246 Cal. App. 2d 639, 55 Cal. Rptr. 94.

Where – as here – the evidence conflicts or is subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the res ipsa loquitur rule are present. Robledo v. Los Angeles (1967) 252 Cal. App. 2d 285,60 Cal. Rptr. 328. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In considering the applicability of res ipsa loquitur, it is not for the trial court to ascertain whether a defendant’s negligence is the more likely explanation of the accident; the court merely determines whether the plaintiff has produced sufficient substantial evidence to permit a jury to draw such an inference; and, where reasonable men may differ as to the balance of the probabilities, the trial judge must leave that question to the jury. Albers v. Greyhound Corp. (1970) 4 Cal. App. 3d 463, 84 Cal. Rptr. 846.

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