Articles Posted in Medical Malpractice

(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, or Sutter.

CALIFORNIA HAS NOW REJECTED THE “SAVED COST OF NECESSITIES” ARGUMENT; THE “LOST YEARS” AWARD SHOULD NOT BE REDUCED BY THE “SAVED COST OF NECESSITIES”

For years, the law on the “lost years” exception to periodic payments judgments is essentially controlled by two (2) California Cases, Fein and Hurlbut. As noted above, these cases failed to place any limitation or restrictions upon this exception, even though such issue was squarely before the court on both occasions. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Now in August 1999, the First District has ruled on the issue of saved costs of necessities. In Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, the defense argued that even if [Plaintiff] was entitled to damages for the loss of his future economic benefits [the ‘lost years’ damages], the future economic damage award should have been reduced to account for the [Plaintiffs’] personal consumption during the lost years. The defense “conceding that there is no California authority on point,” argued “policy.” (Id. at p. 174.)

Both the trial court and the Court of Appeal rejected the policy argument:

Continue Reading ›

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

Further, in the case Cottle v. the Superior Court of Ventura County (1992) 3 Cal.App.4th 1367, the Court of Appeal denied the plaintiff’s petition for a writ of mandate seeking review of the order of the trial court which required plaintiff to produce evidence establishing a prima facie claim for personal injury. Accordingly, the plaintiffs in Cottle were required to show that they could sustain a prima facie case against defendants prior to the start of trial. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

In this matter, Defendants contend that Plaintiff is unable to sustain her cause of action against Defendants because Plaintiff lacks the required standard of care expert to prove her case of professional negligence. Accordingly, should the Court be disinclined to grant Defendants’ motion to preclude standard of care testimony by Dr. Strong, Defendants respectfully request that a Cottle hearing or a 402 hearing be held to determine the qualification of Dr. Strong or Plaintiff’s ability to sustain her case against Defendants, prior to jury empaneling in this matter.

Continue Reading ›

(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, or Sutter.

Another way of putting the defense’s self consumption reduction would be to state the defense was asking a jury to speculate about an injured plaintiff’s prospective personal living expenses during the lost years period. (Id.) This the Court of Appeals refused to do. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

And the Court of Appeal had a second reason to reject the “self consumption” reduction: Second, and equally troubling, [Defendant] does not identify any case which applies a personal consumption or living expense deduction in this context. (Id. at p. 176.) In other words, the defense has no case authority. The defense argued such a deduction is made in wrongful death cases. But again, the Court of Appeal rejected the argument. The Court acknowledged that in wrongful death actions, an acceptable way to show how much money would have been available for the support of a decedent’s wife and children is to show how much money would have been earned during the remainder of his life, and to deduct from that amount his personal maintenance expense and the amount he would have spent on other things. (Id. at p. 176.)

However – – By contrast, in a personal injury action where lost years damages are recoverable, the measure of damages is not lost support but rather lost earnings during the period the plaintiff would have lived if not for the injury. (Fein. supra, 38 Cal.3d at p. 153. Speculating as to how the injured party may have spend those future earnings if not for defendant’s tortuous conduct is a very different exercise than permitting a wrongful death plaintiff to prove damages for lost support by accounting for his or her supporter’s other expenses. (Overly, supra, 74 Cal.App.4th at p. 176.)

Continue Reading ›

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

PLAINTIFFS SHOULD BE COMPELLED TO ARBITRATE ALL OF THEIR CLAIMS AGAINST DR. LEE BECAUSE THE FEBRUARY 27, 2005, PHYSICIAN-PATIENT ARBITRATION AGREEMENT GOVERNS ALL OF PLAINTIFFS’ CLAIMS AGAINST DR. LEE.

A physician-patient arbitration agreement in compliance with Code of Civil Procedure section 1295 binds the signatory patient, as well as certain non-signatories. In Bolanos v. Khalatian, (1991) 231 Cal.App.3d 1586, the Court of Appeal ruled on the issue of whether an arbitration agreement applies to disputes by non-signatories. The facts in the Bolanos case are similar to those in the present case. Bolanos was a medical malpractice action brought against an obstetrician. (Id. at 1588.) The patient signed a physician-patient arbitration agreement, which was written in Spanish, because the patient did not read English. (Id. at 1589.) The defendant obstetrician moved to compel arbitration, and the plaintiffs challenged the submission of the matter to arbitration, in part, because the patient’s husband did not sign the physician-patient arbitration agreement. (Id. at 1591.)

Continue Reading ›

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

IN THE ALTERNATIVE, THE COURT SHOULD CONDUCT A COTTLE HEARING OR SECTION 402 HEARING TO DETERMINE WHETHER OR NOT PLAINTIFF CAN MAINTAIN THEIR PRIMA FACIE CASE AGAINST DEFENDANT PRIOR TO JURY SELECTION.

Under California Evidence Code section 402:

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.
(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury…

(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

CAL.EVID.CODE section 402 (emphasis added). Further, California Evidence Code section 400 states in pertinent part:

Continue Reading ›

(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, or Sutter.

THE SUPREME COURT REFUSED TO APPLY PERIODIC PAYMENTS BASED ON THE CONCEPT OF “LOST YEARS”
The Fein Court found that the periodic payments of Code of Civil Procedure section 667.7 applied to medical negligence actions and found the application of periodic payments to be mandatory. However, the Supreme Court refused to apply periodic payments to lost years. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Although in general lost earnings are a type of future damage particularly suitable to a periodic payment judgment, this case presents a somewhat unusual situation because the damages awarded are solely attributable to the earnings of plaintiff’s lost years. If the trial court had ordered such damages paid periodically over the time period when the loss was expected to be incurred, the damages would have been paid in their entirety after plaintiff’s expected death, and thus-if the life expectancy predictions were accurate-plaintiff would not have received any of this element of damages. (Fein v. Permanente Medical Group, supra, 38 Cal.3d at 156.)

Therefore, it is clear from the language of Fein that the purpose of “lost years” damages is make sure that the plaintiff receives all of their lost future earnings in a lump sum during their lifetime. (Accord Schiembeck v. Haight (1992) 869 Cal.App.4th 869, 778.)

Continue Reading ›

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

In addition to the above language, an arbitration agreement must include immediately before the signature line provided for the individual contracting for the medical services the following language in at least 10-point bold red type:

NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE I OF THIS CONTRACT. (Code of Civil Proc. §1295(b).) For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Here, the February 27, 2005, Physician-Patient Arbitration Agreement complies with the requirements of Code of Civil Procedure section 1295(a) and (b). The language proscribed by subsection (a), of Code of Civil Procedure section 1295, translated into Spanish, is included in Articulo 1 (Article 1) of the Physician-Patient Arbitration Agreement Mrs. Hernandez signed on February 27, 2005.

Continue Reading ›

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

In this matter, Plaintiff is presenting expert, Steven Strong, M.D,. as her medical malpractice standard of care expert. Dr. Strong, however, is clearly unqualified to render standard of care opinions as to the conduct of Defendants in this matter. Specifically, in his deposition testimony, Dr. Strong demonstrated that he has absolutely no knowledge of how chiropractors, such as Dr. Davis, conduct themselves on a day to day basis, nor does he have any training in chiropractics or have contact with chiropractors, to have any familiarity of the standard of care that governs that field of medicine. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In deposition, Dr. Strong testified on June 8, 2008 and his second session on August 6, 2008, that he does not read any chiropractic journals. Further, Dr. Strong was unable to name any chiropractor that he has referred his patients to, which was also minimal. Moreover, he is not a member of any chiropractic organization. Dr. Strong has never practiced as a chiropractor. Dr. Strong has never gone to chiropractic school. He has never been taught any chiropractic techniques used to reduce subluxations. He has never used any chiropractic techniques to treat subluxations. He is not aware of any of the names of techniques used by chiropractors to correct subluxations.

Continue Reading ›

(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, or Sutter.

THE MINOR PLAINTIFF IS ENTITLED TO A “LOST YEARS” JURY INSTRUCTION

The California Supreme Court specifically allows for a lost years instruction:

Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury. … Although, to our knowledge, the lost years issue has not been previously decided in California, recovery of such damages is consistent with the general rule permitting an award based on the loss of future earnings a plaintiff is likely to suffer because of inability to work for as long a period of time in the future as he could have done had not sustained the accident. (Emphasis in original and added.) (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153.)

Consequently, the minor plaintiff will be asking the court to issue an instruction on lost years damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

And in August 1999, the First District discussed the latest defense attack on the lost years damage award in Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 175. In Overly, Plaintiff sued for personal injury for exposure to asbestos – and Plaintiff claimed the loss of future economic benefits that [Plaintiff] would have earned during the period by which his life expectancy was shortened, i.e., ‘lost years’ damages, in the form of pension, social security and household services’ benefits. (Id. at p. 171.)

Continue Reading ›

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

Whether a witness qualifies as an expert in a given field, and thus whether that witness’s testimony as an expert will be admitted into evidence at trial, are fundamental issues for this Court to decide. The Court’s exercise of its discretion to allow or exclude expert testimony will not be disturbed on appeal absent manifest abuse of discretion. Huffman v. Lindquist (1985) 37 Cal.2d 465, 476-478; Putensen v. Clay, supra, 12 Cal.App.3d at 1081. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Further, in Mann v. Cracchiolo (1985) 38 Cal.3d 18, the court emphasized the need for the expert to have a connection to the “field of the defendant.” In the Mann case, the California Supreme Court’s ruling reflects a careful analysis of the proposed expert witness’s qualifications and cites specific evidence of the expert’s qualifications to render expert testimony in the fields of medical malpractice at issue in that litigation. Id. At 38-40. Having analyzed the proposed expert witness’s qualifications, the Court concluded:

Continue Reading ›