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.

(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.

ARGUMENT

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

The State of California has a strong public policy favoring arbitration over litigation as a speedy and relatively inexpensive means of dispute resolution which eases court congestion. (Pietrelli v. Peacock, (1993) Cal.App.4th 943, 946.) A court should use every effort to enforce arbitration agreements because arbitration is a highly favored forum for settling disputes. (Pacific Inv. Co. v. Townsend, (1976) 58 Cal.App.3d 1, 9.) A written arbitration agreement is valid and enforceable and irrevocable as consistent with standard principles. Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699. Once a document is signed, a proper arbitration agreement governs all subsequent open book account transactions for medical services unless rescinded by written notice within thirty days of signature. (Code of Civ. Proc. § 295(c).)

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 later case of Hurlbut has affirmed that lost years are not subject to periodic payments. Later authority has affirmed that the lost years award is an exception to the rule of periodic payments under Civil Procedure section 667.7 (Hurlbut v. Sonora Community Hospital (1989) 207 Cal. App.3d 388.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

California has now rejected the defense argument of saved costs of necessities. The “lost years” should not be reduced by the “saved cost of necessities.” Defense counsel may argue that the “lost years” award should be reduced by the amount saved because of a reduced life expectancy. The First District has now held the majority view is that no deduction is made for the injured part’s expected living expenses during the lost years. (Overly, supra, 74 Cal.App.4th at p. 175.) No court has endorsed the approach that would deny lost years damages because it is the widespread practice to award the plaintiff full compensation for his lost years damages (Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages (1962) 50 Cal.L.Rev. 598). (See Part 3 of 8.)

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.

PLAINTIFFS’ TRIAL BRIEF ON “LOST YEARS” AND “SAVED COST OF NECESSITIES”
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

The medical malpractice case at issue involves severe and permanent neurological injuries suffered by minor Owen Smith, at or around the time of his birth on February 21, 2000.

There will be expert testimony that the minor will never be employed. Because the minor will not be able to work, she is entitled to damages described as lost years – i.e. the time by which a plaintiff’s work life expectancy is shortened because of the injury. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The minor is entitled to a “lost years” jury instruction. The Supreme Court specifically addressed the issue of “lost years”; where a plaintiff’s work life expectancy is shortened, this loss is compensable (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137). And in August 1999, the First District reaffirmed the “lost years” damage award: Fein expressly recognized a right to recover damages for the loss of prospective earnings during the period of time by which the plaintiff’s life expectancy has been diminished. (Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 172.)

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.

The competency of a witness to testify is a preliminary fact to be determined by the Court, not the trier of fact. Evidence Code sections 403, 405; Cooper v. Bd. Med. Exam (1975) 49 Cal.App.3d 931, 945. Courts have the obligation to contain expert testimony within the area of professional expertise, and to require adequate foundation for the opinion. Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523 [reversible error to admit foundationally defective expert testimony]. Upon challenge, an expert witness’s qualifications must be established before that witness is permitted to testify. Evidence Code section 720(a). The burden is on the proponent of the expert testimony to demonstrate the witness’s qualifications to testify. Evidence Code section 720. The incompetency of a witness to testify to certain matters renders that witness’s testimony inadmissible. Evidence Code section 720. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Case law establishes that a medical doctor is not automatically qualified to render expert opinions in all areas of medicine.

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.

Defendants’ Memorandum of Points and Authorities in Support of Petition to Compel Binding Arbitration and to Dismiss Defendant David Lee, M.D., without Prejudice
BACKGROUND

This medical malpractice action arises from a fetal demise. On May 27, 2008, plaintiffs Kim Hernandez and William Hernandez (collectively referred to as Plaintiffs ) filed a complaint against defendants National Hospital and Dr. David Lee (“Dr. Lee”) alleging a cause of action for medical malpractice. Mr. Hernandez alleged a cause of action for a loss of consortium. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

On February 27, 2005, Mrs. Hernandez signed a Physician-Patient Arbitration Agreement. (Color copy of the Physician-Patient Arbitration Agreement is attached as Exhibit A ; a courtesy copy of the Physician-Patient Arbitration Agreement, in English, is attached as Exhibit B. ) Mrs. Hernandez spoke Spanish so the Physician-Patient Arbitration Agreement Mrs. Hernandez signed was written in Spanish. The Physician-Patient Arbitration Agreement stated that all disputes as to medical malpractice will be determined by submission to arbitration and not by a lawsuit.

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/personal injury 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. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

While there is no general rule for what qualifies an individual under section 720(a) to render an expert opinion in a medical malpractice case, the Supreme Court explained that the expert must have a general foundation for his testimony, basic education, training, occupational experience as well as practical knowledge of what is customarily done by the health care provider under similar circumstances:
The proof of that standard 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.

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/personal injury 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.

As the above facts show, Plaintiff is currently suffering from ongoing psychological problems which he traces to his CRPS/RSD injury. These psychological problems are such that he has attempted suicide twice, has received several weeks of inpatient psychiatric care, and has received ongoing outpatient psychiatric care and mental health counseling. These psychological problems are also the reason Plaintiff has given for being unable to complete his deposition in this case. Defendant respectfully submits that Mr. Smith’s mental health is undeniably at issue in this case and that good cause exists for a mental examination. This examination would be performed by a licensed psychiatrist, David Black, M.D., in San Jose, California.

CONCLUSION
For the reasons set forth above, Defendant requests an order requiring Plaintiff Randall Smith to undergo a mental examination by David Black, M.D., a psychiatrist, at Dr. Black’s office located in San Jose, CA.

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 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/personal injury case and its proceedings.)

Expert Review of the Instant Case Establishes that the Conduct of Dr. Lee Did Not Cause Plaintiff’s Alleged Injuries.

In a personal injury action, causation must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. Jones v. Ortho Pharmaceutical Company (1985) 163 Cal.App.3d 396, 402 02 (citations omitted); Dumas v. Conney (1991) 235 Cal.App.3d 1593, 1603. Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. Budd v. Nixon (1971) 6 Cal.3d 195,200. In Dumas, the court declined to establish a more lenient standard of causation in medical malpractice cases to account for the theory of lost chance:

Relaxing the causation requirement might correct a perceived unfairness to some plaintiff who could prove the possibility of the medical malpractice cause and injury but could not prove the probability of causation, but at the same time could create injustice. Health care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result.

Continue Reading ›

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

The illegal provisions in this Agreement also affect its scope because they speak to the manner in which disputes will be resolved before the arbitration is called for and not after the arbitration has taken place. Therefore, this agreement is also distinguishable from the one provision severed in the Saika and Benyon cases.

Therefore, the illegal provisions in this Agreement should not be severed because to do so would allow Defendant Black (and other hospitals) to continue to insert illegal provisions in his arbitration agreements if he knows that the worst that can happen is that the illegal provisions will simply be severed. Armendariz, supra, 24 Cal. 4th at 124, fn.13. The interests of justice will not be served by allowing severance of the illegal provisions of this agreement.

REQUEST FOR ORDER EXTENDING TIME FOR RESPONSE

Under C.C.P. Section 1290.6, the time for filing a response to petition for arbitration is 10 days after service of the petition. The Court can order an extension of time to file a response upon good cause shown. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Unfortunately, when the petition was received by mail by counsel for Plaintiffs, the response was calendared under C.C.P. Section 1005 (a)(13)(b.). Accordingly, Plaintiffs calendared the response to be filed 9 court days prior to the November hearing date.

Continue Reading ›

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

Here, the agreement contains two illegal provisions, the unlawful unilateral provision that gives Defendant Black the right to a jury trial to collect fees from his patients, and the unlawful cost splitting provision. These two provisions are central to the purpose of the contract, not collateral to it. Therefore, these provisions cannot be severed and the contract should not be enforced. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There are two reasons for severing or restricting illegal terms. The first is to prevent parties from gaining undeserved benefit or detriment. Second, the doctrine of severance attempts to conserve a contractual relationship if to do so would not be to condone an illegal scheme. The overarching inquiry is whether the interests of justice would be served by severance. Armendariz, supra, 24 Cal. 4th 124. Here, as in Armendariz, the Agreement has more than one defect indicating a systemic effort to impose arbitration as an inferior forum that works to serve the interest of Defendant Black and gives him an advantage. Armendariz, supra, 24 Cal. 4th 124.

Additionally, the court distinguishes Armendariz, where the arbitration agreement was deemed unenforceable, from Saika v. Gold (1996) 49 Cal. App. 4th 1074 and Benyon v. Garden Grove Medical Group (1980) 100 Cal. App. 3d 698, where in both cases one-sided provisions in the physician-patient arbitration agreement were severed.

Continue Reading ›