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 medical malpractice/personal injury case and its proceedings.)

In the present case, Defendant Black’s insertion of Article 2 into the arbitration agreement contradicts and undercuts the clear understanding of the consequences that patients were intended to obtain from subdivisions (a) and (c) of Section 1295. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

With regard to Section 1295 subdivision (a), both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. Yet Article 2 provides for the Filing by Physician of any action in Court to collect any fee from patient…. The addition of this Article 2 language to the agreement by Defendant Black undermines the communication of significant contractual consequences to the patient. The language muddles the clear understanding sought by the legislature with C.C.P. Section 1295, and is only inserted to provide a loophole out of arbitration for healthcare providers like Defendant Black.

With regard to subdivision(c), the arbitration agreement governs all subsequent open-book account transactions for medical services for which the contract was signed. Yet Article 2, again, undermines the communication of the significant contractual consequences to the patient. Are all subsequent open-book account transactions for medical services for which the contract was signed governed by the arbitration clause, or is there an exception for claims brought by Defendant Black to collect fees from the patient?

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.)

ARGUMENT
PLAINTIFFS SHOULD NOT BE COMPELLED TO ARBITRATE THEIR CLAIMS AGAINST DR. Black BECAUSE THE PHYSICIAN-PATIENT ARBITRATION AGREEMENT FAILS TO CONFORM WITH C.C.P. SECTION 1295. FURTHER, THE AGREEMENT IS A CONTRACT OF ADHESION AND IS UNCONSCIONABLE
Failure to Conform with C.C.P. Section 1295

California Code of Civil Procedure Section 1295 provides in pertinent part:

(a) Any contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider shall have such provision as the first article of the contract and shall be expressed in the following language: It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(b) Immediately before the signature line provided for the individual contracting for the medical services must appear the following 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 1 OF THIS CONTRACT.

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 Physician-Patient Arbitration Agreement prepared by Defendant Black was signed by Ms. Hall in Italian, her primary language, on February 27, 2006, almost two-and-a-half years before the medical treatment in question.

Defendant Black attempted to comply with California Code of Civil Procedure 1295 (a), (b) and (c) to make the agreement enforceable as a Section 1295 medical malpractice arbitration agreement. However this effort was undercut by Defendant Black’s insertion of Article 2 into the arbitration agreement.

Article 2 of the arbitration agreement begins in bold type stating: All Claims Must Be Arbitrated. The clause goes on to state that “… this agreement shall cover all claims or controversies whether in tort, contract, or otherwise….” For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The second clause of Article 2 states that:

Filing by Physician of any action in Court to collect any fee from patient shall not waive the right to compel arbitration of any malpractice claim. However, following the assertion of any claim against Physician, any fee dispute, whether or not the subject of any existing Court action, shall be resolved by arbitration.
As set forth below, Plaintiffs contend that the insertion of Article 2 undermines and invalidates the application of C.C.P. 1295 to the arbitration agreement.

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.)

Defendant Universal Medical Center (“Defendant”) moves for a mental examination of plaintiff Randall Smith ( Plaintiff) by David Black, M.D., a psychiatrist, at his office located in San Jose, California.

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.

FACTUAL BACKGROUND

This is a medical negligence case. Plaintiff Randall Smith claims to have developed complex regional pain syndrome ( CRPS ), also known as reflex sympathetic dystrophy ( RSD ), from an IV needle insertion he received prior to undergoing an endoscopy on December 7, 2006, at General Hospital, part of defendant Universal Medical Center. Plaintiff claims that his CRPS/RSD went undiagnosed until January 24, 2007. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff has sought, and alleges that he will be required to seek, psychological services because of his alleged CRPS/RSD. In early January 2007, he sought psychiatric treatment at ABC Psychiatric Facility, because he experienced suicidal and homicidal thoughts related to his pain after the above IV placement. Both Plaintiff’s counsel, and his medical records, disclose that in September or October, 2008, Plaintiff sought inpatient psychiatric care, apparently because Plaintiff attempted suicide.

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.

PLEASE TAKE NOTICE PLEASE TAKE NOTICE that Defendants, Paul Davis, D.C. and Universal Chiropractic, Inc. (hereinafter “Defendants”), hereby move this Court in limine before jury selection or the trial’s commencement for an order precluding Plaintiff’s expert, Steven Strong, M.D., from providing any standard of care testimony against Defendants on the ground that Dr. Strong is not qualified to render such opinions. This motion is based upon the accompanying Memorandum of Points and Authorities, the records and files of this action, and such further evidence or argument as may be submitted before or at the time of the hearing of this matter. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Plaintiff, Sylvia White (hereinafter “Plaintiff”), sought chiropractic care and treatment with Defendant, Paul Davis, D.C., at his facility, Universal Chiropractic, Inc., on an intermittent basis between July 2004 and October 2006. Plaintiff filed an action for professional malpractice against the defendants based on professional malpractice and intentional infliction of emotional distress related to the underlying alleged malpractice.

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.)

SUMMARY JUDGMENT IS APPROPRIATE WHEN THERE IS NO TRIABLE ISSUE AS TO ANY MATERIAL FACT

California Code of Civil Procedure Section 437(c)(f) provides authority for the grant of summary judgment if a party contends the cause of action (for medical malpractice) has no merit.

The entry of summary judgment is mandatory where the documents disclose no triable issue of material fact. Kraslev v. Superior Court (1980) 101 Cal.App.3d 425, 432. A defendant is entitled to summary judgment where the record establishes, as a matter of law that a cause of action asserted against him cannot prevail. County of Los Angeles v. Security Insurance Comparny of Hartford (1975) 52 Cal.App.3d 808, 816.

A defendant has met his or her 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. (Code Civ. Proc. §437c(o)(2)) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exist is to that cause of action. Munro v. Regents of University of California (1989) 215 Cal.App.3d 977. In Fraser Dame, etc. v. Bacarro Blum, etc. (1977) 70 Cal.App.3d 331, 338, the court stated:

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.)

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant Ken Black, M.D.’s Petition to Compel Binding Arbitration and to Dismiss Defendant Ken Black, M.D., Without Prejudice
INTRODUCTION

Defendant Ken Black, M.D. seeks to compel binding arbitration against plaintiffs based on a Physician-Patient Arbitration Agreement signed by plaintiff Heidi Hall. Because Defendant Black’s arbitration agreement fails to comply with the requirements of Code of Civil Procedure Section 1295, Defendant Black’s Petition to Compel Arbitration should be denied. Further, because the agreement fails to comply with the requirements of Code of Civil Procedure Section 1295, the agreement is also subject to challenge on the grounds of being a contract of adhesion and unconscionable. For the reasons set forth below, Plaintiffs respectfully request that the Court deny Defendant Black’s petition to compel arbitration. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

BACKGROUND
This medical negligence action brought by the Plaintiffs arises from negligence which occurred during Ms. Hall’s labor and obstetrical delivery at Defendant National Hospital in June of 2008. The delivering doctor was Defendant Ken Black, M.D. Plaintiff Heidi Hall’s baby died during delivery and Ms. Hall suffered serious, life threatening injuries from delay of diagnosis of a ruptured uterus.

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.)

Approximately one year after his discharge, on or about August 31, 2007, plaintiff filed the instant lawsuit for medical negligence and failure to inform against several defendant, including Dr. Lee. Specifically he claims that Dr. Lee assumed responsibility to locate and repair injuries caused by Dr. Green during the laparoscopic cholecystectomy on June 16, 2006, but failed to do so necessitating cardiac resuscitation and subsequent exploratory laparatomy and bowel repair surgeries.

The expert testimony of Dr. White refutes the suggestions that Dr. Lee’s treatment of plaintiff fell below the standard of care or that it caused any alleged injuries. Nevertheless, plaintiff has initiated this lawsuit against Dr. Lee, claiming damages according to proof at trial. In order to prevail on his claim for damages against Dr. Lee, he must demonstrate that the care and treatment rendered to him by Dr. Lee fell shy of the applicable standard of care.

Defendant Dr. Lee brings this motion on the following grounds:

1) The cause of action for medical negligence/failure to provide informed c onsent against this moving defendant lacks merit because the care and treatment rendered to Sean Black by vascular surgeon Dr. Lee was within the standard of care at all times.

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.)

On June 28, 2006, Dr. Stuart placed a central venous catheter and an arterial catheter in Plaintiffs right groin due to hypotension. A bedside exploratory laparatomy was performed in the ICU by Dr. Green, with the assistance of Dr. Smith. During the procedure a major hemoperitoneum with fresh and active clot, as well as generalized oozing, was observed. Plaintiff was actively bleeding so he was transported to the operating room for another exploratory laparatomy by Green, with the assistance of Dr. Smith and Dr. Lee. A posterior laceration of the bifurcation of the abdominal aorta and an anterior wall laceration directly beneath the first wound of the first common iliac vein were four d. Both lacerations were repaired with sutures. The abdomen was again left open after this procedure.

On June 30, 2006, plaintiff underwent another exploratory laparotomy and washout at the hands of Dr. Green. There was no evidence of infectious collections or intra-loo abscesses and all bowel and viscera were completely viable. On July 3,2006, Dr. Green closed plaintiff’s abdomen. Thereafter plaintiff’s recovery was pretty uneventful until the time of his discharge on July 21,2006.

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.)

The Burgess court further remarked: We trust the ability of the trial courts to stringently enforce the limitations on damages in cases of this type through appropriate evidentiary rulings and jury instructions. (2 Cal.4th 1064 at 1085.) Thus, the Court expressed its faith in California’s trial courts to enforce MICRA. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In short, assuming a plaintiff’s verdict in this action, he is entitled to a maximum recovery of no more than $250, 000 in general damages. (Civil Code, § 3333.2, subd.(b).) Assuming liability is found, each culpable defendant will be severally liable for h[is] allocated share of [plaintiff’s] noneconomic damages. (Marina Emergency Medical Group v. Superior Court (2000)84 Cal.App.4th 435, 441.) In this respect, there is no medical malpractice exception to Proposition 51 [Civil Code section 1431.2 (several liability of successive tortfeasors for non-economic damages)]. (Ibid.)

It is anticipated that plaintiff will raise the primary rights theory to support his claim of entitlement to $500,000 in general damages. An explication of that rule is found in Landerros v. Flood (1976) 17 Cal.3d 399. There, a minor sued a physician and hospital for malpractice, consisting of the failure to properly diacnose battered child syndrome and the violation of defendants’ statutory duty to report that diagnosis to the proper authorities.

Continue Reading ›