Articles Posted in Wrongful Death

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.)

Under well established discovery rules, when it appears reasonably certain that the consultant-expert will give his or her professional opinion as a witness on a material matter in dispute, the attorney’s work product privilege terminates and the expert’s knowledge and opinions are subject to discovery and disclosure. (County of Los Angeles v. Superior Court (1990) 222 Cal. App. 3d 647, 654-655) In other words:

Once it appears reasonably certain that the consultant-expert is to become a witness in the action, the attorney’s work-product privilege terminates and the expert’s knowledge and opinions are subject to discovery and disclosure. (Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 202, citing, San Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d 194.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, in this case, since plaintiff’s expert has been designated, the work product privilege can no longer be claimed. That privilege has effectively been terminated. This rule of termination is one of fairness.

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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 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.

The Work Product Privilege Terminates And The Expert’s Knowledge And Opinions Are Subject To Discovery and Disclosure Upon Expert Designation For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It has long been recognized that the work of an expert-consultant is protected by the attorney’s work product privilege. (Williamson v. Superior Court (1978) 21 Cal.3d 829, 834; Mack v. Superior Court (1968) 259 Cal.App.2d 7, 11) It is obvious why an expert’s work production is shielded under the broad scope of the attorney’s work-product privilege. The expert is employed by counsel to form an opinion which he may later present as a witness in court. He is also engaged as an adviser on trial preparation and tactics for the case and in this latter capacity serves as a professional consultant to counsel on the technical and forensic aspects of his specialty.

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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 wrongful death case and its proceedings.)

PLAINTIFF MUST PRESENT AFFIDAVITS OR TESTIMONY OF COMPETENT EXPERTS TO AVOID THIS COURT’S GRANTING OF THE MOTION

In a medical negligence action, a plaintiff must present expert testimony to establish the necessary elements of the case – (1) the defendant did something in his care and treatment that fell below the standard of care and (2) the defendant’s negligent conduct caused the plaintiff his injuries. Jones, supra, 163 Cal. App. 3d at 402. In other words, a plaintiff’s testimony and/or Complaint are insufficient. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, in this case, unless Plaintiffs present opposing evidence from a competent expert who has rendered an opinion that the care and treatment rendered to Mr. Smith by Memorial Medical Center employees caused or contributed to Ms. Smith’s death, Plaintiff simply cannot prevail in this lawsuit. See Ochoa v. Pacific Gas & Elec. Co. (1998) 61 Cal.App.4th 1480, 1487.

THE COURT’S POWER AND ROLE
Calfornia Code of Civil Procedure §437c provides the Court with authority to grant this Motion. California Code of Civil Procedure § 437c(a) provides that a defendant may move for summary judgment if it is contended that an action has no merit. A motion for summary judgment shall be granted if all of the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See California Code of Civil Procedure § 437c(c).

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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 wrongful death case and its proceedings.)

In the present case, co-defendant, Dr. White was on staff at Memorial Medical Center. However, he was not an employee of Memorial Medical Center at any time relevant to this action. He was an independent contractor and, therefore, defendant Memorial Medical Center cannot be vicariously liable for his actions. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Additionally, defendant Memorial Medical Center cannot be found liable for the actions of an independent physician, Dr. White, on a theory of ostensible agency. Civil Code § 2300 provides: [a]n agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. The statute requires proof of three elements (1) that the person dealing with the agent must do so with a belief in the agent’s authority and this belief must be a reasonable one; (2) such belief must be generated by some act of neglect of the principle sought to be charged and (3) the third person relying on the agent’s apparent authority must not be guilty of negligence. See Stanhop v. L.A. College of Chiropractic (1942) 54 Cal. App. 2d 141, 123 P.2d 705.

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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 wrongful death case and its proceedings.)

Additionally, in its investigation, the Department of Public Health reviewed and analyzed infection rates at Memorial Medical Center’s NICU, as well as the entire facility and compared it to infection rates of Pseudomonas infections at other hospitals in the community. Memorial Medical Center’s infection rates in both the NICU and the general hospital were lower than the other hospitals in the community. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

B. Memorial Medical Center is not liable for the actions of physician co-defendant, Dr. White, as a matter of law, in that he is an independent contractor and not an employee or agent of the hospital.

Memorial Medical Center is not liable for the actions or inactions of Dr. Phillip White.

It is well-established law that a hospital is not licensed to practice medicine and, therefore, cannot be held responsible for overseeing the practice of medicine by licensed physicians on its staff. People v. Pacific Health Corporation (1938) 12 Cal.2d 156; Pacific Employers Insurance Company v. Carpenter (1935) 10 Cal.App.2d 592. The Court in Ware v. Culp (1937) 24 Cal.App.2d 22 determined that a hospital is not ordinarily liable for the malpractice committed by physicians on its medical staff. The Court stated:

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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 wrongful death case and its proceedings.)

In the instant case, Plaintiffs cannot demonstrate with sufficient medical probability that the Defendant’s conduct caused or contributed to Ms. Smith’s death. The opinion provided in the attached Declaration of Stanley Choo, M.D., affirmatively establishes that the care and treatment provided by Defendant Memorial Medical Center employees did not cause or contribute to Ms. Smith’s death.

The Declaration of Dr. Choo states that based on his review of the pertinent records and his experience, training, and education, to a reasonable degree of medical probability, nothing Memorial Medical Center nurses or employees did or failed to do caused or contributed to the death of Ms. Smith. Ms. Smith died of surgical complications at University Memorial Hospital and not as the result of any act or omission on the part of Memorial Medical Center employees or personnel. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Ms. Smith had a postoperative infection of her CRT-D system. However, such an infection is a known risk of indicated generator replacements and cen occur in the absence of negligence. Additionally, in November 2008, the Department of Health conducted an intensive investigation into Pseudomonas infections at Memorial Medical Center based on a slightly increased rate of Pseudomonas infections which occurred in the Neonatal Intensive Care Unit (the NICU).

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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 wrongful death case and its proceedings.)

In the instant case, plaintiffs cannot establish the causation element of a negligence claim since plaintiffs cannot show any act or omission on the part of Memorial Medical Center, its employees or agents, caused or contributed to plaintiff’s alleged injuries or damages.

A. Summary judgment should be granted since no act or omission on the part of Memorial Medical Center employees caused or contributed to plaintiff’s alleged injury or damage:

A cause of action for negligence requires evidence of the legal duty to use due care, a breach of the legal duty, and that the breach is a proximate cause of the resulting injury. 6 Witkin, Summary of California Law, Torts, Section 732 (9th Ed. 1988). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

An essential element of a negligence cause of action is that defendant’s negligence was a substantial factor in causing plaintiff’s harm. CACI400 (2009). A cause “only becomes probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was the result of its action. Ibid. See also Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403.

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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 wrongful death case and its proceedings.)

DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW AS PLAINTIFFS’ CLAIM HAS NO MERIT

Summary judgment is proper if there is no merit to plaintiffs cause of action. California Code of Civil Procedure §437c(a). A cause of action has no merit if one or more of the elements of the cause of action cannot be established. California Code of Civil Procedure §437c(o)(1). The essential elements to establish a claim of medical negligence are (1) a legal duty to use due care; (2) a breach of such legal duty; and (3) the breach as the proximate or legal cause of the resulting injury. 5 Witkin, Summary of California Law (9th Ed.), Torts § 732, p. 60. A defendant is held liable for a plaintiffs’ injuries only if plaintiff establishes the above three elements. Id. (emphasis added). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant is entitled to summary judgment if it can disprove at least one essential element of plaintiff’s claim for negligence, as provided by California Code of Civil Procedure § 437c(o)(2):
“A defendant or cross-defendant has met his 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, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”

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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 wrongful death case and its proceedings.)

SUMMARY JUDGMENT MUST BE GRANTED AS A MATTER OF LAW WHEN NO TRIABLE ISSUE OF MATERIAL FACT EXISTS

A motion for summary judgment must be granted if there is no triable issue as to any material fact. California Code of Civil Procedure §437c(c). The court has no discretion to refuse summary judgment where the evidence before the court discloses no triable issue as to any material fact; the moving party is entitled to judgment as a matter of law. Drasley v. Superior Court (1980) 101 Cal.App.3d 425, 427; see also Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759. Summary judgment is an efficient and expeditious method of disposing of unmeritorious cases. Judge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70 (holding that [i]t is in the public interest, including the court’s interest in the efficient and economical administration of justice and the parties’ interest in the prompt and affordable resolution of unmeritorious cases, to expeditiously rid the judicial system of a case in which a party is entitled to judgment as a matter of law, without requiring protracted litigation and a trial on the matter ).

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

The proper case for summary judgment is one in which the plaintiff cannot prevail because there is no substantial controversy as to any of the issues raised.

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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 wrongful death case and its proceedings.)

STATEMENT OF FACTS

Plaintiffs’ decedent, Kim Smith, was admitted to Memorial Medical Center on November 7, 2008, by Dr. Phillip White for replacement of a cardiac-resynchronation implantable defibrillator (CRT-D) pulse generator that had reached the battery’s elective replacement indicator. Insertion of a coronary sinus lead for left-ventricular pacing was also planned. The previously implanted system consisted of a Medtronic Model 7277 InSync Marquis pulse generator, Model 5076 transvenous atrial lead, Model 6947 transvenous right-ventricular lead, and Model 5071 epicardial left-ventricular lead. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On November 8, 2008, Dr. White performed a CRT-D generator replacement (with a Medtronic Model C154DWK Concerto generator), pocket revision, and removal of lipoma. The coronary sinus was cannulated, but no lead was deployed because the target vessels were too small. No complications were noted. Postoperatively, Ms. Smith did not exhibit any signs or symptoms of infection. She was discharged home on November 10, 2008.

Subsequent to her discharge from Memorial Medical Center, Ms. Smith was seen in office for a follow-up by her general practitioner, Dr. Hernandez. On November 15, 2008, Dr. Hernandez diagnosed Ms. Smith with left chest wall wound infection and prescribed her Rocephin and Keflex. Dr. Hernandez continued to follow Ms. Smith in his office on November 18, November 25, November 27, November 30, and December 7, 2008. On December 20, 2008, Ms. Smith presented to the Emergency Room at Memorial Medical Center with complaints of redness and pain at the site of the CRT-D pulse generator. She was diagnosed with an infected CRT-D pocket and cellulitis.

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