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It is worth noting that situations similar to those described in this wrongful death 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 medical malpractice case and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a wrongful death action filed by the adult children of James Smith. This Motion for Summary Judgment is brought on behalf of defendant Peter Hill, M.D. Dr. Hill is an emergency physician who was involved in the care and treatment of James Smith when he presented to the emergency department of the Valley Medical Center on February 19, 2008.

Factually, on or about February 17, 2008, James Smith (age 85) suffered a fall at the premises of the co-defendant National Sporting Goods. On February 19, 2008, he was transported by ambulance to the emergency department of the Valley Medical Center with complaints of neck pain and severe headache. By history, he reported striking the front portion of his head during the fall of February 17.

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

Moving defendant Peter Hill, M.D. was the emergency physician on duty in the emergency department of the Valley Medical Center on February 19, 2008. He evaluated James Smith and ordered diagnostic studies, including a CT scan of the head, a CT scan of the cervical spine (neck), and flat plate x-rays of the neck (all interpreted by co-defendant radiologist Dr. Goldstein).

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It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC 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 personal injury case and its proceedings.)

PLAINTIFFS’ ELDER ABUSE CLAIM AGAINST DEFENDANTS
Overview Of The Elder Abuse Act

The statute at issue is the Elder Abuse And Dependent Adult Civil Protection Act It is found at California Welfare and Institutions Code section 15600, et seq. The Act is referred to here as simply the Elder Abuse Act.

The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Delaney v. Baker, 20 Cal. 4th 23, 33 (1999). The Elder Abuse Act was originally passed in 1982 in recognition that dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect such persons. Id. Subsequent amendments refined the 1982 enactment, but the focus remained on reporting abuse and using law enforcement to combat it. Id. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In 1991, the California Legislature passed amendments to the Act shifting the focus to private, civil enforcement of laws against elder abuse and neglect. Delaney, 20 Cal. 4th at 33. The Legislature declared that “infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits.” Cal. Welf. & Instit Code § 15600(h).

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It is worth noting that situations similar to those described in this wrongful death 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 medical malpractice case and its proceedings.)

Notice of Motion and Motion for Summary Judgment of Defendant Peter Hill, M.D.; Memorandum of Points and Authorities; Declaration of Clive Brown, M.D.

Defendant Peter Hill, M.D., will move this Court for an Order granting summary judgment against plaintiffs Robyn Lee, Individually and as the representative of the estate of James Smith, deceased, Andrea Lane, and Samantha Black (hereinafter “Plaintiffs”) and dismissing all causes of action of the First Amended Complaint on file herein insofar as they relate to defendant Peter Hill, M.D.

This Motion will be brought pursuant to California Code of Civil Procedure §437c, on the grounds that Plaintiffs’ First Amended Complaint has no merit and fails to present any triable issue of material fact insofar as defendant Peter Hill, M.D. is concerned because the care and treatment he provided to the plaintiffs’ decedent was at all times appropriate and within the standard of care. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This Motion will be based upon this Notice, the Memorandum of Points and Authorities and Declaration of Clive Brown, M.D. served and filed herewith, the Separate Statement of Undisputed Material Facts served and filed concurrently herewith, and the pleadings, records, and files in this action. (See Part 2 of 5.)

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC 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 personal injury case and its proceedings.)

LAW AND ARGUMENT

Directed Verdict Standard cont.

In evaluating the evidence submitted by a plaintiff, the court may focus on the quality, rather than the quantity, of the evidence. A small amount of very solid evidence may be considered substantial while a great deal of extremely weak evidence may be considered insubstantial. Toyota Motor Sales USA, Inc, supra at 871-872. Inferences may constitute substantial evidence but only if they are supported by logic and reason rather than speculation or conjecture. Louis & Diederich, Inc v Cambridge European Imports, Inc (1987) 189 Cal App.3d 1574, 1584-1585. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff has Failed to Produce Substantial Evidence to Support Her Cause of Action for Elder Abuse
Plaintiff seeks damages and enhanced remedies, including attorney’s fees and punitive damages, under the Elder Abuse and Dependent Adult Civil Protection Action (Welfare & Institutions Code §15600, et seq), also known as the Elder Abuse Act. The Elder Abuse Act was designed to protect elderly and dependent persons from abuse, neglect or abandonment. In addition to adopting measures designed to encourage reporting of abuse and neglect, the Act gives the court discretion to award attorney’s fees to a prevailing plaintiff and allows survivors to recover pain and suffering damages in cases of intentional and reckless abuse where the elder has deceased (up to a maximum of $250,000.00). Mack v Soung (2000) 80 Cal.App.4th 966, 971-972.

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It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC 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 personal injury case and its proceedings.)

Additionally, all of the other factors a Court will consider in assessing alter ego warrant the finding that these two entities are alter egos. The XYZ Corporate Defendants appear to have complete control over the assets of Universal Healthcare (factor #1), in that all money earned by Universal Healthcare is deposited into an account that only the XYZ Corporate Defendants can access and withdraw money from. The XYZ Corporate Defendants appear to accept liabilities of the skilled nursing facilities they own (factor #4), as is illustrated by their agreement to settle and pay for government litigation involving their facilities. The XYZ Corporate Defendants and Universal Healthcare have identical equitable ownership (factor #6).

The equitable owners of these entities dominate and control them both (factor #7). Specifically, the administrator of Universal Healthcare reports to a Regional Supervisor, who is employed by the XYZ Corporate Defendants. As noted, the XYZ Corporate Defendants entirely control the financial operations at Universal Healthcare, going to far as to disallow Universal Healthcare employees from withdrawing money from the facility’s own bank account. The XYZ Corporate Defendants have a quality assurance program designed to ensure facility compliance with the laws governing skilled nursing facilities. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The officers and directors of the XYZ Corporate Defendants and Universal Healthcare are substantially similar (factor #8). Donna Lee is identified on documents filed with the state of California as the Chief Financial Officer for both of these companies. Neil A. Greene is the President of XYZ, Inc. His child, Nancy Greene, is the President of Universal Healthcare, Inc.

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It is worth noting that situations similar to those described in this wrongful death 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 medical malpractice case and its proceedings.)

Memorandum of Points and Authorities in Support of Defendant, Robert Goldstein, D.O.’s Motion for Judgment on the Pleadings

Defendant, Robert Goldstein, D.O. (hereinafter referred to as “Dr. Goldstein”), by and through his attorneys, ABC & Associates, and as and for his Memorandum of Points and Authorities in Support of his Motion for Judgment on the Pleadings to plaintiffs’ First Amended Complaint, states as follows:

INTRODUCTION

On August 2, 2009, plaintiffs, Robyn Lee, individually and as the representative of the estate of James Smith, deceased (hereinafter referred to collectively as, “Plaintiffs”), filed their First Amended Complaint in the above-captioned case. They assert two causes of action against Dr. Goldstein; the second cause of action for medical malpractice – survival action, and the third cause of action for wrongful death. Plaintiffs’ first cause of action for premises liability – survival action is not directed at Dr. Goldstein.

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

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The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. 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 also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Based on the fact that there was no evidence to show that the plaintiff was under any medical care and treatment for either her back or her neck prior to this automobile accident, and given the fact that the plaintiff did seek immediate medical care and treatment which was rendered at Kaiser, the evidence must be given weight to support a finding that the plaintiff was harmed as a result of the defendant’s imminent liability.

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

The question is not whether or not the plaintiff recovered from her injuries over time, but instead is a question of whether or not she was injured or harmed as a result of this negligent conduct and as such incurred both economic and non-economic losses. The testimony in this case was not refuted by any evidence presented by the defendant that the plaintiff following this accident was admitted to the emergency room at Kaiser, received medical care and treatment, was administered powerful narcotics, that the plaintiff followed up her injuries with her primary care physician within two (2) days of the date of this accident, that the plaintiff was off work for a period of time as a result of her injuries, and that the plaintiff suffered pain and suffering as a result of this accident.

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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.)

ARGUMENT
A. The Conversation that Occurred Between Dr. Gamble and Dr. Lee Is Relevant to Dr. Gamble’s Qualifications and Expertise and the Prejudicial Affect that Plaintiffs Counsel Predicts Does Not Meet the Requirements of Evidence Code section 352

Plaintiff complains that mentioning the conversation and the partnership between the doctors creates a risk that the jury will perceive the testimony as equal in caliber simply because of the affiliation. This is a weak disguise for plaintiffs true concern that the jury will find out that Dr. Gamble sought out Dr. Lee’s assistance before drawing his own conclusions about this case. Dr. Gamble testified at his deposition that this conversation occurred about the same time as he signed his declaration to oppose the summary judgment motion. The very fact that he sought out assistance during this critical time is probative of his credibility as an expert witness and of the opinions proffered in the many drafts of his declaration produced at his deposition.

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

Even if we were to entertain Plaintiffs contention that the jury may conclude that partners are equal, this is not a source of undue prejudice to the Plaintiff because it would adversely affect the Defendants as well. Most evidence is “prejudicial” to the party against whom it is offered, but that is not enough to preclude it under Evidence Code section 352. Further, the probative value of any such evidence far exceeds any small prejudicial affect it may have.

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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, 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 personal injury case and its proceedings.)

Discussion of Dr. Lee’s Testimony cont.

Additionally, at another point in his deposition, Dr. Lee testified that his best understanding of where the pressure sore began was with reddening at XYZ. Lee Depo. at 87:6-88:2.

From the totality of Dr. Lee’s deposition testimony it is clear that he cannot testify to a reasonable degree of medical certainty that Ms. Hill’s pressure sore did not begin at XYZ Healthcare. Indeed, he testified to precisely the opposite in his deposition. Given this, Dr. Lee should be precluded from offering the opinion at trial that, to a reasonable degree of medical certainty, Ms. Hill’s pressure sore began at XYZ Healthcare.

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

Inquiries Should Be Made As To Whether Dr. Lee Has Been Apprised Of His Fifth Amendment Right To Not Incriminate Himself Regarding Potentially Criminal Conduct

Dr. Lee signed two declarations in connection with his expert work in this matter. One declaration was in support of defendants’ motion for summary judgment. The other declaration related to his efforts to have his deposition taken in SanDiego rather than Sacramento. Both declarations contain significant and material false statements.

While Dr. Lee can follow the lead of his counterpart nurse Cece Brown and suggest that the false statements in his declaration in support of summary judgment were unintentional oversights, plaintiffs do not believe the same can be said for his declaration seeking to have his deposition in Fresno rather than Sacramento.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC 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 personal injury case and its proceedings.)

DEFENDANT’S MOTION FOR DIRECTED VERDICT [C.C.P. §630]
INTRODUCTION AND PROCEDURAL HISTORY

At the outset of trial plaintiffs dismissed their negligence and certain other causes of action The action is currently proceeding on plaintiffs’ claims for elder abuse and wrongful death. Both of these causes of action are statutory in nature. Plaintiffs have now closed their case and the presentation of plaintiffs’ evidence to the jury is complete. In accordance with C.C.P. §630, the defendants now move for directed verdict as to both the elder abuse cause of action and the wrongful death cause of action on the basis that substantial evidence has not been presented which could support a verdict by the jury in favor of plaintiff on either of these remaining causes of action.

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

LAW AND ARGUMENT
Directed Verdict Legal Standard

A motion for directed verdict, like a motion for non-suit, operates as a demurrer to the evidence. Hilllard v A.H. Robins, Co (1983) 148 Cal.App.3d 374, 394; Brassinga v City of Mountain View (1998) 66 Cal.App.4th 195, 210. A directed verdict motion challenges the legal sufficiency of the opposing party’s evidence and whether such evidence can make out a prima face case for the claims asserted. See, County of Kern v Sparks (2007) 149 Cal.App 4th 11, 16.

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