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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.)

PLAINTIFFS HAVE COMPLETELY FAILED TO SHOW ANY LEGAL DUTY BY DR. LEE TO DISCUSS POSSIBLE SURGERY. REFERRAL TO A NEUROSURGEON. OR PHYSICAL THERAPY ON THE NECK SINCE HE DID NOT RECOMMEND ANY OF THOSE INTERVENTIONS

Citing Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 and Truman v. Thomas (1980) 27 Cal.3d 285 165 Cal.Rptr. 308, 611 P.2d 902, Plaintiffs contend that Dr. Lee had a “legal duty” to disclose risks associated with not treating his dens fracture or with performing physical therapy. In so doing, they ignore the fact that both Cobbs and Truman repeatedly refer to “recommended therapy” in connection with a duty to disclose. In the instant case, Plaintiffs claim that Dr. Lee had a legal duty to discuss the risks of treatments he DID NOT recommend. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A nearly identical claim was rejected in Vandi v. Permanente Medical Group, Inc. (1992), 7 Cal.App.4th 1064; 9 Cal.Rptr.2d 463. There, the Court of Appeal began their decision by stating [opinion at pg. 1066]:

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It is worth noting that situations similar to those described in this birth injury 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.)

IRREGULARITY IN THE PROCEEDINGS AND ERROR OF LAW

Code of Civil Procedure Section 657(1) provides a new trial may be granted based upon any irregularities in the proceedings of the court, or any order of the court or abuse of discretion by which a party was prevented from having a fair trial. Section 657(7) provides for vacating a verdict and ordering a new trial due to an error of law which occurred at trial.

The grant of a new trial is a proper remedy for the giving of an erroneous jury instruction when the improper instruction materially affected the substantial rights of the aggrieved party. [C.C.P. §657.] …’When a new trial was granted on the basis of an erroneous instruction, the order will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury …’ (Maher v. Saad (2000) 82 Cal.App.4th 1317, 1325 citing Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205, quoting Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 871; See also Brignoli v. Seabound Trans. Co. (1947) 29 Cal.2d 782, 791 : “Where it appears that an erroneous instruction confused or misled the jury, a new trial is justified.”) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It Was Substantial Error to Give the CACI 506 Instruction
The order allowing CACI 506, when there was no evidence that Dr. Hill followed an approved or alternative method of diagnosis, was erroneous as a matter of law. This instruction presumptively was prejudicial to Plaintiff, as evidenced by the jury’s note.

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The following blog entry is written to illustrate a common motion filed during the pre-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 brain injury case and its proceedings.)

PLAINTIFF’S SUPPLEMENTAL DESIGNATION OF PAUL BROWN, M.D., IS PROPER BECAUSE IT IS TIMELY AND REASONABLY RELATED TO THE SUBJECTS TO BE COVERED BY DEFENSE MEDICAL EXPERTS HALL, M.D. AND JONES, M.D.

Defendants do not dispute that plaintiff’s supplemental designation of Dr. Brown was timely served. Defendants complaint that plaintiff had retained Dr. Brown prior to the date of the scheduled exchange of expert information is unavailing. California pre-trial procedural law recognizes that a party may retain a consulting expert and not have to designate him at all, if the party does not intend the expert to testify at trial. When the party decides to call the expert, he must comply with the pre-trial discovery procedures of the code. Code of Civil Procedure § 2034.230(a) (refers to “Expert trial witnesses”); Kennemur v. State of California (1982) 133 Cal. App. 3rd 907, 916. Plaintiff has clearly complied with the procedural requirements of the code. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury 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.)

SUCH COMMENTS AND OPINIONS ARE IRRELEVANT, INADMISSIBLE AND PURELY SPECULATIVE

Evidence Code section 350 states that only relevant evidence is admissible. Speculation in itself is not evidence and evidence which produces only speculative inference is irrelevant. (People v. De la Plane (1979) 88 Cal.App.3d 223) Evidence Code section 352 allows the court in its discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice of confusing the issues or of misleading the jury. Testimony which invites improper speculation by the jury is construed to be misleading, confusing, and can be excluded pursuant to Evidence Code section 352. (Cox v. Superior Court (2002) 98 Cal.App.4th 670, 675.) In this case, Dr. Hill treated this child for months, from March 2001 through January 2000. She then left the University. It is purely speculation that had Emma sought out Dr. Hill again that she would have made a diagnosis she ruled out earlier.

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

During the time frame that Dr. Hill treated Emma she was only part-time at Universal Hospital, working two days a week in the clinic. She started at Universal Hospital in May 2000 and left in February 2000. It is also pure speculation that had she seen the original pediatric neurologist, Dr. Trauner, Dr. Lee or Dr. Skoglund who were available during this entire course of time, that any of them would have made this diagnosis. There is no duty to return to a physician who is wrong.

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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.)

Evidence of Retirement and Survivor Payments and Benefits Based on Mr. Hill’s Military Service Are Admissible As Collateral Sources

Issues pertaining to the amount of damages sought in this case, particularly in reference to claims made based on Mr. Hill’s projected income must be examined at the time of trial and cannot justifiably be excluded from evidence. For example, serious questions exist as to whether Mr. Hill, even if he otherwise was able to resolve his suicidal tendencies including two § 5150 holds within close proximity to each other, a car accident while driving a military vehicle and a drug overdose, would have allowed him to remain in the military so as to reach full retirement. Had Mr. Hill reached his full 20 years of military service, he would have been entitled to a pension at 50% of his base pay at retirement. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Assuming plaintiffs seeks to present evidence regarding the viability of a full military career to 20 years, defendants are entitled to an offset for whatever equivalent payments Mrs. Hill is receiving in lieu of that pension which would otherwise have not been obtained had he not died. See, e.g. Rotolo v. Superior Court (2003) 105 Cal.App.4th 242. Rotolo dealt with a functionally identical situation as here, of a plaintiff claiming both lost wages (albeit due to a disabling injury, not a death) and lost standard retirement/pension payments benefits of about $875,000. However, the evidence showed that, due to his disability, he was entitled to receive replacement disability retirement payments of a nearly equivalent amount in lieu of his normal retirement, He otherwise would not have received such sums had he not become disabled and retired for this reason.

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(Please 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.)

ARGUMENT
THE TRIAL COURT IS ENTITLED TO AND MUST INDEPENDENTLY REVIEW THE EVIDENCE, SO AS TO GRANT A NEW TRIAL WHEN A JURY VERDICT IS AGAINST THE SUBSTANTIAL WEIGHT OF THE EVIDENCE

In a jury trial, each party has two hearings, one before the jury and the other before the court as “a 13th juror.” Nordent v. Hartman, 111 Cal.App.2d 791, 798 (1952). It is not only the right, but also the duty of the trial judge to grant a new trial when he or she believes the weight of the evidence to be contrary to the finding of the jury. Rice v. Kaiser Co.,102 Cal.App.2d 44, 45 (1951)

As part of its review of the verdict, a trial court is not bound by the conclusions of the jury:

In weighing and evaluating the evidence, the court is a trier of fact and is not bound by factual resolutions made by the jury. The court may grant a new trial even though there may be sufficient evidence to sustain the jury’s verdict on appeal, so long as the court determines the weight of the evidence against the verdict. Candido v. Huitt, 151 Cal.App.3d 918 (1984).

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

The authority of a trial court to grant a new trial is established and circumscribed by statute, which provides seven legal grounds for such a motion. See Code of Civil Procedure §657(1)-(7). These grounds are: (1) Irregularity in the proceedings; (2) Misconduct of the jury; (3) Accident or surprise; (4) Newly discovered evidence; (5) Excessive or inadequate damages; (6) Insufficiency of the evidence; and (7) Error in law. See Id.

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It is worth noting that situations similar to those described in this birth injury 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.)

POINTS AND AUTHORITIES
THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY THE VERDICT

Code of Civil Procedure Section 657(6) permits the vacating of a verdict and ordering of a new trial if the evidence was insufficient to justify the verdict. The Fourth District Court of Appeal has held that, in determining whether a new trial may be granted on this ground, the trial court must independently weigh the evidence and assess its sufficiency to support the verdict; a new trial may be granted even if the evidence would be considered sufficient to sustain the verdict reached by the jury on appeal. People v. Capps (1984), 159 Cal.App.3d 546, 552; Candido v. Huitt (1984) 151 Points and Authorities in Support of New Trial Points and Authorities in Support of New Trial Cal.App.3d 918, 923. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In the instant case, the testimony of the experts, including Dr. Hill herself, conclusively establishes that Dr. Hill included DRD in her differential diagnosis. She then failed to rule out this diagnosis and further failed to inform the patient of the availability of a simple medication to diagnose DRD. Given the testimony of plaintiff’s expert witnesses, and Dr. Hill herself, the jury’s failure to find Dr. Hill/The Medical Center negligent was clearly unsupported by the evidence and cannot be substantiated.

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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.)

Plaintiff Has Effectively Waived A Privilege Which Can No Longer Be Asserted

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

Any attempt by plaintiffs counsel to argue that his expert’s decision to approach the defense expert for an opinion or consultation on the case as being privileged or protected information is futile. The party asserting a privilege (plaintiffs counsel and expert) must establish whatever preliminary facts are necessary to show that the proffered evidence is privileged. (Evidence Code § 405) Here, opposing counsel will undoubtedly attempt to argue that the very fact that its ER expert sought out the opinion of the defense expert is a matter which falls under the protection of the attorney work product privilege and should remain so. This notion is contrary to California law however. Evidence Code § 912 subd. (a) states in pertinent part regarding waiver of privilege:

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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.)

Claimed Absence Of Explanation By Dr. Smith

Second, it is interesting that Plaintiffs claim Dr. Smith gave no explanation for how spinal cord injury would be avoided by ordering Mr. Greene into physical therapy. The simple explanation for this claimed failure by Dr. Smith is that the cited questioning was by Plaintiffs’ counsel, who elected not to ask for an explanation.

Testimony Of Dr. Brown As To Physical Therapy

Going to the testimony of treating neurosurgeon Dr. Brown, Plaintiffs claim that he testified that it is below the standard of care to order physical therapy for a patient with a neck fracture. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Unfortunately, Plaintiffs seem to ignore the fact that the standard of care to which Dr. Brown was referring was the neurosurgery standard of care, and that the question itself refers to an order for physical therapy of the neck:

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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.)

Plaintiff’s Wrongful Death Action Is Subject to Civil Code § 3333.1

Plaintiff Stella Hill’s wrongful death claim against defendant is thus, subject to collateral source rule articulated in Civil Code § 3333.1, allowing introduction of evidence of any amount payment as a benefit to the plaintiff. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Yates v. Pollock (1987) 194 Cal. App. 3d 195, a wrongful death action by the heirs of the decedent, the court upheld the applicability of Civil Code § 3333.1 and reiterated that that wrongful death claims are for injuries suffered by the heirs of medical malpractice victims. Id at 199. (See also, Krouse v. Graham (1977) 19 Cal.3d 59, 68.) In reaching a determination that the legislative intent of the statutory provisions placing a $250,000 cap on awards for noneconomic damages in all medical malpractice litigation, whether recovery is sought by patients who have themselves suffered personal injuries or by the survivors of such victims who initiate suits for wrongful death, the Yates Court relied on and pointed out the plain, unambiguous language in Civil Code § 3333.2 which states in pertinent part:

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