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It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(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.)

STATEMENT OF FACTS

Albert Greene was injured in a fall at the Sacramento National Sporting Goods store on February 17, 2005. Thereafter, Mr. Greene received medical care and treatment from Defendants Black, Lee, Wong, and Sacramento Valley Medical Center. Mr. Greene was hospitalized for five days after which he was transferred to convalesce for three weeks of physical therapy with no more than a soft collar, and released to home.

Mr. Greene separated from his wife, Frances Greene, on March 11, 2006. Thereafter, Mr. Greene became a resident of an assisted living home in Sacramento, California with his daughter Sylvia Smith exercising a healthcare power of attorney. On April 13, 2006, Ms. Smith arranged for a mobile radiologist to conduct a head-to-toe CT scan due to his decline in mobility. Mr. Greene’s three fractured cervical vertebrae were then discovered. Neurosurgeon, Dr. William White, MD, subsequently performed a full cervical laminectomy in May 2006.

Mr. Greene died on June 23, 2007.

DEFENDANT’S MOTION DOES NOT SATISFY HER BURDEN UNDER CCP § 437c
Summary Judgment is a drastic procedure which is to be used with caution to avoid becoming a substitute for the fact finding process of trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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 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, Sutter, or any skilled nursing facility.

The standard of care in a medical malpractice case requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412, 175 Cal.Rptr. 365.)

It is also established that a nurse’s conduct must not be measured by the standard of care required of a physician or surgeon, but by that of other nurses in the same or similar locality and under similar circumstances. (See Fein v. Permanente Medical Group (1985) 38 CalJd 137, 150-151, 211 Cal.Rptr. 368, 695 P.2d 665; Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 341, 160 Cal.Rptr. 246.) Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A medical expert is not qualified as a witness unless it is shown that he is familiar with the standards required of physicians under similar circumstances. Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 8 A.L.R.2d 757; Moore v. Belt, 34 Cal.2d 525, 532, 212 P.2d 509.

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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.)

DISCUSSION

A motion to strike is of course appropriate to strike any “improper matter in a pleading, or any part of a pleading” not drawn or filed in conformity with the laws of this state. CCP § 436.

One might begin the discussion of punitive damages with the universally recognized principle that [t]he law does not favor punitive damages and they should be granted with the greatest caution. Dyna-Med Inc v. Fair Employment and Housing Commission (1987) 43 Cal 3d 1379, 1392. This of course makes excellent sense, as the defendant will be subject to personal liability virtually equal to one found guilty of criminal conduct.

The burden of proof a plaintiff must meet is higher than that for any other civil issue: the plaintiff must prove by “clear and convincing evidence” that the defendant is guilty of oppression, fraud, or malice … Civil Code § 3294 (a). An one appellate court noted, “Clear and convincing evidence” requires a finding of high probability … requiring that the evidence be “so clear as to leave no substantial doubt.” In re Angela P (1981) 28 Cal 3d 908, 919. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The elements plaintiff must prove are no less stringent. The plaintiff must prove “oppression, fraud or malice.” CC § 3294 (a). Thus, “the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” Dawes v. Superior Court (1980) 111 Cal App 3d 82, 90.

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It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(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.)

Plaintiff Sylvia Smith, et al.’s Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment
INTRODUCTION

This is a trip/fall and medical malpractice action arising out of decedent Al Greene’s February 2005 fall in the Sacramento National Sporting Goods store, wherein he fractured three cervical vertebrae, and the subsequent failure to treat these injuries at the Sacramento Valley Medical Center. Moving party Thomas Black, MD, is the attending emergency room physician who was advised of the possible fractures but did not respond accordingly. The fractures were not treated until more than a year later by which time Mr. Greene was a functional paraplegic. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Black now moves for summary judgment on the grounds that notwithstanding his failure to address the cervical fractures, he met the standard of care in the community and thus committed no malpractice. Plaintiffs’ emergency room consultant disagrees that Dr. Black failure to address the possible cervical fractures satisfies the standard of care.

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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
SABRINA SMITH WAS NOT NEGLIGENT

In the case at bar, there is absolutely no evidence that Mrs. Smith was negligent. There is no evidence that she did anything other than advocate for her child’s correct diagnosis. No witness has opined that she ever acted against medical advice. The record is devoid of evidence that by seeking additional opinions after physicians failed to treat and diagnose her child, she acted in any manner other than a reasonable person or parent.

To allow defense witnesses to imply that if she had taken an alternative approach and returned enough times to Dr. Hill, who did not make the diagnosis, the diagnosis would have been made, is pure speculation. Dr. Hill was not even at the University after February 2000! Evidence Code 352 precludes such speculation. Mrs. Smith cannot appear on the verdict form without proof of fault. The act of not returning to the same physician, unless this changing of doctor is against medical advice, is not negligence. Mrs. Smith had no duty to return to Dr. Hill. Duty is a question of law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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 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, Sutter, or any skilled nursing facility.

In the present case, the standard of care for the specialty fields of plastic surgeons and nursing, as well as whether Dr. Goldberg and the nursing staff complied with same, are matters exclusively for the province of expert testimony (unless the doctrine of res ipsa loquitur applies).

A physician’s standard of care is the key issue in a malpractice action and can only be proved by expert testimony unless the circumstances are such that the required conduct is within the layperson’s common knowledge. (Landeros v. Flood (1976) 17 Cal.3d 399, 410, 131 Cal.Rptr. 69, 551 P.2d 389; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 CaUth 992, 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The common knowledge exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 CaUth at p. 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142, fn. omitted.) Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800-801.

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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.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

Defendants’ Motion in Limine to Preclude Sydney Chu, Paul White, P.A., Dr. Smith, Dr. Greene, Dr. Finklestein, and Dr. Brown from Testifying as to Causation of Plaintiff’s Disc Injury
INTRODUCTION

Defendants Donna Lee and Veronica Lee hereby move this Court for an order instructing that plaintiff, his witnesses and counsel are precluded from attempting to solicit, in any form or manner, any evidence from lay witnesses, non-retained treating physicians Paul White, P.A., Dr. John Brown, M.D., Dr. Devin Smith, or retained experts Sydney Chu, Dr. Andrew Greene, or Dr. Sean Finklestein as to the causation of his claimed injuries specific to plaintiff Henry Johnson’s February 2009 L5-S1 fusion surgery at Memorial Medical Center.

The basis for this motion is that plaintiff’s counsel disclosed that retained experts Sydney Chu, Dr. Sean Finklestein, and Dr. Andrew Greene would render opinions regarding causation for injuries from the subject accident that occurred on August 9, 2007. Also disclosed was that non-retained expert and treating medical provider Paul White, P.A., would also render an opinion on causation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

At Dr. Greene’s and Mr. White’s depositions, each of these medical treaters testified that they would not render an opinion regarding the causation of plaintiff’s L5-S 1 disc injury that led to L5-S1 fusion surgery by Dr. Devin Smith at Memorial Medical Center, on or around February 6, 2009. As well, at deposition, Dr. Smith testified that he would not render any opinion on causation as to the L5-S1 fusion surgery that he performed.

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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.)

Defendant’s Motion to Strike Punitive Damages: Points & Authorities
Procedural Matters

This motion is filed pursuant to the Court’s tentative ruling, which became the final ruling, and in which the Court granted plaintiffs motion to amend for punitive damages, but also granted leave for the defense to file and serve a motion to strike. Thus, the Court apparently granted to motion to file based on the jurisprudence governing filing amended complaints, and is permitting this forum of the motion to strike to address whether the punitive damages allegations should be allowed to stand.

FACTS

This case is based upon a two vehicle accident which occurred on November 18, 2008. Plaintiff Eli White was on a motorcycle and collided with defendant Lee’s vehicle. There is a dispute as to who had the green light. There are no allegations of driving while under the influence; plaintiff simply lists various aspects of an ordinary vehicle accident in the First Amended Complaint and then appends conclusory language that the actions entitle plaintiff to “exemplary and punitive damages.” For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The only facts upon which counsel attempts to bring this ordinary auto negligence case under punitive damages are: (1) defendant was “running a red light,” defendant “traveled in an undesignated lane at a high rate of speed,” and (3) “proceeded into a busy intersection.” Id.

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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 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, Sutter, or any skilled nursing facility.

California Evidence Code section 720 further defines the necessary foundational requirement before a witness will be allowed to testify as an expert in a particular area:

(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

(b) A witness’ special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony. (Calif. Evid. Code section 720.)

As discussed in greater detail below, there can be no doubt that Dr. Lee is not a qualified expert in plastic surgery or nursing. He has no special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Clearly, if Plaintiffs were proposing that Dr. Lee should be permitted to testify regarding the standard of care for plastic surgeons and nurses, and whether this was complied with in the present case, both Defendant Smith and the Court would not allow it. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.

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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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