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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, 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 considering whether res ipsa loquitur applies, it is not for the trial court to ascertain whether defendant’s negligence is the more likely explanation of the accident; it should merely determine whether plaintiff has produced sufficient substantial evidence to permit a jury to draw such an inference, and where reasonable men might differ on the balance of probabilities it should be left to the jury. Ghema v. Ford Motor Co. (1966) 246 Cal. App. 2d 639, 55 Cal. Rptr. 94.

Where – as here – the evidence conflicts or is subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the res ipsa loquitur rule are present. Robledo v. Los Angeles (1967) 252 Cal. App. 2d 285,60 Cal. Rptr. 328. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In considering the applicability of res ipsa loquitur, it is not for the trial court to ascertain whether a defendant’s negligence is the more likely explanation of the accident; the court merely determines whether the plaintiff has produced sufficient substantial evidence to permit a jury to draw such an inference; and, where reasonable men may differ as to the balance of the probabilities, the trial judge must leave that question to the jury. Albers v. Greyhound Corp. (1970) 4 Cal. App. 3d 463, 84 Cal. Rptr. 846.

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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 birth injury case and its proceedings.)

In Justus v. Atchison (1977) 19 Cal.3d 564, the California Supreme Court made it clear that a layperson’s witnessing events during delivery does not give rise to a cause of action for NIED, because a layperson is not aware of the significance of the events. Justus involved two factually similar actions for medical malpractice and wrongful death, each predicated on alleged negligence occurring during delivery. The fathers in both actions sought to recover for NIED for what they witnessed during the delivery, but the Supreme Court held that they did not have a cause of action. The Court succinctly summarized the facts of the two cases, which are remarkably similar to the facts in the instant action:

Each plaintiff-husband asserts he was present in the delivery room and in close proximity to his wife, and observed the defendants ministering to the latter. In Justus, plaintiff then alleges he saw the manipulation of the fetus with forceps and by hand, and the emergency procedures performed on his wife in connection with the attempted Cesarian section. 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 brain injury 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 medical malpractice case and its proceedings.)

NIED Factual Pleading cont.

43. Plaintiff Ethan Lee was present at the scene of the injury to his child when it occurred and at that time and place and had contemporaneous sensory awareness of the causal connection between the negligent conduct of the Defendants and was reasonably certain that his child was being injured from negligent medical care during labor and delivery, as herein alleged.

44. Plaintiff Thomas Lee was present in the labor room during the labor and delivery his son and witnessed thick meconium during the labor, and knew that the meconium was impeding his son’s breathing, and causing a lack of perfusion of blood and oxygen to this child’s brain.

45. Plaintiff Thomas Lee also witness his son’s heart rate decrease, and knew at the time that the decreased fetal heart rate meant that this son was not receiving enough blood and oxygen to his brain, and was thereby being damaged from the lack of blood and oxygen. When Ethan Lee was born his father witnessed his son to be lifeless and in severe distress, and Thomas Lee understood that his son was suffering brain damage at the time.

46. Said Defendants in disregard of the probability that their actions, in failing to provide the necessary medical treatment to Ethan Lee, were a substantial factor in causing Plaintiff Thomas Lee to suffer severe emotional distress. 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 car accident case and its proceedings.)

Hill’s Request Should Be In the Form of a Demurrer. Motion to Strike, or Judgment on the Pleadings. Not a Motion for Summary Adjudication.

Defendant also argues that plaintiffs’ request for punitive damages should be stricken because plaintiffs’ complaint only contained legal conclusions and generalizations. Defendant’s characterization is inaccurate as the portion of the complaint seeking punitive damages is full of specific factual allegations. Furthermore, if the basis for this motion is the legal sufficiency of the plaintiffs’ complaint, then defendant should have challenged it instead with a demurrer, motion to strike, or motion for judgment on the pleadings.

Defendant cites Cohen v. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1 for the proposition that plaintiffs’ request for punitive damages should be stricken because the complaint contained only legal conclusions. In Cohen, which was an appeal on a motion for judgment on the pleadings (rather than a motion for summary adjudication), the complaint sought punitive damages by stating abstract legal conclusions such as malice, wanton, and willful. (Id. at 8.) No specific factual allegations were made to support the punitive damages claim. (Id.) Plaintiffs’ complaint in the subject action is replete with specific facts.

Plaintiffs alleged that in an act of road rage, Hill swerved his car toward Sean Black’s SUV; that Hill’s car traveled erratically; and that it slammed into Sean’s SUV, causing it to roll over three times. The Lynchs’ complaint does not contain generalizations and legal conclusions. It is supported with numerous and specific factual allegations. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A motion for summary adjudication is not the proper procedure for defendant to attack plaintiffs’ complaint.

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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.

Allowing Dr. Lee to testify regarding the standard of care for the plastic surgeon or the hospital would constitute clear reversible error as he is not a qualified surgical or hospital standard of care expert.

Here, it is readily apparent that regardless of what opinions Dr. Lee may have expressed in his declaration (in a matter which was taken off calendar and never truly even addressed), it would be clearly improper to knowingly elicit expert opinion testimony from Dr. Lee in specialty medical fields in which he clearly is not a qualified expert.

The California Evidence Code and cases clearly provide for a mechanism to exclude such an improper opinion, and further make it clear that Dr. Lee should not be permitted to opine at trial in areas where he is not a qualified expert. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

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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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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.)

Moreover, in a negligence action it is not for the judge but rather the jury to determine the existence of the facts justifying the application of the doctrine of res ipsa loquitur, and an improper refusal of instructions thereon, followed by a judgment for the defendant, constitutes a denial of fair trial to plaintiff regardless of the jury’s right to weigh the opposing testimony of plaintiff as against the expert evidence of defendant. Rawlings v. Harris (1968) 265 Cal. App. 2d 452, 71 Cal. Rptr. 288.

In Fraser v. Sprageue (1969) 270 Cal. App. 2d, 76 Cal. Rptr. 37, the appellate court held that the evidence was sufficient to entitle plaintiff to have the cause submitted to the jury under a conditional res ipsa loquitur instruction, where plaintiff suffered an injury to the peroneal nerve, where such injury occurred either during surgery performed by defendant or as a result of overtight bandaging by defendant following surgery. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Fraser, an expert in vascular surgery testified that he had performed at least 1,000 such operations without injury to the peroneal nerve and had never heard of such an injury resulting from like operations, where the operation was relatively commonplace rather than complex or unusual, and where, at the time of recommending surgery, defendant made no mention of risk of nerve injury.

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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.)

Plaintiffs Do Not Need to Show that Defendant Intended to Injure Sean Black In Order to Recover Punitive Damages

By describing the subject crash as “merely” accidental, Hill argues that Sean cannot recover punitive damages because he does not have evidence that Hill intended to injure Sean. First, the crash was not just a simple accident. Hill caused the crash by acting recklessly in a number of ways just before the crash. Defendant’s conduct made the crash all but inevitable. But more importantly, there is no bar to recovering punitive damages under Civil Code § 3294 if plaintiffs cannot prove that defendant intended to harm plaintiff.

A conscious disregard of the rights or safety of others means a conscious disregard of the probability that the actor’s conduct will result in injury to others. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895.) Here, Hill’s conduct immediately before the crash significantly increased the chances of injury to others, especially to Sean. In order to obtain punitive damages, plaintiff need not prove that defendant intended to cause injury to the plaintiff. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 808.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Rather, plaintiff needs to only show that defendant acted in conscious disregard for other people’s safety. (West v. Johnson & Johnson Prods., Inc. (1985) 174 Cal.App.3d 831, 867 (inadequate product testing); Penner v. Falk (1984) 153 Cal.App.3d 858, 867 (landlord’s knowledge for years that conditions on premises created danger of criminal attacks); Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279 (allowing grease to build up near gas station pumps).)

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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.)

In October 2002, Mrs. Smith watched a television show regarding DRD. She immediately knew that the diagnosis her daughter had carried for nearly four years, made by Dr. Hill, of spastic diplegia due to birth trauma, was incorrect. She therefore called her pediatrician and was referred to endocrinologist, Bob Greene, M.D. On the same day as the appointment Dr. Greene prescribed a trial dosage of L dopa/Sinemet for Emma. Within literally hours Emma’s symptoms began to disappear.

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

THE ISSUE

During the deposition of the defense expert witness, Dr. Nancy Black, she commented repeatedly that Mrs. Smith did not bring Emma to the same doctor during this four year period. Quotes from the deposition representative of said comments are attached hereto as Exhibit 1. She states that “the kid has been everywhere. The mother was shopping around.” Ultimately, she gives the opinion, based on nothing other than utter speculation, that Emma probably would have been diagnosed somewhat earlier had she just continued to follow up with the first neurologist.

Dr. Black gives this unfounded opinion despite the fact that she admits that Mrs. Smith had Emma participate in all testing ordered by Dr. Hill and that all the testing was normal. Admittedly Dr. Hill did not set a return appointment.

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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.)

LEGAL ARGUMENT

A Triable Issue of Material Fact Exists as to Whether Defendant Hill Acted with Malice, Oppression, and Willful and Conscious Disregard of the Safety of Sean Black.

Summary adjudication to dispose of a plaintiff’s prayer for punitive damages is granted only if the moving party is able to prove that there is no merit to the punitive damages claim. (Code of Civil Procedure §437c(f)(1).) A plaintiff may recover punitive damages in a tort claim if there is clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civil Code § 3294(a).) Malice is defined as despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ.C. § 3294(c)(1).) Oppression is similarly defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ.C. § 3294(c)(2).)

Defendant Hill claims that plaintiffs cannot prove that Hill’s conduct before the violent collision and rollover merits the imposition of punitive damages. Defendant’s motion ignores overwhelming evidence of his own despicable conduct, which directly led to the crash and Sean’s serious injuries. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In the moments before the subject collision, Hill intentionally acted in a number of ways that exponentially raised the risk of a high speed crash and significant harm to Sean Hill. They include:
*repeatedly cutting off Sean;
*driving erratically;
*shaking his fist while leaning across his front passenger seat;
*doing all of the above while holding a cigarette;
*doing all of the above while traveling at 65 to 70 miles per hour; and
*swerving towards Sean’s vehicle.

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