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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.

DISCUSSION

1) Allowing Dr. Lee to Testify regarding the Standards of Care for the plastic surgeon or the hospital, would violate the holdings of Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919; Jones v. Moore (2000) 80 Cal.App.4th 557; and Bonds v. Ray (1999) 20 Cal.4th 140.

In Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919, the Fifth District held that where the plaintiff sought to elicit causation opinion testimony of an expert at trial, where that expert was not designated to give expert opinion testimony regarding causation, and where that expert had said he had no opinion regarding causation at three prior depositions, exclusion of this new area of testimony is required. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Kennemur was followed by the legal malpractice case of Jones v. Moore (2000) 80 Cal.App.4th 557, and the medical malpractice case of Bonds v. Roy (1999) 20 Cal.4th 140. In Jones, the Plaintiff’s expert testified at deposition he had an opinion about whether the defendant complied with the standard of care in negotiating a divorce decree, but not in other areas. At trial, the trial court, as in the present case, excluded any opinions of the expert outside the opinions testified to at his deposition. The Second District held that under California law, the expert was limited to those areas he had testified to at his deposition. Id at p. 564-565.

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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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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.)

LEGAL PRINCIPLES

Since the doctrine of res ipsa loquitur is only a rule of circumstantial evidence and, if overcome, plaintiff still has the burden of proof on the ultimate issue of negligence, general instructions given on the issues and on the burden of proof when viewed together with instructions given on res ipsa loquitur as a matter of law do not prejudicially mislead a jury by preventing it from knowing which party had the burden of proof. McFarland v. Booker (1967) 250 Cal. App. 2d 402, 58 cal. Rptr. 417.

Since a res ipsa loquitur instruction permits the jury to infer negligence from the happening of an injury alone, there must be a basis either in common experience or expert testimony that when such an injury occurs, it is more probably than not the result of negligence. McKinney v. Nash, supra, at 436. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Blackwell v. Hurst (1996) 46 Cal. App. 4th 939, 54 Cal. Rptr. 2d 209 states that use of the res ipsa loquitur doctrine is especially suited to a medical malpractice setting in which the unwitting and often unconscious or semiconscious patient is at an evidentiary disadvantage because of his or her inability to demonstrate what occurred in the hospital or surgical room setting.

Such is the case here.

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The following blog entry is written to illustrate a common motion filed during the early stages 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 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.)

STANDARD OF REVIEW

Summary judgment and summary adjudication are to be granted only with great caution. (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266.) In reviewing a motion for summary judgment or summary adjudication, the court’s sole function is to determine from the submitted evidence whether there is a triable issue as to any material fact. (C.C.P. §437c(c); Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) The court should strictly construe the moving party’s evidence and liberally construe the evidence presented by the motion’s opponent. (Zavala at 926; Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627.)

Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Id., citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) If there is a triable issue, it is error for the trial court to grant summary judgment. (Doiichin v. Guerroero (1995) Cal.App.4th 1832, 1837.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A defendant has met its burden of showing that a cause of action or claim for damages has no merit only if he has shown that one or more elements of the cause of action or claim for damages cannot be established. (C.C.P. § 437c(p)(2).)

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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.

Despite the clear lack of expertise of Dr. Lee regarding the standard of care for plastic surgery and nursing, the clear designation of Dr. Lee, Dr. Lee’s deposition testimony that he had no such opinions, and the fact that they are acting in contradiction to their own motion and the Order of the Court, Defendant Smith now wishes to call Dr. Lee at trial and elicit opinions regarding the standard of care for the surgeon and hospital and whether same were violated.

Counsel for Defendant Smith cites to a declaration filed early in the action, in which Dr. Lee acknowledges he has no expertise regarding the standard of care for surgeons and hospital staff but nonetheless volunteers some opinions regarding a few surgeon issues and nursing matters. This declaration was submitted only to the Court in a law and motion matter, and not to a jury, and since Defendant Smith withdrew their motion for summary judgment, the matter was never ruled upon. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Whether Dr. Lee expressed any opinions in his declaration regarding the plastic surgeon’s and nurses’ standard of care, is a moot point. Clearly, he is not qualified to opine in these areas and it would be a blatant violation of California Evidence Code sections 720 and 801 to allow or to force Dr. Lee to testify regarding topics about which he is not a qualified expert.

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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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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.)

3. There is no argument that Ms. Smith was under the exclusive control of defendant when the injury occurred.

At all times during the surgery when the negligence occurred, Ms. Smith was under the sole care and control of Dr. Hall. Dr. Hall was the surgeon and captain of the ship . See Fields v. Yusuf (2006)144 Cal. App. 4th 1381,51 Cal. Rptr. 3d 277, which reasoned the test for exclusive control has become one of right of control rather than actual control, and a plaintiff need not identify the particular negligent person or the particular instrumentality that cause his or her injuries. When a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendant who had any control over his or her body or instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Also, a special relationship exists between a patient and a surgeon during surgery. The patient is usually unconscious rendering him or her helpless and vulnerable; the patient often has limited understanding of the surgical procedures and no ability to control what is happening; the patient has placed complete trust and confidence in the surgeon to exercise due care.

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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.)

The Court in Bird cited approvingly (at 921) the case of Golstein v. Superior Court (1990) 223 Cal. App.3d 1145, in which the plaintiffs were the surviving parents of a nine-year-old boy who died as the result of the negligent administration of an overdose of radiation while undergoing treatment for curable cancer.

Although they were present and witnessed the results of the negligent over-radiation, and although they observed the deteriorating and worsening condition of their son on a daily basis as well as his pain and suffering up to the time of death, the court of appeal held that the plaintiffs could not recover on a bystander theory because the plaintiffs did not experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury. Id. at 1427. 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.)

CACI (California Civil Jury Instructions) or BAJI (Book of Approved Jury Instructions) is a checklist of the substantive law in the civil actions covered thereby. These instructions indicate the elements that plaintiff must prove at trial to recover and these are usually the same elements plaintiff must plead to state a cause of action. Rutter Group: California Practice Guide: Civil Procedure Before Trial, Chapter 6 Pleadings.

The “facts” to be pleaded are those upon which liability depends — the facts constituting the cause of action. These are commonly referred to as “ultimate facts.” Doe v. City of Los Angeles, (2007) 42 Cal.4th 531, stating that the complaint will be upheld so long as it gives notice of the issues sufficient to enable preparation of a defense. Id. 549-550. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A complaint must allege the ultimate facts necessary to the statement of an actionable claim. It is both improper and insufficient for a plaintiff to simply plead the evidence by which he hopes to prove such ultimate facts. Careau & Co. v. Security Pac. Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.

B. Plaintiff’s Complaint Includes Each of the Elements Required In CACI 1621:

The 4th Cause of Action for Negligent Infliction of Emotional Distress by Plaintiff Thomas Lee states:

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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.)

FACTUAL SUMMARY

William Hill has difficulty controlling his anger. (See, Plaintiffs’ Separate Statement of Undisputed Material Facts) Many of his friends have told Sean that he has anger control issues. About a year before the subject crash, Hill was involved in a fistfight at a bar and gave the other combatant a bloody nose.

On September 21, 2008, William Hill and Sean Black were both traveling eastbound on Interstate 80. Sean saw Hill’s car in the rear view mirror, accelerating towards him and changing lanes. Hill, without using his turn signal or slowing down, cut Sean off, squeezing his car between a truck and Sean’s SUV. Sean immediately braked hard to give Hill more room. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Hill and Sean continued traveling eastbound on Interstate 80. At one point, when they were driving next to each other, Hill flipped Sean off. Moreover, Hill repeatedly cut off Sean.

Just before the collision, Hill leaned across his front passenger seat and shook his fist at Sean. At the same time, Hill was holding a cigarette and driving at 65 to 70 miles-per-hour. He made a sudden, jerking movement and his car swerved towards Sean’s SUV.

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