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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 establish the causation element of a negligence claim since plaintiffs cannot show any act or omission on the part of Memorial Medical Center, its employees or agents, caused or contributed to plaintiff’s alleged injuries or damages.

A. Summary judgment should be granted since no act or omission on the part of Memorial Medical Center employees caused or contributed to plaintiff’s alleged injury or damage:

A cause of action for negligence requires evidence of the legal duty to use due care, a breach of the legal duty, and that the breach is a proximate cause of the resulting injury. 6 Witkin, Summary of California Law, Torts, Section 732 (9th Ed. 1988). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

An essential element of a negligence cause of action is that defendant’s negligence was a substantial factor in causing plaintiff’s harm. CACI400 (2009). A cause “only becomes probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was the result of its action. Ibid. See also Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403.

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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.)

2. Plaintiffs have produced testimony that the injury suffered by appellant ordinarily does not happen in the absence of negligence

Plaintiffs’ expert has testified that the damage sustained by the deceased plaintiff would not ordinarily have occurred unless someone was negligent.

Plaintiffs submit that from the testimony of plaintiffs’ expert (and defendant doctor himself) the outcome of Ms. Smith’s surgery was unacceptable and would not have usually or ordinarily have happened. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that in the light of past experiences it can be said it was probably the result of negligence by someone and that defendant is probably the one responsible. McKinney v. Nash (1981) 120 Cal. App. 3d 428, 174 Cal. Rptr. 642.

To constitute a res ipsa loquitur situation where the question whether the accident was probably the result of negligence is not a matter of common knowledge among laymen, such as one involving the inadvertent suturing of a ureter in a hysterectomy operation, such probability must be based on expert testimony, not in any particular language, but sufficient to support an inference of negligence from the happening of the accident alone. Tomei v. Henning (1967) 67 cal. 2d 319, 62 Cal. Rptr. 9,431 P. 2d 633.

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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.)

Plaintiff’s Motion in Limine to Exclude any Reference or Comment by Defendants’ Expert Witness Nancy Black, M.D. and of Any Other Witness that Emma Smith’s Delay in Diagnosis Was Contributed to or Caused by Her Mother’s Failure to Return to Defendant Dr. Hill or Other Physicians

Plaintiff Emma Smith, through her Guardian as Litem, Sabrina Smith, brings the following motion in limine and requests that the court order as follows:

1. To exclude any and all comments concerning Sabrina Smith’s failure to return Emma to the treatment of Dr. Hill or other health care providers;
2. To exclude any and all comments or opinions Emma would have been diagnosed sooner if she had returned to Dr. Hill or other health care providers;
3. To order defendant counsel to caution his witnesses as to the above referenced rulings;

4. To order defense counsel to approach the bench and make an offer of proof prior to soliciting any testimony that could elicit such an opinion or comment.

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

INTRODUCTION
This case involves the failure to appropriately diagnose and treat an eight year old child, Emma Smith, for a primary dystonia, dopa responsive dystonia (DRD). The child, Emma, from the age of eight years and one month through age twelve years and four months, became progressively disabled as a result of this treatable and reversible disease. During this time frame she was cared for by her parent, Sabrina Smith.

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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.

On March 27, 2008, Dr. Lee was designated by Plaintiff Ana Black to testify regarding anesthesiology issues, including the standard of care and causation issues pertaining to anesthesiology. Nowhere was there any designation/declaration that Dr. Lee would testify regarding the standard of care for surgeons or nurses, or whether the plastic surgeon or nurses in the present case complied with the applicable standard of care. The obvious reason was that Dr. Lee is an anesthesiologist, not a plastic surgeon or a nurse, and he is not qualified to render an opinion in these other fields of medicine.

Likewise, Defendant Smith’s expert, Dr. Greene has similarly stated that he is neither an expert regarding the standard of care for surgeons or nursing, and that he does not intend to give any opinions in these areas. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On April 16, 2008, Dr. Lee was deposed, and not only once, but twice, testified that he would not be giving testimony regarding the standard of care of the surgeon or the hospital.

Q. Do you intend to give testimony as to the standard of care as it applies to Dr. Goldberg, the plastic surgeon?

A. No.

Q. Do you intend to give standard of care testimony with respect to the hospital?
A. No.

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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.

Plaintiff Ana Black’s Memorandum of Points and Authorities in Opposition to Defendant Smith’s Intent to Elicit Improper Opinion Testimony from Richard Lee, M.D.

Plaintiff Ana Black, a minor, by and through her Guardian Ad Litem, Madeline Black, respectfully submits the following memorandum of points and authorities in opposition to Defendant Smith’s expressed intent to elicit expert opinions from Plaintiff’s expert, anesthesiologist Richard Lee, M.D., regarding the applicable standard of care for plastic surgeon Donald Goldberg, M.D., and the nursing staff of Memorial Hospital (hereinafter “MH”), and to opine regarding whether same complied with their applicable standard of care. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

INTRODUCTION

Plaintiff’s expert, Richard Lee, M.D., is a highly qualified anesthesiologist. He is Board Certified in anesthesiology. He has a long history in this field, and the entirety of his practice of medicine has been limited to anesthesiology and pain medicine.

Dr. Lee is not a plastic surgeon or a nurse; he has never been board certified in either of these two fields. He has no education, residency or internship in these fields; he has never received any training in these fields, and has never worked in either field.

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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.)

DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW AS PLAINTIFFS’ CLAIM HAS NO MERIT

Summary judgment is proper if there is no merit to plaintiffs cause of action. California Code of Civil Procedure §437c(a). A cause of action has no merit if one or more of the elements of the cause of action cannot be established. California Code of Civil Procedure §437c(o)(1). The essential elements to establish a claim of medical negligence are (1) a legal duty to use due care; (2) a breach of such legal duty; and (3) the breach as the proximate or legal cause of the resulting injury. 5 Witkin, Summary of California Law (9th Ed.), Torts § 732, p. 60. A defendant is held liable for a plaintiffs’ injuries only if plaintiff establishes the above three elements. Id. (emphasis added). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant is entitled to summary judgment if it can disprove at least one essential element of plaintiff’s claim for negligence, as provided by California Code of Civil Procedure § 437c(o)(2):
“A defendant or cross-defendant has met his burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”

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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’ Memorandum of Points and Authorities in Opposition to Motion for Summary Adjudication
INTRODUCTION

Sean Black is suing defendants William Hill (“Hill”) and Liquor Products, Inc. (“L-P”) for the serious neck and back injuries he suffered when the car driven by William Hill struck Sean Black’s SUV at highway speeds, causing Sean’s SUV to violently roll over three times, crushing its roof in the process. Sean’s wife Carrie Black has a loss of consortium claim. William Hill was employed by L-P and was within the course and scope of employment when the collision took place.

This motion should be denied on both substantive and procedural grounds. Substantively, defendant Hill brings this motion on the grounds that there is no evidence to support plaintiffs’ request for punitive damages. The motion should be denied because ample evidence exists to show that defendant Hill acted with malice, oppression, and a willful and conscious disregard of the safety of Sean Black. Just before the subject collision, defendant Hill consciously and recklessly cut off Sean repeatedly, drove erratically, swerved towards Sean, and shook his fist at Sean, all while holding a cigarette and traveling at 65 to 70 miles-per-hour.

Defendant Hill’s motion must also be denied on substantive grounds because he incorrectly argues that punitive damages are allowable only if the defendant intended to injure the plaintiff. Neither statutory nor case law supports this baseless requirement. 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 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.)

ALTHOUGH THE BURDEN ON THIS MOTION SHOULD NOT SHIFT TO PLAINTIFF SINCE DEFENDANT HAS NOT MET HIS INITIAL BURDEN, IF THE COURT FINDS OTHERWISE THE MOTION MUST STILL BE DENIED AS TRIABLE ISSUES OF FACT EXIST

Although plaintiffs contend that due to defendant’s deficient motion the Court need not reach analysis of plaintiff’s respective burden under CCP§437c, even if this were the case the motion must still fail.

Expert testimony is required in medical malpractice cases to establish the standard of care required of the physician under the circumstances. Flowers v. Torrance Memorial Hospital (1994) 8 Cal 4th 992, 1001. Expert testimony is also required on the issue of causation. Jones v. Ortho Pharmaceutical Corp (1985) 163 Cal App3d 396, 402, 405.

The Declaration of Dr. Michael Lee submitted by plaintiffs provides expert opinion that defendants acted below the standard of care and caused decedent injury. This is in direct conflict with the Declaration submitted by defendant and therefore there are triable issues remaining on standard of care and causation that must be left for trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

DR. HALL’S LIABILITY UNDER DOCTRINES OF RES IPSA LOQUITUR AND “CAPTAIN OF THE SHIP”
This is a medical malpractice case where plaintiff went into surgery for a laser lead removal procedure and did not survive. This is a classic example to the type of case for which the res ipsa loquitur instructions were designed.

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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.)

Mr. White testified in deposition that he had not been in any prior motorcycle accident. (Jones Dec, Exh. 6 at p. 15.) Here, not only is the existence of a possible prior motorcycle accident irrelevant, but plaintiff was not in a prior motorcycle accident. Indeed, Mr. White avoided an accident by spilling off his bike before a car accident occurred. Id., Exh. 3. Thus, it is not impeachment to begin with. Plaintiff need not go to such lengths to address an irrelevant matter.

Independently, Dr. Brown alleges that Plaintiff denied prior motor vehicle accidents in his examination. Id., Exh. 5 at p. 3, 23. What potentially matters to Dr. Brown is the existence of the accidents, which he knows about, not Plaintiff’s alleged denials of the accidents. Dr. Brown is a medical expert, not a character witness. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Moreover, nobody’s statements during the examination were under oath or recorded by a court recorder. Thus, it is nearly impossible to prove the falsity of Dr. Brown’s statement. In fact, to try and disprove Dr. Brown’s statements, Plaintiff would be forced to call, among others, his counsel, who attended the examination. If Dr. Brown is allowed to testify as to these alleged denials, a defense medical examiner could literally say anything about conversations with a Plaintiff without fear of reprisal. That is not the law in California.

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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.)

PLAINTIFF HAS PLEADED EACH OF THE REQUIRED ELEMENTS FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)

A. Elements to Be Proven re Bystander NIED:

California Jury Instructions (CACI)Civil 2008 gives the elements required to be proven in a bystander negligent infliction of emotional distress case. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

CACI 1621: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
BYSTANDER NIED – ESSENTIAL ELEMENTS:

[Name of plaintiff] claims that [he/she] suffered serious emotional distress as a result of perceiving [[an injury to] [the death of] [name of injury victim]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] negligently caused [ [injury to] [the death of] ] [name of injury victim];
2. That [name of plaintiff] was present at the scene of the injury when it occurred and was aware that [name of injury victim] was being injured;
3. That [name of plaintiff] suffered serious emotional distress; and
4. That [name of defendant]’s conduct was a substantial factor in causing [plaintiff’s] serious emotional distress.

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