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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.)

SUMMARY JUDGMENT MUST BE GRANTED AS A MATTER OF LAW WHEN NO TRIABLE ISSUE OF MATERIAL FACT EXISTS

A motion for summary judgment must be granted if there is no triable issue as to any material fact. California Code of Civil Procedure §437c(c). The court has no discretion to refuse summary judgment where the evidence before the court discloses no triable issue as to any material fact; the moving party is entitled to judgment as a matter of law. Drasley v. Superior Court (1980) 101 Cal.App.3d 425, 427; see also Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759. Summary judgment is an efficient and expeditious method of disposing of unmeritorious cases. Judge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70 (holding that [i]t is in the public interest, including the court’s interest in the efficient and economical administration of justice and the parties’ interest in the prompt and affordable resolution of unmeritorious cases, to expeditiously rid the judicial system of a case in which a party is entitled to judgment as a matter of law, without requiring protracted litigation and a trial on the matter ).

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

The proper case for summary judgment is one in which the plaintiff cannot prevail because there is no substantial controversy as to any of the issues raised.

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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 note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Plaintiff May Not Offer Evidence of Lee’s Private Relationships and Conduct.

Defendants anticipate that Hill will attempt to prejudice the jury against Defendants by offering evidence relating to Lee’s non-work related sexual conduct, including relationships with men and other private conduct outside of the workplace. For example, in opposition to Defendants’ motion for summary judgment, Hill submitted a declaration in which she asserted, without foundation, that Lee ordered so many pornographic videos on his Directv account at home that his Directv account was repeatedly blocked by Directv …. (Hill Decl., filed in opposition to Defendants’ MSJ) In some cases, it is anticipated that Hill will seek to justify her proffer of certain evidence, by baldly claiming that she was at Lee’s private home for work meetings. (Hill Decl.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Any such evidence is irrelevant and unfairly prejudicial, and its introduction would violate Lee’s Constitutionally guaranteed right of privacy. The constitutional right of sexual privacy, both within and without the marital relationship, is a fundamental liberty arising from both the United States and the California Constitutions. The California right has been described as a protective zone of privacy “surrounding sexual behavior…” Boler v. Superior Court, 201 Cal. App. 3d 467, 473 (1987). Indeed, California accords privacy the constitutional status of an “inalienable right, on a par with defending life and possessing property.” Vinson v. Superior Court, 43 Cal. 3d 833, 841 (1987) (internal citations omitted).

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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 wrongful death 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.

Defendant’s Purported Negligence Was Not The Proximate Cause of Plaintiffs’ Alleged Injuries

Plaintiff must prove a proximate causal connection between the negligent conduct and the resulting injury. Bromme v. Pravitt (1992) 5 Cal.App.4th 1487, 1499; Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 611-612. Based on competent expert testimony, causation must be proven within a reasonable medical probability. As discussed by the Court in Bromme, there is a distinction between a reasonable medical probability and medical possibility. Bromme at 1499. There may be many possible circumstances, which can produce an injury or death. However, Plaintiffs must establish that Defendants’ negligence was the substantial factor in the injury or death. Id. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In medical malpractice cases, the evidence must be sufficient to allow the jury to infer that, in the absence of defendant’s negligence, there was reasonable medical probability that the plaintiffs would have obtained a better result. Morganroth v. Pacific Medical Center (1976) 54 Cal.App.3d 521, 533. Where the facts are undisputed and only one conclusion can be drawn, it is a question of law. See Hooks v. Southern California Permanente Medical Group (1980) 107 Cal.App.3d 435, 448 (court held that, while proximate cause is ordinarily a question of fact, when the facts are undisputed and only one conclusion can be drawn, it is a question of law).

Plaintiff’s injuries as set forth in the Complaint were not a result of any alleged negligence by Dr. Hal Smith. As discussed above, Dr. Hal Smith complied with the standard of care regarding Mr. Brown. As such, nothing Dr. Hal Smith did or failed to do caused the alleged injuries of Plaintiff.

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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 birth 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, 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.)

Following the Supreme Court’s holding in Baxter v. Superior Court (1977) 19 Cal.3d 461, the appellate court held such claims for loss of consortium by parents for an injury to a child are rejected. Id. 186 Cal.App.3d at 894. Thus, plaintiffs Karen and Thomas Smith cannot recover for any emotional distress regarding any concern for the child due to his alleged injuries or emotional distress for having to care for a child with the plaintiffs’ alleged injuries, or an inability to conduct their normal activities. Any claim for emotional distress due to an impaired relationship are clearly not recoverable because such claims would be based upon a loss of filial consortium and are thus irrelevant. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

CONCLUSION
Dr. Woo and Dr. Brown met the standard of care in performing the ultrasounds on this low risk patient in the same manner as OB/GYNs throughout the community do in an office-based obstetrical practice. There was no indication to perform a basic ultrasound to look for fetal anomalies in this case. Dr. Woo and Dr. Brown were not required by the standard of care to take measurements nor were they required to refer plaintiff Nancy Smith to a perinatologist (sub-specialist). Further, plaintiff Nicholas Smith’s hemimeganencephaly was not caused by the defendants, was not a result of the defendants’ care and treatment, and the condition was not capable of prenatal diagnosis.

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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.)

DEFENDANTS HAVE FAILED TO MEET THEIR BURDEN AND THEREFORE SUMMARY JUDGMENT MUST BE DENIED

Defendant submitted a Declaration by James Greene, M.D., to support the Motion for Summary Judgment. This “evidence” is insufficient, and therefore defendant’s motion must fail. The declaration is improper, lacks foundation, and constitutes improper opinion testimony. Dr. Greene completely ignores those portions of the medical records that do not support his contentions, e.g., that Dr. Hall lacked experience with this type of surgery; that defendants should have halted the procedure after several drops in blood pressure attributed to “tugging on the lead;” and that he was “captain of the ship.”

While expert opinions are given tremendous weight in Summary Judgment proceedings in medical malpractice cases, statements made without any notable foundation can not simply be accepted because they are made by a purported expert. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff is entitled to have a degree of scientific reliability applied to the defendants’ expert declarations. Mere statements without any explanation or foundation other than I’m the expert, trust me are not persuasive. These “experts” have not been deposed in order to discover the basis for their opinions, nor have they provided any such basis in their declarations. This testimony is inadequate for purposes of summary judgment as it does not meet any kind of scientific reliability standard. See, e.g., Daubert v. Merrill Dow Pharmaceuticals. Inc. 509 U.S. 579 (1993); Frye v. United States 293 F. 1013 (D.C. Cir. 1923).

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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 Bird v. Saenz (2002) 28 Cal.4th 910, 920, the California Supreme Court indicated that in order to maintain a cause of action for NIED on a bystander theory, one must not only witness the injury, but also have contemporaneous awareness of the cause of the injury. In Bird, the plaintiffs were the adult daughters of the decedent. Following a surgical procedure to the decedent, one of the daughters saw the decedent being rushed down the hallway, and she was “bright blue.” She witnessed hospital personnel running down the hallway to render treatment to the decedent. One physician told her “I think they nicked an artery or a vein, and it looks like all the blood went into her chest.” Id. at 913. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The California Supreme Court held that the plaintiffs did not have a cause of action, stating that the plaintiffs have not shown they were aware of the transection of Nita’s artery at the time it occurred. Nor have they shown they were contemporaneously aware of any error in the subsequent diagnosis and treatment of that injury in the moments they saw their mother rolled through the hall by medical personnel. Id. at 921-922. In the medical malpractice context, bystanders cannot sue for negligent infliction of emotional distress based on unperceived medical errors hidden within a course of treatment.

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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.)

Here, none of the prior accidents involved his left knee or nerve damage to his right arm and shoulder, as alleged in this action. Further, the closest prior accident was over two years before the present accident and, thus, remote. Moreover, none of Defendants’ experts opine that the prior accidents were a substantial factor in causing his accident injuries. Accordingly, as set forth in Downing, evidence of Mr. White’s prior motor vehicle incidents would be irrelevant and certainly be more prejudicial than probative. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

DEFENDANTS CANNOT IMPEACH PLAINTIFF ON AN IRRELEVANT, COLLATERAL MATTER
As also set forth in Downing, defendants cannot attempt to impeach Mr. White’s testimony regarding prior motor vehicle incidents as the matters are irrelevant and, therefore, collateral. A party may not cross-examine a witness upon collateral matters for the purpose of eliciting something to be contradicted … This is especially so where the matter the party seeks to elicit would be inadmissible were it not for the fortuitous circumstance that the witness lied in response to the party’s questions. People v. Lavergne (1971) 4 C3d 735, 742; Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1030, 1034. Moreover, the Court can disallow such alleged impeachment due to the impeachment’s probative value being substantially outweighed by its prejudicial effect or its undue consumption of time. Ev.C. § 352; Lavergne, 4 Cal.3d at 742. (See Part 5 of 5.)

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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.)

STATEMENT OF FACTS

Plaintiffs’ decedent, Kim Smith, was admitted to Memorial Medical Center on November 7, 2008, by Dr. Phillip White for replacement of a cardiac-resynchronation implantable defibrillator (CRT-D) pulse generator that had reached the battery’s elective replacement indicator. Insertion of a coronary sinus lead for left-ventricular pacing was also planned. The previously implanted system consisted of a Medtronic Model 7277 InSync Marquis pulse generator, Model 5076 transvenous atrial lead, Model 6947 transvenous right-ventricular lead, and Model 5071 epicardial left-ventricular lead. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On November 8, 2008, Dr. White performed a CRT-D generator replacement (with a Medtronic Model C154DWK Concerto generator), pocket revision, and removal of lipoma. The coronary sinus was cannulated, but no lead was deployed because the target vessels were too small. No complications were noted. Postoperatively, Ms. Smith did not exhibit any signs or symptoms of infection. She was discharged home on November 10, 2008.

Subsequent to her discharge from Memorial Medical Center, Ms. Smith was seen in office for a follow-up by her general practitioner, Dr. Hernandez. On November 15, 2008, Dr. Hernandez diagnosed Ms. Smith with left chest wall wound infection and prescribed her Rocephin and Keflex. Dr. Hernandez continued to follow Ms. Smith in his office on November 18, November 25, November 27, November 30, and December 7, 2008. On December 20, 2008, Ms. Smith presented to the Emergency Room at Memorial Medical Center with complaints of redness and pain at the site of the CRT-D pulse generator. She was diagnosed with an infected CRT-D pocket and cellulitis.

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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.)

The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) Because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts (Sinz v. Owens (1949) 33 Cal.2d 749, 753), expert testimony is required to prove or disprove that the defendant performed in accordance with the standard of care unless the negligence is obvious to a layperson. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)

However, the expert testimony must be based on such matter as may be reasonably relied upon by an expert in forming an opinion on the subject. (Ibid.) With regard to a standard of care derived from a professional practice the induction of a rule from practice necessarily requires the production of evidence of an ascertainable practice. (Wheeler v. Bd. of Forestry (1983) 144 Cal. App.3d 522, 528, fn. 5.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FAILURE TO MEET THE PREVAILING STANDARD OF CARE IN A MEDICAL COMMUNITY IS GROUNDS FOR MALPRACTICE
As is stated in Brown v. Colm (1974), 11 Cal. 3d 639; 114 Cal. Rptr. 128, the Supreme Court held that proof of the standard of care is ordinarily provided by another physician, and if a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes to the weight of his testimony rather than its admissibility. 114. Cal. Rptr., at 130.

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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 wrongful death 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.

Defendants Did Not Breach The Standard of Care

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844; Landeros v. Flood (1976) 17 Cal.3d 399, 410; see BAJI 6.00.1. In the absence of any evidence that Defendant breached the standard of care, Defendant is entitled to judgment as a matter of law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Smith’s care and treatment of Mr. Brown complied with the standard of care. It was not unreasonable for Dr. Smith to allow the patient to leave the emergency room. The patient was oriented to person, place, and time. His vital signs were normal and he showed no signs of medical distress. Therefore, the patient should not be detained when he refused an examination and wanted to leave the hospital. Moreover, Mr. Brown was not in custody pursuant to § 5150 of the Welfare and Institutions Code. Either the police or a psychiatrist can issue such a hold. In following, only a police officer or a psychiatrist can release a patient who is under such a hold.

In the event a patient is held pursuant to § 5150, a form is filled out by the police officer or psychiatrist, which then becomes part of the patient’s chart. The form indicates that the patient is a danger to themselves and others.

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