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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.)

Plaintiffs’ Opposition to Demurrer by Defendant Darren White, M.D.; Memorandum of Points and Authorities in Support Thereof

Plaintiffs Ethan Lee, a minor, parents Kathleen Lee and Thomas Lee (“Plaintiffs”), oppose the demurrer of Defendant Darren White, M.D. (“Defendant”), to the Fourth Cause of Action brought by plaintiff-father Thomas Lee for negligent infliction of emotional distress, on the following grounds:

1. The complaint and the 4th cause of action allege each of the elements required for bystander negligent infliction of emotional distress to Thomas Lee, who is the father of the minor child Ethan Lee and the husband of Kathleen Lee, and whom witnessed the negligent acts upon his child and wife.

2. The opposition will be based on this notice, the accompanying Memorandum of Points and Authorities and all of the pleadings and records on file in this action, together with such other and further evidence, as may be presented at the hearing of the demurrer. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
This is an action for medical malpractice during labor and delivery of infant Ethan Lee and his mother who were injured during labor and delivery.

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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.)

ARGUMENT
EVIDENCE OF MR. WHITE’S PRIOR MOTOR VEHICLE INCIDENTS ARE INADMISSIBLE AS IRRELEVANT
Evidence of Mr. White’s prior motor-vehicle incidents is inadmissible as they are irrelevant. The general rule regarding inadmissibility of plaintiff’s prior accidents was discussed in Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 525 when the Court stated:

Generally, evidence that a litigant was involved in a prior accident is inadmissible when its only purported relevance is to show a propensity for negligent acts, thus enhancing the probability of negligence on the occasion in suit. (Prichard v. Veterans Cab. Co., 63 Cal.2d 727 [47 Cal.Rptr. 904, 408 P.2d 360]; Travis v. Southern Pacific Co., 210 Cal.App.2d 410 [26 Cal.Rptr. 700]; George v. Kleinbrodt, 206 Cal.App.2d 224 [23 Cal.Rptr. 822]; Shmatovich v. New Sonoma Creamery, 187 Cal.App.2d 342 [9 Cal.Rptr. 630]; 1 Wigmore on Evidence (3d ed. 1940) § 199; McCormick on Evidence (2d ed. 1972) § 189; Witkin, Cal. Evidence (2d ed. 1966) § 350.)

The policy basis of this prohibitory rule rests on the fact that the probative force of this kind of evidence is too slight to overbear the dangers of prejudice, distraction by side issues, and unfair surprise (Wigmore, op. cit.). (8) While evidence of a prior accident is admissible to show that a present physical condition has a cause antecedent to the accident being litigated (Johnson v. Matson Navigation Co., 163 Cal.App.2d 336 [329 P.2d 375]; Browning v. King, supra, 159 Cal.App.2d 326), here there was no reason to admit such evidence; it had no probative value as plaintiff was not claiming kidney damage as a result of this accident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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.)

As will be discussed more fully below, and in the declaration of defendant’s expert, Dr. Stanley Choo, no act or omission on the part of Memorial Medical Center employees caused or contributed to any injury or damage to the plaintiffs’ decedent, Ms. Smith. The infection that occurred subsequent to Ms. Smith’s surgery is a known risk of the procedure and a risk that can occur in the absence of negligence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further, as is set forth in the declaration of Deborah Wong, infection control officer for Memorial Medical Center, 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). The Department of Public Health determined that none of the adult patients infected with Pseudomonas at Memorial Medical Center in November and December 2008 were infected with the same strain of Pseudomonas that occurred in the NICU. Therefore, Ms. Smith’s Pseudomonas infection was not related to the “outbreak” of Pseudomonas in the NICU in 2008, as alleged by the plaintiffs in this case.

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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.

ARGUMENT
SUMMARY JUDGMENT LEGAL STANDARD

Summary judgment shall be granted if the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. Cal. Code of Civ. Proc. §437c; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579. A Defendant is entitled to summary judgment if they show one or more elements of the Plaintiff’s case cannot be established or that they have a complete defense to the cause of action. Cal. Code Civ. Proc. § 437c(o)(2); Alszeh v. Home Box Office (1998) 67 Cal.App.4th 1456, 1460. Once the Defendant meet their initial burden, the Plaintiff must demonstrate, by submitting admissible evidence of specific facts that a triable issue of material fact exists. Id. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFF’S CLAIM FOR MEDICAL NEGLIGENCE LACKS MERIT
Elements Required for Actionable Negligence
In any medical malpractice action, the Plaintiff must establish: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. The Defendant does not need to disprove every element of Plaintiff’s cause of action. Rather, the Defendant only need to present evidence that one or more of the elements of the cause of action for negligence cannot be established. Union Bank v. Los Angeles County Superior Court (1995) 31 Cal.App.4th 573, 583.

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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.)

A defendant moving for Summary Judgment has the burden of presenting facts to negate an essential element of each cause of action or to show there is a complete defense to each cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Where, as here, the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that the material fact was true. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

In this case, plaintiff has the burden of proving by a preponderance of the evidence that defendants’ treatment fell below the standard of care. To be entitled to Summary Judgment in their favor, defendants were required to present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care. Only if defendants were successful in meeting this burden does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) 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.)

As a result of the Incident, Mr. White suffered from and continues to suffer from various injuries and damages, including, but not limited to, nerve damage down his right shoulder and arm, a partially torn left anterior cruciate ligament, and ongoing meniscus damage in his left knee. (The meniscus is a crescent-shaped cartilage pad between the two joints formed by the femur (the thigh bone) and the tibia (the shin bone).)

Plaintiff already underwent one surgery on his left knee due to his injuries, and his treating orthopedic surgeon opines that Eli, at a minimum, will need ongoing, lifetime care for his knee, will suffer from early onset arthritis, and will need a total knee replacement in his lifetime. Moreover, the nerve damage in his right shoulder and arm is permanent. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Before this Incident, Mr. White was involved in three minor motor vehicle incidents. On or around August 11, 1998, Mr. White ran over a tire in his car. He was seen at University Hospital and diagnosed with a neck and back sprain. (See Declaration of Paul Jones.) On November 14, 2001, Mr. White was rear-ended in his car and felt pain to his left shoulder and lower back. (Jones Decl.) On July 24, 2005, to avoid an accident with a motor vehicle. Mr. White slid off his motorcycle and cut his right hand and bruised his right knee. Id. None of these accidents injured his left knee and/or right arm and shoulder, which are the body parts and injuries at issue in this action.

On May 5, 2009, Mr. White underwent a defense medical examination by Defendants’ expert, Michael Brown, M.D. In his report, Dr. Brown claims that Plaintiff “denies any previous motor vehicle accidents.” Id., Exh. 5 at p. 3, 23.

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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 purported comments made by Lee relating to race, national origin and religion. Hill is a Caucasian female who is claiming only gender based harassment and discrimination. Nevertheless, it is anticipated that Hill will attempt to sway the jury with testimony of purported racist and anti-Semitic remarks made by Lee. Evidence of any such remarks is manifestly irrelevant and unfairly prejudicial and should be excluded. See e.g. Galarraga v. Marriott Employees FCU, 70 F.E.P. Cases 1605, 1610 (D. Md. 1996) (in granting defendant employer’s motion for summary judgment on plaintiff’s claim of gender discrimination under the Equal Pay Act ( EPA ), the Court held that evidence of comments regarding plaintiff’s accent would demonstrate national origin-based animus rather than gender-based animus, and would not raise a reasonable inference of gender discrimination, and is, therefore, irrelevant to plaintiff’s claim). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

See also, McClain v. Mack Trucks. Inc., 85 F.R.D. 53, 63 (E.D. Penn. 1979) (limiting discovery on motion to compel to evidence of racial discrimination on the ground that [w]hether [defendant] discriminates against employees on the basis of religion, creed, gender or national origin is wholly irrelevant to [plaintiff’s] present claim of racial discrimination).

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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.)

In Foy v. Green Blott (1983) 141 Cal.App.3d 1, a disabled and incompetent woman became pregnant and brought an action against her guardian and the physicians at the mental facility where she resided. The appellate court held in part that with respect to plaintiff’s cause of action alleging depravation of a normal parent-child relationship, plaintiff could not recover. Foy, Id. 141 Cal.App.3d at 7. As the court stated:

Losses of parental or filial consortium are not actionable. “[T]he inadequacy of monetary damages to make whole the loss suffered, considered in light of the social cost of paying such awards constitutes a strong reason for refusing to recognize the asserted claim ….” The distinction claimed by plaintiffs actually aggravates the problems of ascertaining damages as these actions would require comparison of plaintiffs’ impaired relationship with a hypothetical normal parent-child relationship rather than with any actual relationship existing before the tort. Foy, Id. 141 Cal.App.3d at 7. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, the court in Foy following Turpin held that general damages could not be awarded for the creation of an impaired parent-child relationship in place of no relationship at all. Foy, Id. 141 Cal.App.3d at 7.

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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.

STATEMENT OF FACTS
The Emergency Medical Service Report of April 18, 2006, noted that Plaintiff David Brown

(“patient”) was ticketed by police at the airport while on his way to Los Angeles. The paramedics arrived while Mr. Brown was in the custody of airport police and he was belligerent, uncooperative, and possibly intoxicated. It appears that Mr. Brown did not have a medical complaint. However, the police just wanted to check [the] patient before arrest. Therefore, Mr. Brown was taken to the emergency room at RMC. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On April 18, 2006, while the patient was in the emergency room, he was noted to be combative, uncooperative, and abusive. He was first seen by the emergency room physician, Dr. Owen Hill at approximately 1900 hours. Dr. Hal Smith noted ethanol intoxication as an impression, but the patient was allowed to leave the emergency department pursuant to his request because he refused a physical examination.

After being in the emergency room for approximately one hour, the patient left against medical advice, but refused to sign the form indicating that he was leaving against medical advice. Dr. Smith noted that the patient was awake, alert, fully oriented and ambulatory at the time of discharge. Mr. Brown was not booked by the police and was transferred to his residence.

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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.)

Motion for Summary Judgment; Memorandum of Points and Authorities in Support

Defendant MEMORIAL MEDICAL CENTER, will move this Court for an Order granting summary judgment in their favor and dismissing, with prejudice, Plaintiffs’ Complaint on file herein.

INTRODUCTION

This is a wrongful death/product liability/medical malpractice action against Memorial Medical Center and others in connection with the death of plaintiff’s decedent Kim Smith at University Hospital on January 19, 2009. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Ms. Smith underwent surgery by co-defendant, Dr. Phillip White at Memorial Medical Center in November 2008, for replacement of a pacemaker generator and defibrillator device (CRT-D). (Dr. White was not an employee of Memorial Medical Center.)

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