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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.)

GENERAL LAW OF SUMMARY JUDGMENT

The court’s sole function on a Motion for Summary Judgment is issue finding … not issue determination. The law and motion judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” Code of Civil Procedure §437(c)(d); Weil and Brown, Civil Procedure Before Trial (1992), pages 60-65.

The function of a trial Court on a Motion for Summary Judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. Molko v. Holy Spirit Association (1988), 46 Cal. 3d 1092; 252 Cal. Rptr. 122.

If there is a single issue of fact in conflict, the motion must be denied (emphasis added). Versa Technologies. Inc. v. Superior Court (1978), 78 Cal. App. 3d 237; 142 Cal. Rptr. 570. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A material fact is a fact which must relate to some claim or defense in issue under the pleadings. Also, it must be essential to the judgment, or if proved, would change the outcome of the case. Pettus v. Standard Cabinet Works (1967), 249 Cal. App. 2d 64; 57 Cal. Rptr. 207.

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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 FOURTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)

This is an action for injury to the minor plaintiff occurring during his delivery and birth. The defendant is not demurring to the first three causes of action for medical negligence brought by the minor plaintiff and his mother. The defendant is not demurring to the fifth cause of action for loss of consortium brought by the father.

However, the fourth cause of action for NIED on a bystander theory by the child’s father, Thomas Lee, does not state facts sufficient to constitute a cause of action, because it does not set forth facts demonstrating that the father had contemporaneous awareness of the injury at the time it occurred and knew the negligent cause of that injury at that time. 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 elder abuse case and its proceedings.)

It is also worth noting that situations similar to those described in this medical negligence 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 HAS ALLEGED SUFFICIENT FACTS OF PUNITIVE DAMAGES

In passing on the correctness of a ruling on a motion to strike, the allegations of the complaint must be read as a whole, all parts in their context, and the court must assume the truth of the allegations. Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91. In ruling on a motion to strike, courts do not read allegations in isolation. Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Civil Code §3294(a) provides that when a defendant is guilty of oppression, malice or fraud, plaintiff may recover punitive damages. Civil Code § 3294(c) defines the terms malice and oppression:

(1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

Under Civil Code §3294, the terms willful, malicious, and oppressive are the statutory description of the type of conduct which can sustain a claim for punitive damages. [W]here the complaint pleads sufficient facts to apprise the defendant of the basis upon which relief is sought and to permit the drawing of appropriate legal conclusions at trial, absence of the labels willful, malicious, and oppressive from the complaint, does not defeat the claim for punitive damages. Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.

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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.)

Plaintiff Eli White’s Motion in Limine No. 1: To Exclude Evidence of Prior Accidents
INTRODUCTION

Defendants may attempt to introduce evidence or testimony that Plaintiff Eli White was in motor vehicle/motorcycle accidents before the at-issue accident on November 18, 2008. Such evidence should be excluded because California authority holds that evidence of plaintiffs’ prior accidents is inadmissible, generally, and certainly when none of the prior accidents involved the type of injuries at issue in the action. Moreover, impeachment regarding irrelevant and inadmissible prior accidents is improper. As that is precisely the case at present, there should be no evidence or argument regarding any motor vehicle incident Plaintiff was involved in previously. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

STATEMENT OF FACTS

This case involves a November 18, 2008, motor-vehicle incident at a four-way intersection at Broadway and 19th Street in Sacramento, California (the “Incident”).

Defendant Lee, heading east on Broadway, approached the intersection facing a stale red light yet blew through the light and into a busy intersection at 25 miles per hour. As he entered the intersection, Plaintiff Eli White, lawfully traveling south on 19th Street on a green light, slammed into the left side of Defendant Lee’s automobile in the intersection. Upon impact, Mr. White vaulted over his motorcycle, landed on the hood, and rolled down onto the street. (See Part 2 of 5.)

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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 Owen Hill, M.D.’s Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support

Pursuant to Section 437c of the California Code of Civil Procedure, this summary judgment motion is brought on the grounds that there is no genuine issue of material fact and that Defendant is entitled to judgment as a matter of law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the Separate Statement of Undisputed Facts, all documents on file herein, and upon such other argument or evidence as may be presented to the Court at or prior to the hearing on this motion.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
On April 14, 2008, Plaintiff David Brown filed a Complaint against Defendant Owen Hill, M.D., along with co-defendant Regional Medical Center (“RMC”). The complaint purports a cause of action for medical negligence against both defendants regarding his emergency room presentation at the hospital on April 18, 2006. Specifically, Plaintiff contends that “Defendants’ actions were a violation of [S]ection 5150 of the Welfare and Institutions Code.” Plaintiff further contends that Defendants failed to “give a complete diagnosis, to inform Plaintiff of his condition and to treat Plaintiff while defendants had Plaintiff in their care and custody.”

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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.)

Ms. Smith was a relatively young (44 years) woman with three minor children who had recovered from her cardiomyopathy. Her previous echo was normal and she was asymptomatic. She did not require continued use of a defibrillator. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Use of lasers to extract leads requires experience and judgment to make the determination as to how much pulling to use on a lead, how long to pull on a lead, etc. Dr. Hall had never performed this procedure and Dr. Stephen Lee had only performed it 6-7 times per his deposition. Dr. Hall has responsibility for Ms. Smith’s death as captain of the ship . He was monitoring the blood pressure, and he was the surgeon in charge. Per standard of care Dr. Hall should have halted the procedure when complications arose and if necessary obtain cardiology consultation to evaluate the situation and take the proper steps. Continuing the procedure caused the major injury to the vessels which led to Ms. Smith’s death. The defendant physicians were not sufficiently experienced to perform this procedure.

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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 elder abuse case and its proceedings.)

It is also worth noting that situations similar to those described in this medical negligence 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 UNCERTAINTY ARGUMENT FAILS

When a demurrer is made upon the ground of uncertainty, National was required to specify exactly how and why the pleading is uncertain and where such uncertainty appears. Good practice requires reference to page and line. See, Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809. As noted in the treatise, California Practice Guide, Civil Procedure Before Trial, (TRG 2009) 7:88:1, page 7(1)-38, Although not specifically required by CRC 3.1230(a), a demurrer for uncertainty should refer by page and line number to the particular allegations or part of the pleading that is uncertain. Plaintiff should not have search or guess. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant sets forth in its notice, but does not provide any argument in its Points & Authorities, that the first cause of action is uncertain, without citing to any page or line, as to facts of defendant’s officer, director or managing agent’s reckless conduct. As discussed above, to meet the standard of Civil Code §3294(b), plaintiff has the option of pleading that Defendant’s officer, director, or managing agent had advance knowledge of the unfitness of individual employees and employed him/her with a knowing disregard of the rights or safety of others or Defendant’s officer, director, or managing agent ratified the conduct of defendant’s employees. The issue is the sufficiency of the facts of defendant’s ratification of what this court has already held are sufficiently stated facts of defendant’s staff’s reckless neglect of Mr. White.

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(Please also 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.)

U.S. Supreme Court Standard

Wainright v Witt, (1985) 496 US 412 held the standard for exercising a challenge for cause is whether the jury may be “substantially impaired” from following the law. A question of whether the juror can “follow the law” is insufficient to meet this standard. Most jurors try to be fair and most will say that they can follow the law. And, indeed jurors usually use their best efforts to comply with their duties. But, there may be circumstances of a specific case or a specific rule of law in which the juror may try to follow the law, but is impaired from doing so, by virtue of their knowledge, training, experience, or other factors. The parties in personal injury cases are entitled to know about jurors who have no impediments to applying the law as instructed by the court, not jurors who may try and fail to comply.

Trial Counsel Must be Given Latitude to Discover Bias

In considering the challenges for cause, California has detailed provisions for challenges. There are three grounds for a challenge for cause: 1) general disqualification, which disqualifies the juror from serving in the action on trial; 2) implied bias, as, when the existence of the facts as ascertained, in judgment of law disqualifies the juror; or 3) actual bias, when a state of mind exists on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party. (CCP §225, (b)(1)(A), (b)(1)(B), and (b)(1)(c). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A challenge for implied bias may be taken for one or more of the following causes:

(e) Having an unqualified opinion or belief as to the merits of the action founded upon knowledge of its material facts or of some of them.

(f) The existence of a state of mind in the juror evincing enmity against, or bias towards, either party. (CCP §229.)

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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.)

Major Evidentiary Issues

Defendants intend to file a number of motions in limine directed at Hill’s anticipated evidence. Defendants anticipate the following major evidentiary issues:

Plaintiff may not offer evidence of speech or conduct that was not directed at her or other female employees. Plaintiff apparently hopes to prove her harassment claims with evidence that Lee engaged in vulgar banter with his female, non-employee friends, that Hill overheard and by which she was offended. However, Hill cannot rely on such evidence because it is (1) irrelevant to her harassment claim under Lyle v. Warner Brothers because it was not directed at her or other female employees “because of” gender, and was welcomed by (and non-harassing of) the women to whom the speech was directed; and (2) Lee’s non-directed speech is protected by his right of free speech, particularly where some of the speech occurred at social dinners and outside of the workplace.

Further, see Title 2, California Code of Regulations 7287.6 (DFEH’s regulations provide that the rights of free speech and association shall be accommodated consistently with the intent of this subsection. ); DeAngelis, 51 F.3d at 596-97; Saxe, 240 F.3d at 204, 206. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins. (See Part 9 of 10.)

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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.)

Decedent was scheduled for pacemaker and lead extraction secondary to the infection at Memorial by surgeon David Hall, M.D., on January 19, 2009. This was a percutaneous laser lead extraction.

Surgery began at 1532, with purulence encountered in the pseudocapsule. The generator was explanted, and around 1655 problems began. There is a handwritten note at 1700 stating there was easy removal of A-lead, but there were problems with the V-lead. Decedent had sudden loss of blood pressure which improved with released traction, but then dropped again. The surgeons apparently attributed the drop in blood pressure to tugging on the lead. The procedure continued producing another sudden drop in blood pressure and which point sternotomy was performed.

The decision was made to open up decedent’s chest. There was absolutely no blood in the pericardium. Right chest was filled with blood. Large bore catheters were placed including one on the atrium. Rapid blood and fluid infusion was implemented. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On exploration, Dr. Hall found shearing of the right subclavian vein, innominate vein and complete shredding of the superior vena cava. The AICD lead (i.e. the V-lead) was found to have a large swath of superior vena cava and parietal pleura. The azygos vein had been sheared and retracted deep into the chest and was bleeding swiftly. Consequently, Ms. Smith died as a direct result.

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