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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.)

The regulation interrogation.

In order for a statute or regulation to be relevant to this matter it must fit into the definition contained in CACI 418 et seq. A simple, quick reading of the entirety of the regulations presented by the defense herein makes it clear that they are not relevant.

The California regulations are all cited from the licensing requirements for skilled nursing facilities. They provide requirements that the facility must provide for a license. The regulations do not state anything as to the standard a doctor must follow. Licensing requirements are not standards of care nor is Defendant bound by the licensing requirements of the facility in seeing patients. These are two different issues. The regulations do not state that an assigned doctor is to see a patient in 72 hours, but that the facility is to make sure that some doctor sees the patient. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The restraint regulations of the state are just as faulty. They are in the same licensing section for SNF’s not the doctor’s duties to care for a patient. They relate to the regulations governing the party who saw the light and settled not what the doctor’s duty was to take care of his patient. Moreover, the regulations have been taken out of context since the whole of the regulation is not provided to the court or jury.

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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.)

Should [defendant/physicians] be … designated, a full inquiry into their present opinions would be entirely appropriate. But … the inquiry is not appropriate until and unless there is … a[n] [expert] designation.

As we have seen, C.C.P. section 2034 is expressly applicable to the expert opinion of parties to a lawsuit. We see no reason to disrupt the carefully crafted legislative scheme for the regulation of discovery of the identity, qualifications and opinions of expert witnesses. The trial court order that the physician defendants testify at deposition about their present opinion of the medical propriety of their acts, even though they have not been designated as expert witnesses, would have that effect. It is for that reason that we direct that it be set aside. [Id. at pages 1455-1457].

Likewise, Province v. Center of Women’s Health (1994) 20 Cal.App 4th 1673, involved a matter where a severely brain-damaged plaintiff (by her mother/guardian ad litem) alleged defendants committed medical malpractice during her birth/delivery. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

At trial, the Province defendant doctors elicited expert testimony from a pathologist who had examined the umbilical cord of plaintiff shortly after birth.

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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.

INSUFFICIENT STAFFING AND UNFIT EMPLOYEES

Although plaintiff has pled sufficient facts of defendant’s ratification, as set forth above, plaintiff has also alleged sufficient facts that a managing agent of defendant had advance knowledge of the unfitness of individual employees and defendant continued to employee that person with a knowing disregard of the rights or safety of others. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Reading the First Amended Complaint as a whole, and in context, a reasonable inference that may be drawn from the facts that defendant violated the Patient Care Plan, physician orders and policies and procedures and fed Mr. White solid food and failed to reposition Mr. White as required to avoid his developing serious bed pressure sores, is that defendant was understaffed and certain staff was incompetent and unfit for the job of providing care to Mr. White.

Plaintiff has alleged that Defendant failed to employ sufficient and adequate staff to meet the care needs of Mr. White, including failing to employ sufficient numbers of supervising staff to oversee and monitor patient care, including responding to complaints and requests for investigations.

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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.)

Scope of Requested Voir Dire

The scope of questioning has to accomplish the goal of a “fair and impartial jury” in this personal injury matter, which may involve numerous issues. Although CCP §222.5 permits the court to impose some limits, the statute specifically requires that the court take into account: any unique or complex elements, legal or factual, in the case and the individual responses or conduct of jurors which may evince attitudes inconsistent with suitability to serve as a fair and impartial juror in the particular case.

(California Code of Civil Procedure) section 222.5 grants counsel in a civil trial the right to conduct “oral examination of prospective jurors to enable them to exercise both peremptory and for cause” challenges. The scope of such examination may be restricted by the trial court within reasonable limits that allow counsel liberal and probing examination to discover bias and prejudice within the circumstances of each case. Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 324. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Time Restrictions
CCP §222.5 specifically prohibits arbitrary time limits: Specific unreasonable or arbitrary time limits shall not be imposed. In the past, some local and state court rules sought to impose time limits. However, this rule has long ago been withdrawn.

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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.)

DAMAGES

With respect to damages, general damages for pain and suffering are not allowed in a wrongful life case. Turpin v. Sortini 31 Cal.3d 220 (1982); see also Gami v. Mullikin Medical Center, 18 Cal.App4th 870 (1993). In addition, damages for loss of earning capacity are not permitted in such an action for wrongful life and wrongful birth. In Andalon v. Superior Court 162 Cal.App3d 208 (1984); See also Simmons v. West Covina Medical Clinic, 212, Cal.App3d 696. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Turpin v. Sortini, 31 Cal.3d, plaintiffs, a minor child and her parents, brought a wrongful life action against the doctors, hospital and others who participated in the misdiagnosis of the hereditary defect in the child’s sister, thereby depriving allegedly the parents a choice of whether or not they should conceive the plaintiff minor child. There, the California Supreme Court held that the plaintiffs were limited to recovery of the child’s extraordinary medical expenses that were proximately caused by the defendants’ negligence.

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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.)

Plaintiff’s Opposition to Defendant David Hall’s Motion for Summary Judgement; Memorandum of Points and Authorities in Support Thereof. (CCP § 437c)

This opposition is based on the grounds that the care and treatment provided by defendants was below the standard of care, caused harm, and that triable issues of material fact exists mandating denial of the Motion for Summary Judgment.

These papers will be based upon this Opposition; the attached Memorandum of Points and Authorities; the Separate Statement of Disputed and Undisputed Material Facts; the Declaration of John Brown, M.D.; the Declaration of Michael Jones, Esq.; upon all of the pleadings, papers and files in this matter; and upon such other and further evidence as may be presented at the time of the hearing of this matter.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical malpractice case. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Decedent, Kim Smith developed pregnancy related cardiomyopathy in 2004 and was fitted with a AICD (Automatic Implantable Cardioverter Defibrillator). She had three children – aged 3, 9 and 12 years.

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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.)

California Courts have agreed with this proposition. The factual circumstances in County of L.A. v. Superior Ct. [Martinez](1990) 224 Cal.App. 3d 1446 are similar to the facts herein. In County, plaintiff (mother of child) alleged that defendant physicians had committed malpractice in attending to plaintiff’s delivery of her child and as a result the child suffered severe brain damage.

During discovery, County defendant doctors refused to answer expert questions during depositions arguing that expert testimony was premature since the time in which to serve expert designations under §2034 had not yet run. Plaintiffs Motion to Compel testimony was granted; and defendant doctors appealed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Appellate Court reversed the Trial Court’s Motion to compel and held that defendant doctors not be required to provide expert opinion at subject depositions. In making its decision, the Court stated in pertinent part:

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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 medical negligence case and its proceedings.)

It is also worth noting that situations similar to those described in this elder abuse 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.

Plaintiffs’ Claim for NIED Is Well Pled
Negligent infliction of emotional distress (“NIED”) as a cause of action is especially useful in nursing home cases because the cause of action belongs to the resident’s individual family members and is not part of the survival action or the wrongful death action. California Elder Law Litigation: An Advocate’s Guide (Cal CEB 2005). Section 2.64.2 of the treatise provides,

“In direct victim cases, the plaintiff need not personally observe the negligent conduct, but the defendant must owe a duty of care directly to the plaintiff who claims the emotional distress, not just to the patient or other individual who is physically injured, [citations]. One can argue that a nursing home has a direct duty to a resident’s family to take good care of the resident as a service to the family, not just to the resident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A nursing home has a duty to a patient’s family members to notify them regarding changes in the patient’s condition, [citations] If a school district deliberately conceals from parents a known risk to a student, it usurps the parents’ prerogative to protect the child, and so is liable to the parents as direct victims when the child is injured, [citations] If a skilled nursing facility operator deliberately conceals from the patient or family members developing changes in the patient’s condition, a parallel argument can be made that the family’s prerogative to protect the patient has been usurped.”

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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.

A managing agent is a corporate employee who exercises substantial independent authority and judgment in decision-making so that the decisions ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567, 577.) As the California Supreme Court has held, supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents. (White, supra, at 577 (emphasis added).) Plaintiff has alleged ratifying conduct of defendant’s Managing Agents – its administrator and various Supervisors. Defendant’s contention, however, that the administrator or the Supervisors may not be “managing agents,” is inappropriate argument of what it believes the evidence may or may not establish at the time of trial on this issue, which of course, is not the standard on a demurrer. It is not the function of a demurrer to test the truth of the plaintiffs allegations or the accuracy with which he describes the defendant’s conduct. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It “admits the truth of all material factual allegations in the complaint …”; the question of a plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) Accordingly, defendant’s reliance on Kelly-Zurian v. Wohl Shoe Co.(1994) 22 Cal.App.4th 397 is erroneous. In Kelly-Zurian, a sexual harassment case, the court of appeal determined that, based on the evidence presented at the trial, there was insufficient evidence to prove that the plaintiff’s supervisor was a managing agent of the defendant. The issue was the sufficiency of the evidence. Contrary to defendant’s assertion, the case does not hold that an administrator is not a managing agent.

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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.)

Defendants’ Notice of Demurrer and Demurrer to Complaint; Memorandum of Points and Authorities in Support

Please take notice and notice is hereby given that defendant, Darren White, M.D., will and hereby does demur to the plaintiffs’ complaint, pursuant to Code of Civil Procedure section 430.10(e), on the following grounds:

The fourth cause of action for negligent infliction of emotional distress by plaintiff Thomas Lee fails to state facts sufficient to constitute a cause of action.

This demurrer is based on this notice, the attached memorandum of points and authorities, the documents, records and pleadings on file herein, and upon such further oral and documentary evidence as may be admitted at the hearing of this demurrer. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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