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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 TRIAL BRIEF
INTRODUCTION

This is a medical malpractice action.

Decedent, Kim Smith (DOB: XX/XX/63; DOD: XX/XX/08), developed pregnancy-related cardiomyopathy in 2003 and was fitted with a AICD (Automatic Implantable Cardioverter Defibrillator). She had five children – 3 minors aged 4, 10 and 13.

On November 8, 2008, decedent had surgery at Memorial Hospital for replacement of the defibrillator (by surgeon, Phillip White). She had infection following this surgery and was readmitted December 20-22, 2008. Discharge diagnosis was left chest cellulitis at site of AICD with a culture positive for pseudomonas aeruginosa. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Decedent was scheduled for pacemaker and lead extraction secondary to the infection at Memorial Hospital by David Hall (surgeon) on January 19, 2009. This is a percutaneous laser lead extraction. Stephen Lee, an interventional radiologist, was the assistant surgeon. Dr. Lee operated the laser lead extractor during the 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 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.

(2) Defendants’ Nurses Notes were charted inaccurately or the nurse completely failed to perform any charting whatsoever (both serious breaches of the applicable regulations since the absence of any charting is absolute and unequivocal evidence of neglect) (FAC, para. 29);

(3) Defendants’ failed to order a speech therapist or speech language pathologist evaluation (an intentional violation of the regulations) for Abbey on or about April 8, 2008, when they knew that she was not swallowing and had lost considerable weight (inability to swallow and substantial weight loss are both changes of condition, both of which required notification to Abbey’s family and physician so that these issues could be addressed) (FAC, para. 31); also, a nursing facility must ensure that a resident receives prescribed therapies, including physical therapy, occupational therapy, and speech therapy. 42 CFR § 483.45; For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(4) Abbey’s inability to swallow and/or her delayed swallowing should have been critically important warning signs of dehydration, which Defendants recklessly ignored causing her swallowing problems to worsen (FAC, para. 32);

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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 car accident case and its proceedings.)

THE COURT SHOULD EXCLUDE EVIDENCE THE PROBATIVE VALUE OF WHICH IS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICIAL IMPACT OR HAS THE RISK OF MISLEADING OR CONFUSING THE JURY

Evidence Code section 352 gives the Court discretion to exclude evidence if its admission will necessitate the undue consumption of time, or if its probative value is substantially outweighed by a substantial danger of undue prejudice, confusion of issues and misleading the jury. (Evidence Code §352.) Pursuant to Evidence Code section 352, the court should weigh the probative value of proffered evidence against the probability that it will create a substantial danger of undue prejudice. (People v. Murphy (1979) 8 Cal.3d 359.) If the Court finds that the probative value of the proffered evidence is weak and a danger of undue prejudice is strong, then it should rule that such evidence is inadmissible. (People v. Stanley (1967) 167 Cal.2d 812.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There are a number of different factors with which to determine the strength or weakness of the probative value of evidence. Among the factors which the court should consider are the following:

Its materiality;
The strength of its relationship to the issue upon which it is offered;
Whether it goes to a main issue or merely a collateral one; and

Whether it is necessary to prove the proponents case or merely cumulative to other available and sufficient proof.

(Burke v. Almaden Vineyards, Inc. (1978) 86 Cal. App.2d 750.)

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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.)

CAUSES OF ACTION AND AFFIRMATIVE DEFENSES THAT WILL BE TRIED

In this case, plaintiffs have asserted causes of action for medical negligence, wrongful life and wrongful birth.

The affirmative defenses that will be raised (as asserted in the answer to the first amended complaint) are the first affirmative defense (failure to state facts sufficient to constitute a cause of action against defendants), the sixth affirmative defense regarding the applicability of the MICRA provisions pursuant California Civil Code Sections 3333.1 and 3333.2, California Code of Civil Procedure Section 667.7; the eighth affirmative defense (California Civil Code Section 1714.8.)

STIPULATION

Counsel have stipulated that plaintiff Nicholas Smith cannot recover general damages or assert a claim for loss of earnings or earning capacity. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

EVIDENTIARY ISSUES
The evidentiary issues that will be raised at trial are whether or not the defendants complied with the standard of care and whether or not the defendants care and treatment was a proximate cause of the plaintiffs’ alleged injuries as well as issues pertaining to the plaintiffs’ alleged damages.

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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 medical malpractice case and its proceedings.)

It is 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

THE CARE RENDERED BY DEFENDANT IN NO WAY CAUSED OR CONTRIBUTED TO THE INJURIES COMPLAINED OF BY PLAINTIFF

In addition to proving that the defendant fell below the standard of care, to prevail in a medical negligence claim, the plaintiff must demonstrate that the defendant’s malpractice caused injury to the plaintiff. Bolen v. Woo (1979) 96 Cal.App.3d 944, 953. The standard for establishing causation in a medical malpractice action was set forth in Jones v. Ortho Pharmaceutical Corporation (1985) 163 Cal.App.3d 396. In Jones, the court held that causation must be proven by reasonable medical probability based upon competent expert testimony. The court noted that a mere possibility is insufficient to establish a prima facie case and distinguished a reasonable medical probability from a medical possibility:

There can be many possible causes, indeed an indefinite number of circumstances which can produce an injury or death. A possible cause only becomes probable when in the absence of other reasonable causal connections, it becomes more likely than not that the injury was a result of its action.” Id. at 402-403. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

In the instant action, plaintiff alleges that defendants committed professional malpractice in that they performed procedures “in a negligent manner and below the standard of care,” and that despite plaintiff’s history of diabetes and gradually worsening condition of his cut, defendants, including Richard Brown, M.D., “conservatively treated and/or failed to properly diagnose and treat [plaintiff’s] medical condition,” resulting in severe and painful gangrene to his right foot.

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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 wrongful death case and its proceedings.)

It is worth noting that situations similar to those described in this medical negligence action could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Plaintiff Must Join All Persons Necessary for Just Adjudication

A complaint shall state the names, if known to the pleader, of any persons who, by their absence, may leave the defendant subject to risk of incurring multiple or inconsistent obligations. If such persons are not joined as parties, the pleader must state in the complaint why they are not joined. C.C.P. §389(a) & (c).

If any person is allied in interest with plaintiff, but refuses to join as a co-plaintiff, he or she may be sued as a defendant. In such cases, the complaint must state the reasons why such person was so joined. C.C.P. §382. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff alleges that he is the “surviving heirs (sic) at law” of decedent. It is unclear whether there are other persons with standing to bring suit in this wrongful death 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 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.

Civil Code §3294(b) provides:

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Therefore, to establish a violation of the Elder Abuse Act by a corporate employer, the plaintiff must plead and prove at only one of the following:

1. Defendant’s officer, director, or managing agent recklessly neglected plaintiff; or,
2. 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
3. Defendant’s officer, director, or managing agent authorized the conduct of defendant’s employee(s); or
4. Defendant’s officer, director, or managing agent knew of the defendant’s employee(s)’s wrongful conduct and adopted or approved the conduct after it occurred. (CACI3105, W&I §15657(c) and Civil Code §3294(b)).

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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’ Trial Brief on Issues Arising During the Current Pendency of Trial

The issues are:

1. The court allowed Defendant to inquire of the standard of care as to the staff of ABC Skilled Nursing Facility (“ABC”) over the objections of counsel for Plaintiffs.

2. The court allowed Defendant to inquire about certain regulatory materials, i.e. the Code of Federal Regulations and the California Administrative Code of Regulations over the objections of counsel for Plaintiffs.

Neither of these lines of questioning were appropriate, material or relevant to this matter. Plaintiffs, with the filing of this brief, will renew their objections and request that the court strike the testimony and instruct the jury to ignore it. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The bases for the requests are as follows:

Standard of Care at ABC
Dr. Brown was designated solely as an expert on the issue of the negligence of Andrew Lee, M.D. Tamara White was Plaintiffs’ expert on the issue of the negligence of ABC. Ms. White was withdrawn and not deposed at the demand of Defendant Lee after the good faith settlement with ABC.

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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.

The Elder Abuse Cause of Action in Plaintiffs’ FAC is Well Pled

In their Demurrer, Defendants haphazardly assert that Plaintiffs claim for elder abuse simply fails to plead facts sufficient to constitute a viable claim. However, in asserting this baseless accusation, Defendants ignore the 30-plus paragraphs of detailed factual allegations which make up the factual basis for Plaintiffs’ elder abuse cause of action. In fact, Plaintiffs’ FAC provides Defendants with more detail than is required by the code. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The issue here is whether or not Plaintiffs have provided Defendants with sufficient facts such that Defendants are apprised of the basis upon which Plaintiff are seeking recovery. Clearly, Plaintiffs have provided Defendants with more than a sufficient factual basis of the claims against them, including a clear picture of the multiple acts and omissions by Defendants constituting elder abuse. Specifically, Plaintiffs have alleged copious facts in their FAC that clearly elucidate specifically how Defendants’ recklessly neglected Abbey and how they caused her senseless death, including but not limited to all of the following:

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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.)

Hill’s 7th Cause of Action for Intentional Infliction of Emotional Distress Is Unsupported By the Evidence

Hill’s 7th Cause of action largely duplicates her other causes of action and alleges that Defendants’ conduct caused her severe emotional distress. Defendants deny this claim, which fails for the same reasons as the underlying claims on which it is based. Further, the purported conduct Hill seeks to rely upon to support her claim is neither “extreme” nor “outrageous” as a matter of law, or is nonsensical (e.g., gay men who did not sleep with Lee were fired). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Hill’s 10th Cause of Action for Violation of Labor Code Section 226 Is Unsupported by the Evidence
Hill’s 10th cause of action alleges that she requested to review her wage statements, but was denied the opportunity entitling her to a $750 penalty under Labor Code Section 226(f). Defendants deny this claim. Hill never requested to review her wage statements, and a letter from her lawyer to a lawyer for RLAC asking for a copy of her personnel file did not constitute a request for payroll records (which were not kept in any personnel file) by Hill within the meaning of Section 226. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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