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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.)

XYZ’S CLAIMS OF UNCERTAINTY FAIL

A demurrer based on uncertainty will be sustained only where the defendant cannot reasonably determine what issues must be admitted or denied or what claims are directed against it. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 927, p. 364; 1 Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1990) § 7:85, p. 7-23. See, Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty should be overruled where the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable through discovery, or not dispositive of one or more causes of action. Khory, supra, at 616. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The complaint contains more than sufficient facts to apprise XYZ of the issues it is being asked to meet, including labeling each of the causes of action so that XYZ can tell to what it is responding and therefore, the uncertainty claims fail. See, Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d, 135, 139, fn. 2. [ [U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

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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 1st Cause of Action for Sexual Harassment and 4th Cause of Action for Failure to Prevent Harassment Are Unsupported by The Evidence

Hill’s harassment claims are based on her assertion that her former friend and supervisor Randy Lee used vulgar language in her presence that she purports to have found offensive and harassing. Defendants deny that Hill was subject to unlawful harassment. Hill has admitted, and numerous witnesses will testify, that Hill and Lee were friends who vacationed and regularly socialized together, that Hill used vulgar language around Lee (and even sent him a video of naked men with exposed penises) and that Hill never complained to Lee about his use of vulgar language. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The evidence demonstrates that Lee’s speech and conduct was not because of Hill’s gender (if she had been a man, she would have been subjected to the same speech), unwelcome to Hill or so severe or pervasive that it altered the conditions of Hill’s employment and created a hostile work environment. In addition, much of the speech upon which Hill hopes to base her claim – for example, Lee’s private discussions with his female friends — is protected by the free speech guarantees under the First Amendment and California constitution. All such evidence must be excluded. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932-34 (1982) (verdict must be vacated where court cannot tell if the verdict was based, in part, on constitutionally-protected activity). (See Part 4 of 10.)

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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 birth injury 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, or Sutter.

STATEMENT OF FACTS

Abbey Smith initially presented to Universal Hospital on February 19, 2001, at or about 6:30 p.m., and was shortly thereafter admitted for induction. The records clearly indicate that Dr.Lee was the physician on duty at the time of admission. While on duty, Dr.Lee was responsible for treating the patients from the XYZ Obstetrics and Gynecology group that were admitted to Universal Hospital. The hospital records further note that Dr. Brown relieved Dr.Lee at approximately noon on February 20, 2001. The hospital records, as well as the deposition testimony of Ms. Smith and Mr. Smith, clearly establish that Dr. Brown was Ms. Smith’s obstetrician throughout the remainder of her labor. Such records and testimony further establish that Dr. Brown delivered Mark Smith, Jr., the following day, February 21, 2001.

During the course of her labor, Ms. Smith received several amnioinfusions, the first of which was initiated sometime around 1:15 p.m. on February 20, 2001. An epidural was administered around 3:20 p.m.; a second amnioinfusion was started around 4:30 p.m. and completed around 5:00 p.m. At approximately 6:00 p.m., it was documented that Ms. Smith was complaining of pain secondary to the epidural, vomiting of yellow sputum-like fluid and that the fetal heart rate was reactive with mild variable decelerations. 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 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.)

DEFENDANTS ELIZABETH BROWN, M.D., STANLEY WOO, M.D., AND WOMEN’S HEALTH GROUP’S TRIAL BRIEF (PRE-TRIAL REPORT)

INTRODUCTION

The instant action is one for medical malpractice, wrongful life and wrongful birth brought on behalf of the plaintiffs, Nancy Smith, Thomas Smith, and minor plaintiff Nicholas Smith, by and through his Guardian Ad Litem, Nancy Smith, for the failure to diagnose multiple congenital anomalies prenatally during ultrasounds performed on July 21, 2008, by defendant Stanley Woo, M.D., and August 11, 2008, by defendant Elizabeth Brown, M.D.

Plaintiffs allege that Drs. Woo and Brown failed to properly perform the ultrasounds by failing to obtain measurements. Plaintiffs allege that had the congenital anomaly that the plaintiff Nicholas Smith was born with, known as hemimeganencephaly, been diagnosed, plaintiffs Nancy Smith and Thomas Smith would have aborted the pregnancy and the minor plaintiff Nicholas Smith would not have been born. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The evidence will show that both Dr. Woo and Dr. Brown met the standard of care regarding the ultrasounds performed, both of which were limited ultrasounds and they were not required to evaluate the anatomy of the baby.

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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.

Thereafter, on April 23, 2006, plaintiff underwent a right leg arteriogram, performed by Dr. Brown, and skin oxygen saturation studies of his right lower extremity in order to determine the extent of the vascular disease. These studies revealed the blood supply in plaintiff’s ankle and proximally to the lower portion of the anterior tibia and peroneal arteries was very poor. In addition, the ulceration had extended laterally, including some of the heel area and involving all of the toes, and the oxygen saturation was only adequate from the ankle upward. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Accordingly, due to the lack of blood supply and tissue oxygenation, severe sepsis, and the intolerable pain plaintiff was experiencing, Dr. Brown recommended that a below-the-knee amputation be performed. That same day, April 23, 2006, Dr. Woo, assisted by Joe Black, M.D., performed a right below-the-knee amputation of plaintiff’s right foot. Plaintiff tolerated the procedure well and there were no complications.

Notwithstanding, as elaborated infra, plaintiff cannot prove the essential elements of a breach of the standard of care or causation against the moving defendant.

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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 personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve the California Highway Patrol or the law enforcement divisions of any local municipality, such as Roseville, El Dorado Hills, West Sacramento, or Elk Grove.

THE VERDICT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE

Defendant contends that a miscarriage of justice will be promoted if the verdict stands and further contends that the verdict is not based upon substantial evidence. Defendant’s contention is plainly wrong for several reasons.

First, defendant does not challenge the finding of liability in this matter and is thus not entitled to a JNOV in that regard. Further, defendant suggests that because plaintiff’s experts were not aware of the sub rosa videotape at the time of their testimony, and that “sub rosa” videotape simply wipes away any and all evidence of injuries to plaintiff Sandra White. However, plaintiff presented evidence that was sufficient to “reasonably inspire confidence,” and support the verdict, as such defendant is not entitled to a JNOV as to the damage award and defendant’s JNOV motion should be denied in its entirety. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant Erroneously Contends that Plaintiffs Experts Relied on False Assumptions
Defendant argues that plaintiffs experts relied on false assumptions, including 1) that plaintiff was unable to leave the house by herself; 2) that plaintiff was unable to dress herself; 3) that plaintiff could not move her arm and needed shoulder surgery; 4) that plaintiff required 24-hour supervision; 5) that plaintiff could not walk unassisted; 6) that plaintiff would not be allowed to smoke; and 7) that plaintiff could not conduct a transaction by herself. Defendant suggests that the “sub rosa” video contradicts all of these alleged false assumptions. (See Part 7 of 10.)

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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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Plaintiff’s Complaint for Professional Negligence is Barred by the Statute of Limitations.

A complaint is subject to a demurrer under Code of Civil Procedure § 430.10, subparagraph (e), if the facts alleged in the complaint and matters of which the court is entitled to take judicial notice show the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995; Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

The statute of limitations for medical malpractice claims is set out in Code of Civil Procedure §340.5. It provides, in pertinent part:

In an action for injury or death by a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through use of reasonable diligence should have discovered, the injury, whichever occurs first. C.C.P. §340.5. (emphasis added)

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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.)

PUNITIVE DAMAGES IN THE ELDER ABUSE CAUSE OF ACTION IS SUFFICIENTLY PLED

CCP §425.11 is inapplicable to an elder abuse cause of action.

XYZ’s claim that Plaintiff must comply with Code of Civil Procedure §425.13 which requires that a plaintiff seek court permission to state a punitive damage claim in a medical malpractice cause of action, was held five years ago by the California Supreme Court as inapplicable in elder abuse causes of action. Covenant Care, Inc. v. Superior Court, (2004) 32 Cal.4th 771, 790. Plaintiff has not alleged punitive damages in his second or third causes of action.

PLAINTIFF HAS ALLEGED SUFFICIENT FACTS OF CONDUCT BY XYZ EMPLOYEES, MANAGING AGENTS AND RATIFICATION TO SUSTAIN THE CLAIM FOR PUNITIVE DAMAGES IN THE ELDER ABUSE CAUSE OF ACTION AND THE MOTION TO STRIKE MUST BE DENIED.

XYZ argues that plaintiff has not stated sufficient facts of punitive damages. The facts to support the reckless neglect of Mr. Lee and his rights while under XYZ’s care are also sufficient to state this claim of punitive damages in the elder abuse cause of action. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Pursuant to Cal. Civ. Code §3294(b) Plaintiff is entitled to punitive damages in that Defendant authorized or ratified the wrongful conduct for which Plaintiff seeks to recover. [White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 577].

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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 birth injury 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, or Sutter.

INTRODUCTION cont.

On January 19, 2001, plaintiff commenced a medical malpractice action against the following defendants: Xavier Greene, M.D., XYZ Perinatal Group, and Universal Hospital. The Complaint contains the following causes of action:

(1) The First Cause of Action, on behalf of Mark Smith, Jr., alleges negligence as against various health care provider defendants. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(2) The Second Cause of Action, on behalf of Abbey Smith, alleges negligence as against various health care provider defendants.

(3) The Third Cause of Action, on behalf of Abbey Smith, alleges a claim for negligent infliction of emotional distress, as against various health care provider defendants.

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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.)

As the court in College Hosp. v. Superior Court, (1994) 8 Cal.4th 704, stated, the issue of ratification commonly arises where the employer or its managing agent is charged with failing to intercede in a known pattern of workplace abuse, or failing to investigate or discipline the errant employee once such misconduct became known. In Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, the Court concluded the health provider’s failure to respond to known deteriorating pressure sores constituted a reckless failure to provide medical care for her physical health needs and that no changes were made to the patient care plan and/or that the care plan was not followed even with full knowledge that the pressure sore was deteriorating. The court further found that it would be reasonably inferred from this chain of events that [the health care provider] acted with reckless neglect in caring for Mrs. Intrieri. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The same is true in this case. Plaintiff has alleged facts of a pattern of reckless neglect, disregarding dietary plans and instructions, and failing to reposition Mr. Lee, for 39 days. These facts are sufficient to support the inference that supervisors and managers of the nurses and staff whom intentionally violated the standing dietary plan and instructions and failed to reposition Mr. Lee for weeks ratified this type of treatment of Mr. Lee.

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