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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.

A party may rely upon “reasonable inferences” from the evidence to support a verdict. Hauter, 14 Cal.3d at 110. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established. Cal. Evid. Code, § 600; See also Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21. Further, in evaluating a JNOV notion, any conflicting evidence is resolved against the moving party; and the party in whose favor the verdict was rendered is entitled to the benefit of every favorable inference which may reasonably be drawn from the evidence and to have all conflicts in the evidence resolved in his favor. Castro v. State of California (1981) 114 Cal.App.3d 503 (emphasis added); see also Fountain Valley Chateau Blane Homeowner’s Ass’n v. Dept. of Veterans Affairs (1998) 67 Cal.App.4th 743. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further, a judgment notwithstanding the verdict can be sustained only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it, or the trial court would be compelled to set it aside as a matter of law. Moore v. San Francisco (1970) 5 Cal. App. 3d 728, 733-734 (referencing Palmer v. Agid (1959) 171 Cal.App.2d 271). A JNOV motion must be denied if substantial evidence supports the verdict. Begnal v. Canfield Assocs., Inc. (2000) 78 Cal.App.4th 66; Campbell v. Cal-Gard Surety Svs., Inc. (1998) Cal.App.4th 563; Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal. App. 4th 206, 218.

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https://www.moseleycollins.com/lawyer-attorney-1245027.htmlThe 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 TRIAL COURT POSSESSES THE INHERENT POWER TO GRANT MOTIONS IN LIMINE AND SUCH MOTIONS ARE A WELL ESTABLISHED METHOD OF EXCLUDING INADMISSIBLE EVIDENCE

Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.

A MOTION IN LIMINE MAY BE USED TO EXCLUDE ANY EVIDENCE TO WHICH COUNSEL COULD OBJECT AT TRIAL IS IRRELEVANT OR IS SUBJECT TO THIS DISCRETIONARY EXCLUSION BECAUSE OF ITS UNDULY PREJUDICIAL EFFECT

Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.

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
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.

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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 ALLEGES SUFFICIENT FACTS OF XYZ’S NURSING STAFF AND STAFF RECKLESS NEGLECT

XYZ’s argument that plaintiff has not alleged facts regarding employees of XYZ fails to acknowledge the allegations throughout the complaint regarding XYZ’s nursing staff and staff. The complaint sufficiently states facts regarding XYZ’s nursing staffs recklessness in feeding Mr. Lee, in violation of standing orders, solid food, and again feeding him solid food after being confronted by more than one person. The failure to plead the specific names of the employees is not required; defendant has not cited any legal authority to support this argument. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFF ALLEGES SUFFICIENT FACTS TO SUPPORT THE INFERENCE OF RATIFICATION OF THE PATTERN OF RECKLESS NEGLECT BY XYZ’S MANAGING AGENTS, OFFICERS, AND DIRECTORS.

Plaintiff has sufficiently alleged facts of a pattern over 39 days that support inferences of ratification by XYZ’s officers, directors and/or managing agents.

Mr. Lee was a patient at XYZ from September 14, 2006, through October 23, 2006. After having undergone surgery to remove a tumor in his esophagus, he was admitted into XYZ for low blood pressure, with strict dietary instructions of no solid foods.

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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.

STATEMENT OF FACTS

On or about April 21, 2006, plaintiff was seen in the emergency department at Universal Medical Center. At that time, he was assessed as having gangrene of the right foot, diabetes mellitus, and sepsis. The plan was to admit plaintiff under the services of his attending physician, Mary Smith, M.D., and to have plaintiff seen by surgeon, Paul Woo, M.D. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Thereafter, on April 21, 2006, a physical examination performed by Dr.. Woo revealed that plaintiff’s right foot had no palpable pulsation on either of the dorsalis pedis, nor the posterior tibial artery. At that time, Dr. Woo’s impression was gangrene of the right foot, and he recommended non-invasive studies of the arteries of the right lower extremity. Accordingly, on April 22, 2006, right lower extremity radiological studies revealed no significant stenosis and no occlusion, and that plaintiff’s right foot gangrene was due to small vessel disease.

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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 alleges that XYZ’s nursing staff and staff, recklessly neglected Mr. Lee by continuously giving him solid food, in violation of standing instructions because Mr. Lee had recently undergone surgery to remove a tumor inside his esophagus. Plaintiffs family and others warned XYZ to follow the instructions, but XYZ continued to disregard the instructions. This was not an isolated incident, nor limited to one person, but ongoing and continuous reckless neglect and treatment of Mr. Lee from September 14, 2006 through October 23, 2006. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

These facts are sufficient to establish the inference that as an on going and continuance act by XYZ’s staff, the managing staff of the hospital or others approved and ratified this conduct. Plaintiff has alleged these facts of ratification and authorization. XYZ’s reckless disregard of these standing instructions caused Mr. Lee serious pain and suffering and physical injuries, including choking on food, vomiting, aspirating into his lungs and suffering an incident of prolonged respiratory failure with significant permanent injury.

XYZ argues that it is unclear whether the non-solid food instructions provided when Mr. Lee was transferred to XYZ, was a part of XYZ’s doctor’s orders is irrelevant. XYZ is arguing what it contends should be the evidence, which is inappropriate on a demurrer. (Aubry v. Tri City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967 [demurrer admits the truth of all material facts].

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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.

LEGAL ARGUMENTS
Plaintiff’s Complaint is Uncertain Because the Facts Support Only a Cause of Action for Professional Negligence and Not for General Negligence
California Code of Civil Procedure §430.10 provides, in pertinent part:
The party against whom a complaint…has been filed may object, by demurrer … to the pleading on any one or more of the following grounds:
(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

A demurrer may be taken to the entire complaint or to any of the causes of action stated in the complaint. Code Civ. Proc. §430.50. For the purposes of testing the sufficiency of the cause of action, the demurrer assumes all material facts alleged in the complaint to be true. Serrano v. Priest (1971) 5 Cal.3d 584, 591, cert denied, 432 U.S. 907.

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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.

PLEASE TAKE NOTICE that defendant, David Brown M.D., will move this Court for summary judgment in his favor, and against plaintiffs, Abbey Smith and Mark Smith, Sr., in the above-captioned action, in Sacramento County Superior Court. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant David Brown, M.D.’s, Notice of Motion and Motion for Summary Judgment, and Memorandum of Points and Authorities.

This motion for summary judgment is brought on the following grounds:

(1) This action is barred by the Statute of Limitations, pursuant to Code of Civil Procedure §§ 340.5 and 474;

(2) There is no triable issue of material fact as to the summary judgment sought, and therefore the moving party is entitled to such summary judgment as a matter of law, pursuant to Code of Civil Procedure § 437c.

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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.)

WHETHER ANY OF THE DEFENDANTS HAVE OR HAVE NOT BEEN SUED FOR PROFESSIONAL NEGLIGENCE IS NOT RELEVANT IN THIS ACTION

The only issue properly before the court and the trier of fact is whether or not the defendants breached the standard of care to these patients; whether or not said breach was a substantial factor in causing injury or damage; and the extent of that injury/damage. It is of no consequence that this case may, or may not be, the first in either of these individual defendants’ career in obstetrics.

Comments, suggestions, or innuendo that defendants are good obstetricians or because of a non-existent lawsuit history will only serve to prejudice the jury against plaintiffs, confuse the issues and allow for the potential for jury speculation, rather than focusing on the evidence. Like evidence of good “conduct” or good “character,” such comments, evidence or argument, is improper because it asks the jury to violate the law and their oath to judge the case based on the evidence presented to them and without regard to sympathy for any party. While such propaganda can be cleverly worded and disguised in its presentation, it is still inadmissible and improper and should not be allowed by this court. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

EVIDENCE CODE § 352 MANDATES EXCLUSION OF SUCH EVIDENCE, AS IT WOULD RESULT IN UNDUE PREJUDICE TO PLAINTIFFS, CONFUSION OF THE ISSUES, AND WOULD MISLEAD THE JURY SUCH THAT ITS PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE
This Court has the discretion to exclude prejudicial evidence. California Evidence Code § 352 provides that:

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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.)

MEMORANDUM OF POINTS AND AUTHORITIES
BACKGROUND

Plaintiffs’ decedent suffered a stroke in 2003. She was hospitalized through February 19, 2004 when she was transferred to Defendant ABC Skilled Nursing Facility in Sacramento with orders that Posey restraints be used in view of the loss of use of one side of her body and confusion which could result in injury. Defendant chose to ignore the orders and on plaintiff’s first night in the SNF decedent got out of bed apparently not remembering that she could not walk normally, fell and hit her head. A staff person for Defendant SNF heard her fall and eventually went to check on her. She was found on the floor with a bruise/abrasion on her forehead. She was anti-coagulated to prevent further strokes and presented a clear risk of developing a sub-dural hematoma, a common secondary response. The facility chose to do nothing until she was checked at about 7:00 in the morning and pronounced good. Finally at about noon when she started to present with severe problems showing loss of mental faculties Defendant decided that she should be sent to the hospital to be examined.

It was too late, the sub-dural hematoma had grown to the point where it was not operable by the time decedent arrived at the hospital. defendant’s inadequate, delayed response proved costly for plaintiff. Decedent was, at the time, a strong-willed person and managed to hold on at home in a severely debilitated state until her death on April 25, 2004. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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 HAS SUFFICIENTLY STATED A CAUSE OF ACTION FOR ELDER ABUSE

XYZ claims that the standard of pleading is different for an elder abuse claim. Though a statutory cause of action is to be plead with particularity, there is no heightened pleading standard. Plaintiff has alleged each element of a cause of action pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) Welfare & Institutions Code §15600, et seq., and the facts sufficiently, and with particularity, set forth XYZ’s pattern of reckless neglect of Mr. Lee.

PLAINTIFF HAS SUFFICIENTLY ALLEGED RECKLESS NEGLECT

Defendant’s argument that the facts regarding XYZ’s conduct do not describe “egregious” conduct, misstates the elements of the Elder Abuse Act.

The Elder Abuse Act provides for heightened remedies under W&I Code §15657 and applies to health care providers who recklessly neglect elder and dependent adults. Delaney v. Baker (1999) 20 Cal.4th 23, 30-31. As the court in Benun v. Superior Court (2004) 123 Cal.App.4th 113, 119, stated, To establish elder abuse, a plaintiff must show defendant was guilty of recklessness, oppression, fraud, or malice in the commission of [neglectful …] elder abuse]. (W&I Code §15657.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Elder Abuse Act defines the abuse of an elder to mean “physical abuse, neglect, … ” or “other treatment with resulting physical harm or pain or mental suffering,” or “the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (W&I Code §15610.07(a) and (b)).

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