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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 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.

In this matter, Plaintiff is presenting expert, Steven Strong, M.D,. as her medical malpractice standard of care expert. Dr. Strong, however, is clearly unqualified to render standard of care opinions as to the conduct of Defendants in this matter. Specifically, in his deposition testimony, Dr. Strong demonstrated that he has absolutely no knowledge of how chiropractors, such as Dr. Davis, conduct themselves on a day to day basis, nor does he have any training in chiropractics or have contact with chiropractors, to have any familiarity of the standard of care that governs that field of medicine. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In deposition, Dr. Strong testified on June 8, 2008 and his second session on August 6, 2008, that he does not read any chiropractic journals. Further, Dr. Strong was unable to name any chiropractor that he has referred his patients to, which was also minimal. Moreover, he is not a member of any chiropractic organization. Dr. Strong has never practiced as a chiropractor. Dr. Strong has never gone to chiropractic school. He has never been taught any chiropractic techniques used to reduce subluxations. He has never used any chiropractic techniques to treat subluxations. He is not aware of any of the names of techniques used by chiropractors to correct subluxations.

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The following blog entry is written from a defendant’s position post-verdict. 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/bus accident case and its proceedings.)

Dr. Jones’s first report was written without benefit of review of medical records. In Dr. Jones’s second August 27, 2002 report, following his review of records, Dr. Jones notes plaintiff’s inconsistent and migrating symptoms as reported in records. He notes that records suggest multiple contusion type injuries during the accident. He also notes inconsistencies in the pain reported by plaintiff and plaintiff’s reported contact with the interior of the bus during the accident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Dr. Jones’s January 3, 2005, third and final report, following review of additional records, Dr. Jones notes that records reveal no anatomic basis for plaintiff’s back pain or leg pain. He further opines that Dr. Levine’s contrary opinions are unfounded and scientifically invalid. He notes that Dr. Cink agrees that plaintiff has no objective findings to support symptoms and states that Dr. Cink’s conclusions regarding disability are significantly weakened by the disproportionate symptoms and paucity or absence of objective findings. The disability rating that he opined seems excessive absent any identifiable objective findings.”

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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 any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF HAS SUFFICIENTLY ALLEGED FACTS THAT ESTABLISH MALICE AND OPPRESSION ON THE PART OF DR. BLACK

Plaintiff specifically pled a variety of facts – not conclusions – supporting the allegations of malice and oppression against Dr. Black.

The following facts pertaining to Dr. Black’s conduct were pled, providing sufficient basis for punitive damages:

At said time and place, Defendant Olivia Black, M.D. was driving the subject vehicle east on Oak Street. Defendant Olivia Black, M.D. knowingly and intentionally got behind the wheel while fatigued, sleepy and in an impaired condition, fell asleep while driving and drove the subject vehicle east on Oak Street and up and onto the raised sidewalk and struck the pedestrian plaintiff from behind. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant Olivia Black, M.D., failed to use reasonable care while negligently, and also wantonly and recklessly with malice and oppression, knowingly and intentionally got behind the wheel while fatigued, sleepy and in an impaired condition, fell asleep while driving and drove the subject vehicle east on Oak Street and up and onto the raised sidewalk and struck the pedestrian plaintiff from behind.

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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 slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

ARGUMENT
Applicable Law
CACI 1001 (Standard of Care) provides:

A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who [owns/leases/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In deciding whether defendant used reasonable care, you may consider, among other factors, the following:
(a) The location of the property;
(b) The likelihood that someone would come on to the property in the same manner as plaintiff did;
c) The likelihood of harm;
(d) The probable seriousness of such harm;
(e) Whether defendant knew or should have known of the condition that created the risk of harm;
(f) The difficulty of protecting against the risk of such harm; [and]
(g) The extent of [name of defendant] ‘s control over the condition that created the risk of harm; [and]
(h) [Other relevant factor(s).]

The comment to CACI quotes the leading California Supreme Court cases on premises liability: The proper test to be applied to the liability of the possessor of land… is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others … Rowland v. Christian (1968) 69 Cal.2d 108, 119.

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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 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.

THE MINOR PLAINTIFF IS ENTITLED TO A “LOST YEARS” JURY INSTRUCTION

The California Supreme Court specifically allows for a lost years instruction:

Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury. … Although, to our knowledge, the lost years issue has not been previously decided in California, recovery of such damages is consistent with the general rule permitting an award based on the loss of future earnings a plaintiff is likely to suffer because of inability to work for as long a period of time in the future as he could have done had not sustained the accident. (Emphasis in original and added.) (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153.)

Consequently, the minor plaintiff will be asking the court to issue an instruction on lost years damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

And in August 1999, the First District discussed the latest defense attack on the lost years damage award in Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 175. In Overly, Plaintiff sued for personal injury for exposure to asbestos – and Plaintiff claimed the loss of future economic benefits that [Plaintiff] would have earned during the period by which his life expectancy was shortened, i.e., ‘lost years’ damages, in the form of pension, social security and household services’ benefits. (Id. at p. 171.)

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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 slip and fall case and its proceedings.)

It is worth noting that situations similar to those described in this personal injury case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

THE STRINGENT SUMMARY JUDGMENT STANDARD

A motion for summary judgment shall be granted only if all the papers submitted show there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law. CCP § 437c, subd. c); Molko v. Holy Spirit Assn. (1988)46 Cal.3d 1092. The Molko Court stated:

Accordingly, the function of the trial court in ruling 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. (Walsh v. Walsh (1941) 18 Cal.2d 439, 441.) Summary judgment is a drastic measure that deprives the losing party of a trial on the merits. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762.) It should therefore be used with caution, so that it does not become a substitute for trial. (Rowland v. Christian (1968) 69 Cal.2d 108, 111, 70 Cal.Rptr. 97.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. (Stationers Corp. v. Dun & Bradstreet (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432,437, 74 Cal.Rptr. 895.) Molko, supra, at p. 1107. (See Part 8 of 12.)

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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 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.

Whether a witness qualifies as an expert in a given field, and thus whether that witness’s testimony as an expert will be admitted into evidence at trial, are fundamental issues for this Court to decide. The Court’s exercise of its discretion to allow or exclude expert testimony will not be disturbed on appeal absent manifest abuse of discretion. Huffman v. Lindquist (1985) 37 Cal.2d 465, 476-478; Putensen v. Clay, supra, 12 Cal.App.3d at 1081. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Further, in Mann v. Cracchiolo (1985) 38 Cal.3d 18, the court emphasized the need for the expert to have a connection to the “field of the defendant.” In the Mann case, the California Supreme Court’s ruling reflects a careful analysis of the proposed expert witness’s qualifications and cites specific evidence of the expert’s qualifications to render expert testimony in the fields of medical malpractice at issue in that litigation. Id. At 38-40. Having analyzed the proposed expert witness’s qualifications, the Court concluded:

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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 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. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

ARGUMENT

PLAINTIFFS SHOULD BE COMPELLED TO ARBITRATE ALL OF THEIR CLAIMS AGAINST DR. LEE BECAUSE THE FEBRUARY 27, 2005, PHYSICIAN-PATIENT ARBITRATION AGREEMENT IS VALID.

The State of California has a strong public policy favoring arbitration over litigation as a speedy and relatively inexpensive means of dispute resolution which eases court congestion. (Pietrelli v. Peacock, (1993) Cal.App.4th 943, 946.) A court should use every effort to enforce arbitration agreements because arbitration is a highly favored forum for settling disputes. (Pacific Inv. Co. v. Townsend, (1976) 58 Cal.App.3d 1, 9.) A written arbitration agreement is valid and enforceable and irrevocable as consistent with standard principles. Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699. Once a document is signed, a proper arbitration agreement governs all subsequent open book account transactions for medical services unless rescinded by written notice within thirty days of signature. (Code of Civ. Proc. § 295(c).)

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The following blog entry is written from a defendant’s position post-verdict. 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/bus accident case and its proceedings.)

Dr. Jones testified that there were absolutely no objective findings of injury at the time of his medical examination. He testified that references in his medical reports to plaintiff having sustained a strain/sprain injury in the accident were based solely upon history provided by plaintiff and not independent findings. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In plaintiff’s moving papers, she cites Dr. Jones’s July 18, 2002 report where he notes, “Ms. Perry merely sustained mild sprain, strain and contusion type injuries” as evidence that plaintiff was injured. As noted above, Dr. Jones testified that the diagnosis relied upon by plaintiff was based upon the medical history provided by plaintiff and was not supported by any objective findings on examination. The quote from Dr. Jones’s report is essentially just Dr. Jones’s acknowledgment that plaintiff gave a history of contusion and sprain/strain type complaints.

The overwhelming opinion of Dr. Jones was that plaintiff suffers “a clearly factitious pain disorder.” “Factitious” is defined by Webster’s Dictionary as “sham” produced by humans rather than by “natural forces”; or produced by special effort. Dr. Jones substantiates this opinion with numerous references in his initial report to plaintiff’s exaggerated examination responses and inconsistent and nonsensical behavior at examination. Specifically, Dr. Jones noted that plaintiff was waiving her trunk forward and backward while sitting on the edge of her chair during examination, but later, during examination of the low back, she moved the same parts of her body as though she were writhing in pain .

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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 any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

STATEMENT OF FACTS
FACTUAL ALLEGATIONS THAT SUPPORT PRAYER FOR PUNITIVE DAMAGES

On June 16, 2007, shortly before 1:00 p.m., plaintiff, a pedestrian, was safely jogging on the eastern sidewalk of Oak Street, near the intersection of Main Street, in Sacramento. Dr. Black was driving east on Oak Street. Knowingly and intentionally driving in a fatigued and sleepy condition, Dr. Black fell asleep while driving and drove up and onto the raised sidewalk and struck plaintiff from behind. Plaintiff flew violently onto the hood and smashed into the windshield, then onto the roof. (Id.) Plaintiff was carried approximately 59 feet east before being thrown off the top of the vehicle. (Id.) Dr. Black, while still asleep, then dragged plaintiff approximately 38 feet where she ultimately ran over him. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Over the night of June 15-16, Dr. Black was working as a medical resident at Central Hospital in Sacramento, California, which is owned and operated by defendant Sacramento County Medical Center (“SCMC”). Plaintiff alleged that immediately prior to the incident, Dr. Black worked excessive hours, including, but not limited to, an overnight shift after inadequate sleep and without any rest. (Id. 15.)

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