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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 malpractice/personal injury case and its proceedings.)

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant Ken Black, M.D.’s Petition to Compel Binding Arbitration and to Dismiss Defendant Ken Black, M.D., Without Prejudice
INTRODUCTION

Defendant Ken Black, M.D. seeks to compel binding arbitration against plaintiffs based on a Physician-Patient Arbitration Agreement signed by plaintiff Heidi Hall. Because Defendant Black’s arbitration agreement fails to comply with the requirements of Code of Civil Procedure Section 1295, Defendant Black’s Petition to Compel Arbitration should be denied. Further, because the agreement fails to comply with the requirements of Code of Civil Procedure Section 1295, the agreement is also subject to challenge on the grounds of being a contract of adhesion and unconscionable. For the reasons set forth below, Plaintiffs respectfully request that the Court deny Defendant Black’s petition to compel arbitration. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

BACKGROUND
This medical negligence action brought by the Plaintiffs arises from negligence which occurred during Ms. Hall’s labor and obstetrical delivery at Defendant National Hospital in June of 2008. The delivering doctor was Defendant Ken Black, M.D. Plaintiff Heidi Hall’s baby died during delivery and Ms. Hall suffered serious, life threatening injuries from delay of diagnosis of a ruptured uterus.

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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 automobile accident/personal injury case and its proceedings.)

Defendant Virginia Hall submits the following Memorandum of Points and Authorities is support of her Motion for New Trial or, in the alternative, remittitur:

INTRODUCTION

A new trial is warranted due to the imposition of excessive damages that were unsupported by the evidence. In the interests of justice, Ms. Hall’s motion for new trial or, in the alternative, a reduction in damages must be granted.

BACKGROUND

This action arises out of an automobile versus motorcycle accident which occurred at 8:35 p.m. at the intersection of College Street and Ash Boulevard in Sacramento, California on June 12, 2004. Plaintiff was operation the intersection with Ash. As plaintiff entered the intersection, he collided with the 2002 Jaguar S-Type driven by defendant, Virginia Hall, who was turning left from southbound College Street onto eastbound Ash.

The matter proceeded to trial on February 2, 2008. Plaintiff testified at trial that following the accident with Ms. Hall, he stood up and walked over to the curb. When he got to the curb, he sat down and felt pain in his back, as well as pain and weakness in his left leg. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff was taken to University Hospital following the incident, with complaints of pain in his lower left extremity. Plaintiff did not sustain any broken bones from the accident.

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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 birth injury/personal injury case and its proceedings.)

Plaintiffs’ Opposition to Defendant Ana Lee’s Motion for Summary Judgment; Memorandum of Points & Authorities
Summary of Argument

The defendant’s motion rests on evidence for which there is virtually no foundation and no authentication. Because the defendant bears the burden of proof, its reliance upon inadmissible evidence requires denial of the motion (regardless of whether the plaintiff offers countervailing evidence. Further, even if the defendant could overcome the deficiencies of her evidence, the testimony of the Dr. Jason White (a board certified obstetrician and Clinical Professor of Obstetrics and Gynecology) establishes that Dr. Lee breached the standard of care. The testimony of Dr. White also establishes that defendant Lee’s substandard care was a substantial factor in causing or contributing to George Jackson’s catastrophic injuries. For more information you are welcome to contactSacramento personal injury lawyer, Moseley Collins.

Statement of Facts
Ms. Jackson’s Labor and Delivery Of Son George Jackson

Ms. Jackson was a pre-natal patient of the NorCal Perinatal Medical Group on January 26, 1998, the date she arrived at Universal Hospital. Ms. Jackson’s expected due date was February 2, 1998, so she was considered at full term for this delivery.

Ms. Jackson developed gestational diabetes during her pregnancy with George. Because Ms. Jackson had gestational diabetes, she was at greater risk for perinatal (near delivery) complications.

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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 malpractice/birth injury case and its proceedings.)

In Marina Emergency Medical Group v. Superior Court (2000) 84 Cal.App.4th 435, the defendant emergency room doctor was negligent in treating plaintiff’s lacerated thumb and that injury was later aggravated by the negligence of plaintiff’s personal physician. (Id. at p. 437.) At the trial against the ER doctor only, plaintiff successfully moved to exclude all evidence of the subsequent medical treatment, preventing the jury from allocating fault among the various individuals responsible for plaintiff’s injury. (Id. at pp. 437-438.)

On appeal, plaintiff argued the ER doctor was an “original tortfeasor who was vicariously” liable to plaintiff for the subsequent tortfeasor’s negligence. Therefore, according to plaintiff, the successive tortfeasor liability law eliminated the requirement of apportionment of fault under Proposition 51 in the same manner as respondeat superior eliminated apportionment in employer/employee cases. (Id. at p. 440.) The Second District Court of Appeal disagreed and held that the ER doctor was allowed to reduce his liability to plaintiff through apportionment of fault among all responsible parties.

The Marina Court distinguished the line of cases involving pure respondeat superior (i.e., employer/employee) or imputed liability based on statute. The Marina Court correctly recognized that the “subsequent medical treatment” liability theory is not vicarious liability as that term is normally understood. The original tortfeasor’s liability for subsequent negligence is not derivative of the subsequent tortfeasor’s conduct. (Id. at p. 440.) Rather, the law holds the original wrongdoer liability because it regards the subsequent medical treatment to be proximately caused by the original injury. (Ibid.)

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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 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/personal injury case and its proceedings.)

Approximately one year after his discharge, on or about August 31, 2007, plaintiff filed the instant lawsuit for medical negligence and failure to inform against several defendant, including Dr. Lee. Specifically he claims that Dr. Lee assumed responsibility to locate and repair injuries caused by Dr. Green during the laparoscopic cholecystectomy on June 16, 2006, but failed to do so necessitating cardiac resuscitation and subsequent exploratory laparatomy and bowel repair surgeries.

The expert testimony of Dr. White refutes the suggestions that Dr. Lee’s treatment of plaintiff fell below the standard of care or that it caused any alleged injuries. Nevertheless, plaintiff has initiated this lawsuit against Dr. Lee, claiming damages according to proof at trial. In order to prevail on his claim for damages against Dr. Lee, he must demonstrate that the care and treatment rendered to him by Dr. Lee fell shy of the applicable standard of care.

Defendant Dr. Lee brings this motion on the following grounds:

1) The cause of action for medical negligence/failure to provide informed c onsent against this moving defendant lacks merit because the care and treatment rendered to Sean Black by vascular surgeon Dr. Lee was within the standard of care at all times.

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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/brain injury case and its proceedings.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant Universal Medical Center’s Memorandum of Points and Authorities in Support of Its Demurrer To Plaintiff’s Complaint
INTRODUCTION

The demurrer of Universal Medical Center (“UMC”) to plaintiff’s complaint and its five causes of action should be sustained without leave to amend for the following reasons:

Plaintiff’s decedent died on September 27, 2007. Plaintiff’s complaint was filed on April 27, 2009. Plaintiff’s complaint is thus outside the statute of limitations for wrongful death cases based upon medical negligence, as set forth in C.C.P. §340.5.

Plaintiff’s complaint sets forth five causes of action, all of which seem to be alleging various theories supporting the same tort; i.e., all five causes of action appear to be restated causes of action for wrongful death based upon medical negligence. Yet, all five causes of action are set out on the Judicial Council forms for General Negligence. Plaintiff cannot claim general negligence under the circumstances presented by the facts of this case.

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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/personal injury 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, U.C. Davis Medical Center, Mercy, or Sutter.

As set forth below, the development of pressure ulcers in this paraplegic patient was not the result of an isolated episode of inadvertence by a Nationwide Hospital employee. Rather, this entirely preventable injury was caused by repeated episodes of neglect over a period of days by multiple employees of Nationwide Hospital.

In order to be entitled to enhanced remedies, plaintiff must prove that the defendant acted with recklessness, i.e. engaging in conduct while appreciating the probability that the conduct would cause harm. The First Amended Complaint sets forth facts alleging such conduct on the part of managing agents of its acute care hospital. They describe a systemic breakdown in the carrying out of well-established pressure ulcer prevention protocols by multiple caregivers over multiple days. That breakdown is alleged to have been caused by improper training, improper supervision, improper chart review, improper competency assessment and/or improper staffing levels, or a combination of these factors.

The fact that an extremely vulnerable and virtually helpless patient was permitted to develop pressure ulcers is all the more culpable because pressure ulcers are preventable without extraordinary effort on the part of an acute care hospital The development of Stage 3 or 4 pressure ulcers at an acute care hospital has been categorized by the Centers for Medicare and Medicaid Services (CMS) as a Never Even because they are reasonably preventable through application of evidence based guidelines. Centers for Medicare & Medicaid Services Program, Changes to the Hospital Inpatient Prospective Payment Systems and Fiscal Year 2008 Rates; Final Rule ; Federal Register (2007) 72(162); 47130-48175.

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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 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/personal injury case and its proceedings.)

On June 28, 2006, Dr. Stuart placed a central venous catheter and an arterial catheter in Plaintiffs right groin due to hypotension. A bedside exploratory laparatomy was performed in the ICU by Dr. Green, with the assistance of Dr. Smith. During the procedure a major hemoperitoneum with fresh and active clot, as well as generalized oozing, was observed. Plaintiff was actively bleeding so he was transported to the operating room for another exploratory laparatomy by Green, with the assistance of Dr. Smith and Dr. Lee. A posterior laceration of the bifurcation of the abdominal aorta and an anterior wall laceration directly beneath the first wound of the first common iliac vein were four d. Both lacerations were repaired with sutures. The abdomen was again left open after this procedure.

On June 30, 2006, plaintiff underwent another exploratory laparotomy and washout at the hands of Dr. Green. There was no evidence of infectious collections or intra-loo abscesses and all bowel and viscera were completely viable. On July 3,2006, Dr. Green closed plaintiff’s abdomen. Thereafter plaintiff’s recovery was pretty uneventful until the time of his discharge on July 21,2006.

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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 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/personal injury case and its proceedings.)

The Burgess court further remarked: We trust the ability of the trial courts to stringently enforce the limitations on damages in cases of this type through appropriate evidentiary rulings and jury instructions. (2 Cal.4th 1064 at 1085.) Thus, the Court expressed its faith in California’s trial courts to enforce MICRA. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In short, assuming a plaintiff’s verdict in this action, he is entitled to a maximum recovery of no more than $250, 000 in general damages. (Civil Code, § 3333.2, subd.(b).) Assuming liability is found, each culpable defendant will be severally liable for h[is] allocated share of [plaintiff’s] noneconomic damages. (Marina Emergency Medical Group v. Superior Court (2000)84 Cal.App.4th 435, 441.) In this respect, there is no medical malpractice exception to Proposition 51 [Civil Code section 1431.2 (several liability of successive tortfeasors for non-economic damages)]. (Ibid.)

It is anticipated that plaintiff will raise the primary rights theory to support his claim of entitlement to $500,000 in general damages. An explication of that rule is found in Landerros v. Flood (1976) 17 Cal.3d 399. There, a minor sued a physician and hospital for malpractice, consisting of the failure to properly diacnose battered child syndrome and the violation of defendants’ statutory duty to report that diagnosis to the proper authorities.

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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 brain injury/personal injury case and its proceedings.)

Delaney v. Baker (1999) 20 Cal.4th 23, is cited extensively by Defendant. Unfortunately, it does not support Defendant. The decision specifically holds that medical malpractice and Elder Abuse are separate causes of action. After holding that the statute is ambiguous, the court held that “if the neglect is ‘reckless’ or done with ‘oppression, fraud or malice,'” then the action falls within the scope of section 15657 and as such cannot be considered simply “based on … professional negligence” within the meaning of section 15657.2. (Delaney at 28.) Plaintiff has pleaded that the failure to restrain and the failure to treat decedent in this matter was at least reckless.

The pleading standard has been met and defendants would have the court make a factual determination that the actions were not “reckless” at the pleading stage which is an improper request. Delaney is not a case that interprets the scope of pleadings. It is a decision that interprets the scope of the statute. It cannot be cited as setting forth pleading requirements as Defendant attempts in the Demurrer.

The result is relatively simple. Plaintiff is entitled to and does state a cause of action for Elder Abuse, whether the proof presented at trial is sufficient to take the damages outside of the scope of ordinary negligence (15610.57) and into the scope of enhanced damages (15657 and 15657.2) is a separate issue. However, Plaintiffs submit that sufficient facts have been plead to meet the pleading standards as to this damage issue.

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