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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.)

In Burgess, Julia Burgess filed a medical malpractice action against obstetrician Gupta and a hospital after her child suffered permanent brain and nervous system damage during delivery. Defendants moved for summary adjudication of the mother’s NIED claim. They argued that the mother could not recover damages for emotional distress because she did not contemporaneously observe the baby’s injuries as required for recovery in a bystander situation. (Burgess, supra, 2 Cal.4th 1064 at 1069-1071.)

The trial court granted defendants’ motion. The appeal court vacated the order on a writ of mandamus. The Supreme Court modified the appeal court opinion, holding: Burgess is permitted to recover damages as a result of the breach of the duty of care arising from the physician-patient relationship between Gupta and Burgess. Gupta’s negligent breach of this duty is sufficient to satisfy the elements of a claim alleged for professional malpractice on Burgess’s behalf. (2 Cal.4th 1064 at 1078. )

The precise question in Burgess was:

Can a mother recover damages for negligently inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of delivery? (2 Cal.4th 1064 at 1069.)

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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 car accident/personal injury case and its proceedings.)

PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ NOTICE OF MEDICAL EXAMINATION OF PLAINTIFF ARE WELL-FOUNDED

The relevant declarations and exhibits thereto paint a clear picture of the Defendants’ intransigent refusal to comply with Code of Civil Procedure §§ 2032.220 and 2032.610, necessitating plaintiff’s proper objections.

Plaintiff’s Notice of Objection set forth objections to defendants’ Notice of Independent Medical Examination, specifically that (a) the examination of a doctor chosen by the defense is not an independent medical examination, but rather a defense medical examination; (b) the date of the examination had not been cleared with Plaintiff or his counsel prior to its setting; (c) the statement defendant is informed and does not believe any clinical or laboratory testing will be necessary is ambiguous, as the statement must state that no clinical or laboratory testing will be performed; (d) x-rays as requested will not be allowed as said x-rays have not been shown to be necessary or indicated; and (e) the clinical and laboratory requests referred to in defendants’ Notice will not be allowed as they are not indicated and such testing is inconsistent with the statement in their notice that “defendant is informed and does not believe any clinical or laboratory testing will be necessary.”

The propriety of plaintiff’s objection to calling the medical examination an “independent medical examination” or “IME” is obvious. Since the examining physician was chosen solely by the defendants and is paid by the Defendants, there is nothing “independent” about his examination of plaintiff, and to suggest by nomenclature that it is “independent” is deliberately misleading and deceptive. (Evidence Code § 352.)

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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.

The repeated failure of the staff to follow well-known protocols for the prevention of pressure ulcers and other conditions to which Katy was susceptible is a gross departure from any standard of care and is evidence of a reckless disregard of health and safety of patients by the managing agents, officers, owners and operators of defendants.

Further allegations of reckless institutional neglect are set out in the complaint, wherein it is alleged that managing agents of Nationwide Hospital, including the Administrator and Director of Nursing, consistently failed to properly train the nursing staff, repeatedly failed to engage in chart review to assure that proper care planning and treatment was occurring, repeatedly failed to assess the competency of the nursing staff and knowing of the neglect of Ms. Smith, took no remedial action.

The complaint further sets out duties which Nationwide Hospital was required to carry out but failed to do so with references to State and Federal regulations. The breaches of duty all relate to the failure to properly initiate a care plan and carry out a care plan to protect Katy Smith from compromise to her health and safety, i.e. the development of pressure ulcers.

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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.)

Defendant James Lee, M.D.’s, Memorandum of Points and Authorities in Support of Michael Lee M.D.’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication
STATEMENT OF FACTS AND SUMMARY OF ARGUMENT

The series of events that culminated in plaintiff Sean Black’s filing of a Complaint for Medical Negligence and Failure To Provide Informed Consent, began on June 16, 2006. On that day plaintiff presented to Universal Surgery Center for a laparoscopic cholecystectomy. After insertion of the bladed trocar by surgeon and co-defendant Dr. Green, a pooling of blood was noted in plaintiff’s pelvic area. The blood was aspirated and its origin was found to be a tear in the mesentery, possibly caused by insertion of the bladed troca. There appeared to be no active bleeding following aspiration.

Vascular surgeon and co-defendant Dr. Smith was summoned for a vascular consultation. Dr. Smith appeared with his partner in vascular surgery and the moving party herein, Dr. Lee, but found there was no additional bleeding. Thereafter, Dr. Green continued with the procedure and removed the gallbladder without complication. Following its removal, Dr. Smith identified aid repaired a laceration in the left iliac vein. Dr. Green then ran the bowel and noted a very small injury to the mesentery which he repaired.

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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.)

Attached hereto as Exhibit 1 is a true and correct copy of the Burks v. Kaiser case with the appendix attached to that opinion, which is a copy of the alleged arbitration waiver form which was held unenforceable by the Burks Court. A comparison of that document with Exhibit C attached to the Notice of Universal Plan Defendants’ Petition to Compel Arbitration and Stay Action shows that they both suffer from the same defect in that the arbitration language is not prominently displayed as required by Section 1363.1.

Because of the defects in the putative arbitration election form at issue, Universal Plan argues that Section 1363.1 and Burks v. Kaiser Plan are inapplicable because federal Medicare statutes preempt state law.

However, defendants’ preemption argument does not prove that Ms. Smith made a knowing waiver of her right to a jury trial in her medical malpractice suit. Whether a provision in a contract will or will not be considered a valid waiver must be determined according to state substantive law.

All that the defendants’ argument amounts to is that federal law will preempt state law to the extent they conflict. The defendants do not inform this court as to which body of substantive law this Court should apply to make the determination as to whether the waiver was valid. Notably, the defendants do not point to the existence of federal substantive or common law governing the subject.

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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 trip and fall/personal injury case and its proceedings.)

STATEMENT OF FACTS

On March 14, 2007, Judy Brown and her husband Kenneth drove to the Universal Mall (“Universal”) in Sacramento, California. Mrs. Brown had been to Universal several times in the past. After two hours of shopping, she exited the mall through the same route that she entered. Mrs. Brown’s husband had exited about ten minutes earlier and she proceeded outside to meet him in the parking lot.

As she proceeded to the car, she was not paying attention to anything in particular and was looking straight ahead. The next thing Mrs. Brown realized was that she had hit the ground and jumped right back onto her feet. She did not feel her foot catch the pavement, nor does she have any evidence as to what might have caused her to fall.

At the time of her accident, Mrs. Brown was wearing flat-soled walking shoes and carrying two bags. Mrs. Brown testified that on the day in question, the area where she traversed was clear of leaves and debris. The weather on the day of the accident was beautiful and sunny. Further, she stated that she had no problems seeing and there were no shadows on the concrete. Plaintiff later measured a raised area between two concrete slabs where she alleges she tripped and found it to be one-half inch or less in height. (See Part 3 of 5.)

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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.)

Neither the California Supreme Court nor the appellate courts have ever held that a single plaintiff car recover more than the MICRA limit for noneconomic damages. To the contrary, the courts have consistently limited the maximum recovery to $250,000, regardless of the number of claims alleged. See Fein v. Permanente Med. Group, 38 Cal.3d 137, 157-164[](1985) a reduction of noneconomic damages to $250,000 when multiple diagnostic errors occurred); Atkins v. Strayhorn, 223 Cal.App.3d 1380, 1394 [ (1990) (limiting a husband and wife to $250,000 each for noneconomic danages); Under section 3333.2, the injured plaintiff’ is entitled to recover noneconomic losses up to $250,000 [i]n any action for injury against a health care provider based on professional negligence.

In addition to Owren being an injured plaintiff, Eileen is also an injured plaintiff, having been awarded damages for loss of consortium. Although her cause of action arises from bodily injury to her husband, the injury suffered is personal to her. “Loss of her husband’s consortium impairs a wife’s interests which are wholly separate and distinct from that of her husband: … the wife’s loss is just as real as it is distinct. She can no longer enjoy her legally sanctioned and morally proper privilege of copulation or procreation, and is otherwise deprived of her full enjoyment of her marital state. These are her rights, not his.”

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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.

FACTUAL ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

The First Cause of Action details the facts which would support a verdict for reckless neglect of an elder on the part of Nationwide Hospital.

It is alleged that Katy was a patient under the care of Nationwide Hospital from September 25, 2007 through October 4, 2007, with a diagnosis of neck fracture. It is further alleged that Ms. Smith suffered from pre-existing paraplegia and, while at Nationwide Hospital, she was plainly dependent upon Nationwide Hospital for virtually all activities of daily living. The complaint goes on to allege that because of Ms. Smith’s condition, Nationwide Hospital knew that she was at high risk for the development of pressure ulcers and that, if they were allowed to develop, they would be difficult to treat because of Ms. Smith’s bed-bound status and that there was a significant risk of serious consequences from their progression.

The First Amended Complaint with specificity alleges that the nurses at Nationwide Hospital knew or were obligated to know that Ms. Smith was required to be repositioned at a minimal interval of every two hours in order for a proper ulcer-prevention care plan to be carried out.

Rather than turning and repositioning Katy every two hours consistently throughout her admission, multiple members of the nursing staff did not turn her at such intervals and did not turn or reposition for periods of 3 hours, 4 hours, and 7 hours at various times during her stay. As a result of said repeated neglect, Katy developed pressure ulcers.

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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.)

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.

THE DECLARATION OF RANDALL BROWN, M.D., CLEARLY ESTABLISHES THAT DEFENDANTS WERE NEGLIGENT AND THAT DEFENDANTS’ NEGLIGENCE PROXIMATELY CAUSED INJURY TO PLAINTIFF

Even though plaintiff should have no obligation to present any evidence since defendants have failed to carry their initial burden of proof, nevertheless plaintiff submits the declaration of Randall Brown, M.D. Dr. Brown has several specific criticisms of Dr. Lee’s level of care and treatment, and he ties these criticisms specifically to the medical history.

First, Dr. Brown has declared that the augmentation surgery was scheduled too soon after Ms. White had given birth, and that this was below the standard of care. The surgery was scheduled only six months after Ms. White had stopped breast feeding her baby.

Second, Dr. Lee advised Ms. White to daily massage her breasts following the augmentation surgery; this was below the standard of care as massaging stimulated milk production.

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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.)

Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendants’ Petition to Compel Arbitration and Stay Action

Defendants seek to enforce a purported arbitration clause in a written contract between plaintiff Summer Smith and the Universal Plan entities. Under California law, the alleged arbitration agreement signed by Ms. Smith and attached as Exhibit C to defendants’ moving papers is not enforceable. Burks v. Kaiser (2008) 160 Cal.App. 4th 1021 dealt with an analogous situation. In that case, the plaintiff in a medical negligence or malpractice lawsuit against Universal Plan had signed an enrollment application form which contained language purporting to constitute a waiver of the plaintiff’s right to pursue a civil action and as agreement that the matter being resolved through Universal Plan’s arbitration plan.

The court, citing Health and Safety Code §1363.1, held that the purported waiver was unenforceable. Because the arbitration language was not prominently displayed as that term was defined in the statute, Universal Plan’s petition to compel arbitration was denied. Despite the clear holding of that case. Universal Plan as the moving party in this motion, asserts that Ms. Smith’s purported waiver complies with California law because the arbitration disclosure is prominently displayed directly above plaintiff’s signature. However, the Burks Court rejected such an argument in plain language:

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