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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.)

There is no statutory authority permitting Defendants to apply ex parte for an order compelling the medical examination of the Plaintiff, thus Defendants’ Ex Parte Application for such an order is fatally defective. Additionally, since Defendants’ proposed Notice of Motion and Motion to Compel, submitted concurrently with their Ex Parte Application, fails to state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination” as required by CCP § 2032.310(b), and also fails to include a separate statement of disputed matters setting forth the discovery request, the objection thereto and the reasons why an examination should be compelled, as required by California Rules of Court Rule 335(a)(6), it too is fatally defective.

It would be anomalous, if not absurd, to grant Defendants’ request for an order shortening time to hear a noticed motion to compel that is, in and of itself, procedurally improper and defective.

Moreover, because the date noticed by Defendants for the medical examination of the Plaintiff, on October 24, 2006, has not yet arrived, Defendants’ motion would in any event be premature because the issue has not yet ripened. Plaintiff has indicated to Defendants that he will submit to a defense medical examination provided that Defendants comply with the code sections governing medical examinations.

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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.)

Defendant Universal Mall’s Motion for Summary Judgment.

The instant Motion for Summary Judgment shall be based on the undisputed facts set forth in the Separate Statement of Undisputed Material Facts and Reference to Supporting Evidence accompanying this motion, and the unrefuted evidence set forth in the evidentiary material submitted with this motion referenced therein, on the grounds that these undisputed facts establish that a complete defense to each of the causes of action of plaintiffs Complaint and/or that plaintiff cannot establish an essential element of each of these causes of action. Moving defendant is therefore entitled to summary judgment as a matter of law, pursuant to Code of Civil Procedure 437c.

MEMORANDUM OF POINTS AND AUTHORITIES
Defendant Universal Mall (hereinafter “Universal Mall”) hereby requests the court to award summary judgment in its favor, as no triable issues of material fact exist as to plaintiff’s causes of action against it. Plaintiff alleges the Universal Mall acted negligently and that such tortuous conduct was the proximate cause of her injuries. A negligence cause of action assigns liability to a party when it is found that party owed a duty of care to the plaintiff, breached their duty of care, and that his conduct was the proximate cause of the plaintiff’s injury.

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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.)

THE MISINTERPRETATION OF THE COMPLAINT

Defendant argues that since there is insufficient pleading in Paragraphs 18-20 of the Complaint, the complaint must fail. This is the underpinning of the whole of the Demurrer and is wholly without merit. Defendant fails to cite Paragraph 17 of the Second Cause of Action which incorporates all of the facts plead in the first 16 Paragraphs. The argument is specious at best and justifies the court overruling the Demurrer without further consideration. The elements plead including the course of the care prior to death are provided in the earlier paragraphs.

STATUTORY ANALYSIS

Defendant bases the argument on Welfare and Institutions Code §§15657 and 15657.2 and ignore §15610 et seq. which define Elder Abuse itself. Plaintiff has met the pleading requirements of pleading Elder Abuse as defined by the code. Defendant is mixing an argument that the damages portion of the claim cannot be made on the facts pleaded, and further, defendant attempts to insert a requirement for pleading specificity as if there was a claim for punitive damages.

No such claim has been here made at this time as the interplay between C.C.P. §425.13 and the Elder Abuse statutes has not been litigated or established. Plaintiff fully expects to conduct the appropriate discovery and when sufficient data has been gathered move this court for leave to file an Amended Complaint setting forth claims for punitive damages against the appropriate defendants. (See Part 4 of 4.)

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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.)

UNIVERSAL HOSPITAL IS NOT LIABLE FOR THE CONDUCT OF SUBSEQUENT TORTFEASORS AND, THEREFORE, PLAINTIFFS’ DOUBLY-IMPUTED LIABILITY THEORY LACKS MERIT

As stated above, plaintiff’s contend that not only is Dr. Brown’s conduct imputed to Universal Hospital but the conduct of all subsequent tortfeasors should be imputed as well. Their contentions are incorrect.

The seminal case for subsequent medical treatment liability is Ash v. Mortensen (1944) 24 Cal.2d 654. The California Supreme Court in Ash held that the tortfeasor responsible for the original injury to plaintiff remained jointly and severally liable for injuries occurring during subsequent medical treatment for those injuries. This determination was based on a proximate cause analysis whereby the aggravated injury resulting from subsequent negligent medical treatment was considered foreseeable and a “normal part of the aftermath” of the original injury. (Id. at p. 657; Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1606.) As a consequence, the original tortfeasor becomes jointly and severally liable to plaintiff for those additional, subsequent injuries. (Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 1201-1203.)

In that regard, CACI Instruction No. 3929 provides:

If you decide that [defendant] is legally responsible for [plaintiff]’s harm, [he/she/it] is also responsible for any additional harm resulting from the acts of others in providing aid that [plaintiff]’s injury reasonably required, even if those acts were negligently performed. (Emphasis added.)

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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.

Four of the twenty-one paragraphs in the declaration set forth Dr. Black’s background and the records he reviewed. The next thirteen paragraphs dryly recite passages from the medical records which show that some truly awful things occurred to plaintiff immediately following the breast augmentation surgery:

* Her right breast started lactating;
* As of June 14, 2005 (nine weeks following the surgery) plaintiff had been suffering breast pain and lactation for seven weeks;
* Plaintiff had an adverse reaction to a medication intended to dry up the milk production and ended up in the emergency room;
* The implants had to be removed on June 27, 2005, and during that procedure Dr. Lee found 500 cc of milk in the right breast and 350 cc in the left;
* The breast fluid was found to contain staphylococcus;
* In early July, Dr. Lee removed the drains because they were no longer draining, yet on July 11 plaintiff was found to still have milk drainage;
* Plaintiff consulted with another physician on July 15, who found possible infection which he aspirated, with immediate relief;
* Plaintiff nevertheless was seen in the emergency room soon after, running a fever of 104, and milk continued to drain;
* Another surgery was required on July 18, during which more milk was found in each breast, and scar tissue was found;

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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.)

Thus, this is a singular action involving successive acts of alleged medical malpractice causing plaintiff to sustain injuries that are causally interrelated. Under current case precedent, while each injured plaintiff is entitled to seek noneconomic damages, the maximum recovery permitted in any single medical malpractice action is $250,000…” (Yates, supra, 194 Cal.App.3d 195 at 2), italics in opinion.)

A succinct summary of relevant California case precedent interpreting section 3333.2 is found in Colburn v. United States (1998) 45 F.Supp.2d 787. There, the United States District Court (Southern District) issued a detailed order after the United States moved for summary adjudication of various tort claims of the parents of twins who died shortly after birth at Balboa Naval Hospital. (Id. at 788-793.)

As relevant here, the court allowed the following claims to go forward: (1) Mrs. Colburn’s two wrongful death claims for the twins’ deaths based on medical malpractice in treating her prior to their birth (Colburn, supra, 45 F.Supp.2d 787 at 791-793); (2) Mrs. Colburn’s negligent infliction of emotion distress claim (NIED) as a direct victim of the hospital’s negligence (id. at 793); (3) Mr. Colburn’s claim for loss of consortium (id. at 794). Plaintiffs agreed to voluntarily dismiss Mr. Colburn’s NIED and wrongful death claims. (Colburn, supra, 45 F.Supp.2d 787 at 789-790.)

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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.)

Finally, defendants’ Ex Parte Application for an Order to Continue Trial, Discovery Cut-Off and Time to Designate Expert Witnesses is without merit, as there is no reasonable basis for the relief they are seeking. If defendants would simply agree to conduct their medical examination of the plaintiff in conformity with the code requirements, there is no reason why the defense medical examination of plaintiff cannot proceed on October 24, 2006, thereby obviating the need for any continuance. If, on the other hand, defendants remain steadfast in their refusal to comply with the Code as it relates to the scope and conduct of defense medical examinations, their position can only be construed as a stalling tactic to avoid mediation and trial.

Such tactics do not warrant continuances that would be substantially prejudicial to the Plaintiff, who is prepared to participate immediately in a meaningful mediation in an effort to settle this case and, if necessary, to proceed to trial. The plaintiff should not be further prejudiced by Defendants’ transparent stalling tactics. Accordingly, Defendants’ Ex Parte Application for a Continuance of Trial, Discovery Cut-Off and Time to Designate Expert Witnesses should also be denied in its entirety.

A MOTION TO COMPEL A MEDICAL EXAMINATION CANNOT BE MADE EX PARTE; IT REQUIRES ADHERENCE TO NOTICED MOTION PROCEDURE
Code of Civil Procedure § 2032.250(a) states:

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

In Defendant next states that “Plaintiff has visited Universal Mall on multiple occasions.” Query: Without proving that Plaintiff had traversed over the same section of defective sidewalk prior to the accident, and knew of its existence before the accident, what relevance does this fact have to the Defendant’s argument that the defect was trivial? The answer is: None.

As explained above, Defendant’s Statement of Undisputed Facts consists, in part, of misstatements of the facts regarding the extent and nature of the defective condition of Defendant’s property which caused Plaintiff’s accident. The Statement of Undisputed Facts also includes alleged facts which are irrelevant to Defendant’s Motion for Summary Judgment. Because Defendant’s Statement of Undisputed Facts and supporting evidence is insufficient to support its motion, the motion should be denied.

DEFENDANT’S MOTION SHOULD BE CONTINUED OR DENIED BECAUSE DISCOVERY HAS NOT BEEN COMPLETED

Pursuant to Cal. Code of Civil Procedure §437c(h), if it appears from an affidavit submitted in opposition to a motion for summary judgment that the facts essential to justify opposition may exist, but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make an order that is just ….

An Answer was not filed until July 23, 2009 by Macy’s West, and the order the amended complaint was not signed and filed by the Court until August 10, 2009.

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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.

Plaintiff Katy Smith’s Memorandum of Points and Authorities in Opposition to Defendant Nationwide Hospital and Clinics’ Demurrer to Plaintiff’s First Amended Complaint
INTRODUCTION

Defendant Nationwide Hospital demurrers to plaintiff’s First Amended Complaint on the basis that it fails to plead sufficient facts to support a claim for reckless neglect of an elder in violation of California’s Welfare & Institutions Code §15600 et seq.

Defendant’s demurrer is without merit and is of a type filed as a matter of course in virtually all elder abuse cases. Its principal purpose is to add a burden to plaintiffs bringing such cases which was not intended by the legislature. In point of fact, the legislature in §15600 of the Welfare & Institutions Code expressed as its purpose in enacting the Elder Abuse Statutes to encourage lawyers and others to take up the cause of the neglected elderly because representation had been difficult to obtain previously due to the vagaries of the law.

Plaintiff’s pleading in the case at bar is far more particular in its factual pleading than would be required under standard notice pleading rules. It alleges facts and includes specific charging allegations which if supported by evidence at trial would justify a verdict in plaintiff’s favor on a cause of action for reckless neglect of an elder.

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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 Supplemental Memorandum of Points and Authorities in Opposition to Defendant James Lee M.D.’s, Motion for Summary Judgment, continues below.

If Dr. Stuart is correct then the bleed must have been caused by either Dr. Green’s or Dr. Smith’s conduct during the initial surgery on June 16th or, during the placement of the arterial and femoral line by Dr. Lee on the 24th. Either way, according to Dr. Stuart he did not cause any of the injuries.

The following colloquy is supportive:

Q: Okay. Now here he [Dr. Smith] says in his operative findings: The posterior laceration of the bifurcation of the abdominal aorta and an anterior wall laceration directly behind the first wound of the left common iliac vein. Do you see that?
A: Yes.
Q: Did you cause any of those lacerations?
A: No.
Q: How do you know that?

A: Because I think it would be a – it would be essentially a physical impossibility for me to have done that.

Assuming Dr. Stuart did not cause these injuries, then they had to be caused by either Dr. Smith, Dr. Lee or Dr. Green. At a minimum, Dr. Stuart’s testimony raises a triable issue of fact as to whether or not Dr. Lee caused plaintiffs injuries.

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