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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
POINT AND AUTHORITIES

The Testimony of Dr. Stuart Raises a Triable Issue of Fact as to Whether Dr. Lee’s Treatment Fell Below the Standard of Care and Was a Substantial Factor in Causing Plaintiff’s Injuries.

To be entitled to summary judgment in his favor, Dr. Lee is required to present evidence that would preclude a reasonable trier of fact from finding it was more likely that not that his treatment fell below the standard of care. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) The testimony of defendant Paul Stuart, M.D., raises a triable issue of fact as to whether the conduct of Dr. Lee was the cause of plaintiff’s injuries.

As set forth in plaintiff’s Opposition to Motion for Summary Judgment, it is undisputed that at some point during his hospital stay plaintiff suffered the following injuries: laceration of the left iliac vein, laceration of the mesentery and small bowel perforation, posterior laceration of the bifurcation of the abdominal aorta and an anterior wall laceration.

Defendant Dr. Stuart’s treatment of plaintiff began on June 19, 2006, when plaintiff suffered from respiratory failure and complications of aspiration pneumonia and a pulmonary embolism. On June 28th, plaintiff’s blood pressure again dropped and a central venous catheter was placed in his groin by Dr. Stuart. It is Dr. Stuart’s opinion plaintiff was already suffering from an internal bleed before he placed the central venous line.

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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.)

[I]t is evident from the terms of the statute that 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 200, italics in opinion.) [Yates was a wrongful death action based on medical malpractice involving six plaintiffs: the widow and five adult children of decedent. Each claimed they sustained injury as a result of the death.]
In upholding the damage cap against plaintiffs’ constitutional challenge, the Yates court relied on the Supreme Court’s prior rulings in Fein v. Permanente Medical Group (1985) 38 Cal.3 137, 158 and American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 368-369.

Plaintiff’s contention that section 3333.2 unconstitutionally abridges the right to a jury trial (Cal.Const., art. I, § 16) is but an indirect attack upon the Legislature’s power to place a cap on damages.

While it is clear section 3333.2 will in some cases result in the recovery of a lower judgment than would have been obtained before the enactment of the statute, it is well established that the Legislature retains broad control over the measure, as well as the timing, of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and that [it] may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest … (italics in original).

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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.)

Defendant states that “Mrs. Brown was concentrating on getting to her car and looking straight ahead.” Plaintiff does not dispute this fact. However, Plaintiff does dispute the inference of negligence attributed to her for not staring closely at the sidewalk to discover a defect on the sidewalk. The law is quite clear on this subject: A pedestrian is not required to fix his eyes on the ground or to be on the constant lookout for danger; rather, he “has the right to assume that it (the sidewalk) is in a reasonably safe condition.” Peters v. City and County of San Francisco (1953) 260 P.2d 55, 59, a California Supreme Court decision. Likewise, Plaintiff had a right to assume that the sidewalk at the Mall was safe to walk on.

Further, the above assertion is irrelevant to Defendant’s trivial defect defense, as it pertains only, if at all, to the issue of contributory negligence.

Defendant also states that the Plaintiff was carrying a lightweight Macy’s bag and her purse at the time of the incident. Plaintiff does not dispute this fact, but asks the question: What relevancy does this fact bear on the Defendant’s motion? The answer is: None.
Defendant then states that Plaintiff had no difficulty seeing at the time of her accident . Plaintiff does not dispute this fact; however, Plaintiff was not required to search the sidewalk for a defect as she was walking on it (Peters, supra, at page 59). So, what relevance does this fact have in this motion or case? T he answer is: None.

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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/personal injury case and its proceedings.)

Plaintiff’s Claim for Emotional Distress Damages Cannot be Bolstered With Evidence of Her Husband’s Rare and Potentially Fatal Lung Disease

Plaintiff seeks to introduce evidence that her husband was diagnosed with a rare lung disease in June 2005 that either will require a lung transplant or may be fatal to bolster her claim for emotional distress damages as a result of the injury she sustained in her fall. Little is known about plaintiff’s husband illness for several reasons, not the least of which is that he is not a part to this lawsuit and, therefore, no discovery has been conducted on the illness. We do know from plaintiff’s deposition testimony and recent reports from counsel that plaintiff’s husband has been able to work to date.

Specifically, plaintiff claims that the illness bolsters the emotion distress associated with her injury because she now has been told that she can no longer work as a dental hygienist, and she may some day need to support her three young children alone without relying on her chosen profession. Despite the parties best efforts to meet and confer over this issue, discussions which resulted in a stipulation to exclude much evidence at trial, this issue remains in dispute.

Evidence of plaintiff’s husband’s unfortunate illness should be excluded at trial. Not only is the health of this nonparty irrelevant to the issues in this case, there is no foundation for the evidence, since plaintiff has not designated the requisite expert to testify about the rage lung disease.

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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 MILTON WHITE’S COMBINED OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Defendants’ Ex Parte Application to Compel the Independent Medical Examination of plaintiff, is both procedurally defective and premature, and should thus be denied in its entirety. Defendants’ motion to compel cannot be made on an ex parte basis, but requires a noticed motion. Defendants’ motion is also premature, as the date noticed for the medical examination of car accident victim plaintiff Milton White has not yet arrived.

Further, defendants’ proposed motion to compel submitted with their Ex Parte Application is equally defective, in that it 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).

Additionally, defendants’ request for monetary sanctions must be denied, not only because of the procedural impropriety of their Ex Parte Application, but also because the prejudice they complain of was visited upon themselves by their own dilatory conduct and their stubborn refusal to adhere to the statutory requirements governing the scope and conduct of defense medical examinations.

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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 Opinion(s) Rendered in Dr. Black’s Declaration Are Not Supported by a Reasoned Explanation and Must Be Rejected

The court stated in Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524, that … an opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment. In Kelley, the defendant moving for summary judgment submitted Dr. Herndon’s declaration, which stated (in pertinent part) as follows:

* Plaintiff suffered a laceration to his left forearm and was treated at UCLA Medical Center on November 25, 1994. Plaintiff testified that his friend Ward contacted Trunk later that day because he had not been given a prescription for the analgesic medication that had been provided while in the UCLA Emergency Department. Trunk, who was covering [calls] for Dr. Berkowitz, provided a prescription for Tylenol with codeine (the same medication the patient had previously been given by Dr. Char at UCLA) and advised that [plaintiff] should be sure to follow up with his primary care physician, Dr. Berkowitz, as instructed by Dr. Char prior to leaving the Emergency Room. Plaintiff placed a call to Trunk later that same day and, upon reporting his status, was again advised of the need to follow up with Dr. Berkowitz. Plaintiff had no further contact with Dr. Trunk.

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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.

DEFENDANTS HAVE FAILED TO CARRY THEIR BURDEN OF PROOF
Defendants Have the Initial Burden of Proving That They Were Not Negligent and That There Is No Causation

The initial burden of proof placed on a defendant seeking summary judgment was described in Bushling v. Fremont Medical Center (2004) 117 CA4 493, 506-507:

Where … a defendant moves for summary judgment and the plaintiff bears the burden of proof by a preponderance of the evidence at trial on the issues that are the subject of the motion, the defendant initially “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not … ” (Aquilar, supra, 25 Cal.4th at p. 8951.)

More specifically, a moving defendant must make a prima facie showing that the plaintiff does not possess, and cannot reasonably obtain, sufficient evidence to establish at least one element of plaintiff’s cause of action. (Id. at p. 854.) If a defendant has met that burden, the plaintiff must then present evidence that would allow a reasonable trier of fact to find in his favor more likely than not. (See id. at p. 852.) If the court determines that the evidence presented by the plaintiff and all of the reasonable inferences drawn therefrom show one or more of the elements of the cause of action only as likely as, or less likely than, an absence of one or more of those elements, it must grant a defendant’s motion for summary judgment. (See id. at p. 857.)

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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.)

Trial Brief of Defendant Paul Stuart, M.D., Re: MICRA Cap (Civil Code Section 3333.2)

INTRODUCTION

This lawsuit involves alleged successive instances of medical malpractice by the defendant medical providers. Plaintiff claims he sustained two injuries: a laceration to the posterior bifurcation of [his] abdominal aorta and injury to the left common iliac vein.

Under the MICRA cap, plaintiff is entitled to recover no more than $250,000 in noneconomic damages with defendants’ potential fault liability apportioned between the original/subsequent treaters.

MEMORANDUM OF POINTS AND AUTHORITIES

PLAINTIFF’S MAXIMUM RECOVERY FOR NONECONOMIC DAMAGES IS $250,000.

Civil Code section 3333.2 provides:

(a) In any action for injury against a health care provider based on professional negligence, the plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage; (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000);

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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 has a long medical history of complaints regarding his lower back, neck, and left leg. Plaintiff was involved in an automobile accident in 1991, during which he reported sustaining back and neck injuries. He received three months of orthopedic treatment following this incident. Plaintiff also reported experiencing back and neck pain after a September 1995 automobile accident. Plaintiff saw a chiropractor for six months following the 1995 incident. Plaintiff later was involved in a mountain bike accident in 2002 following which he reported experiencing back pain. He received five months of chiropractic treatment after the biking accident.

On August 2, 2003 — just one year prior to the subject accident — plaintiff was involved in a rear end automobile accident during which he purportedly sustained soft-tissue, lower back and left leg injuries. Plaintiff received five months of treatment for back and left leg pain. An MRI was taken on November 11, 2003, and revealed mild stenosis due to a disc herniation at L2-3 as well as a posterolateral extrusion at L4-5, which probably was hitting the left nerve root causing the dorsal and plantar foot pain in the lower left extremity. Plaintiff underwent three epidural blocks between November and December 2003. Plaintiff eventually settled the claim against the driver who rear-ended his vehicle through the driver’s auto insurer.

After the subject accident in September 2004, plaintiff consulted with an orthopedic surgeon, Dr. Mick Greene. Records subpoenaed from Dr. Greene reflect plaintiff admitted his belief that the August 2003 accident was the inciting event for his current complaints regarding back and left leg pain. However, plaintiff claims he was essentially asymptomatic at the time of the September 2004 accident, and that the subject accident re-exacerbated his symptoms.

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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/personal injury case and its proceedings.)

ABC HOTEL DISPUTES THE EXTENT OF PLAINTIFF’S CLAIMED INJURY AND DAMAGES

Expert discovery has not been completed for good reason. The parties have continued to work together to obtain all of the records from University Medical Center where plaintiff not only sought a second opinion and underwent additional surgery and treatment, but where she continued to participate in physical therapy for her hand and wrist. Although some records were obtained from UMC (after months of delay), those records referenced additional records that were not produced by the Medical Center. Consequently, an additional subpoena was required.

These records are critical from the defense perspective since they will provide insights into how plaintiff is progressing with the use and function of her left wrist and hand, particularly given her new claim that she can never again work as a dental hygienist. Moreover, both plaintiff’s and ABC Hotel’s experts will rely on the additional records requested from University Medical Center, and therefore, expert depositions cannot take place before those records are obtained.

However, subject to expert testimony, ABC Hotel anticipates that it will dispute the extent of the injuries and damages alleged by plaintiff.

Plaintiff’s Claimed Residual Pain Is Not the Result of the Injury She Sustained in Her September 2005 Fall

Following surgery to repair her broken wrist, plaintiff’s fracture was well healed. As a result, her subjective complaints of residual pain and discomfort are unusual based on the proper repair and healing of this type of fracture and lack of objective findings. Indeed, there is no record of swelling and no redness in the area of the fracture. In addition, there is no need for further treatment, and plaintiff’s symptoms should resolve with the passage of time.

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