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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.)

Use of the res ipsa loquitur doctrine is especially suited to a medical or dental malpractice setting in which an unwitting and often unconscious or semi-conscious patient is at an evidentiary disadvantage because of his or her inability to demonstrate what occurred in the hospital or surgical room setting. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 945.) In this case, Plaintiff was unconscious at the time he sustained these injuries and cannot say with a reasonable degree of probability which defendant was negligent. However, it is undisputed he was injured. As affirmed by Dr. Chin, the type of injuries sustained by Plaintiff do not occur where due care is used and the proper practice is followed.

With respect to the issue of control, the Supreme Court in Ybarra v. Spangard (1944) 25 Cal.2d 486, held, because “[t]he control at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant … this, we think, places upon them the burden of initial explanation … It should be enough that the plaintiff can show an injury resulting from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make. ” (Id. at pp. 492-493.) As discussed above, plaintiff’s injuries were caused by surgical instruments within the exclusive control of the defendants.

Plaintiff is therefore entitled to the res ipsa loquitur presumption and the burden is shifted to Dr. Lee to produce evidence which proves he was not negligent in his treatment and care of Plaintiff. Plaintiff has met his burden to show the legitimacy of the issues raised in his pleadings. Public policy favors a trial on the merits and a determination by the jury on the contested issues of material fact.

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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.)

GENUINE TRIABLE ISSUES OF FACT EXIST SUFFICIENT TO JUSTIFY THE COURT’S DENIAL OF DEFENDANT UNIVERSAL MALL’S MOTION FOR SUMMARY JUDGMENT

In support of its motion, Defendant has offered its separate statement of undisputed facts and supporting evidence, asserting that these facts and supporting evidence warrant a granting of its motion on the theory that Plaintiff Judy Brown is unable to prove that Defendant had a duty of care toward her. It is not the burden of Plaintiff to disprove the Defendant’s lack of duty defense; rather, the burden of proof is on the defendant to prove, by evidence, that this defense is justified. See Cal. Civ. Code § 437(c)(p)(2).

In its Separate Statement of Undisputed Material Facts, in support of its trivial defect/no duty of care defense, Universal Mall states that her own measurement of the lip she alleges caused her to fall is about 1/2 inch . In support of this alleged undisputed material fact, Defendant cites Plaintiff’s deposition testimony and refers to the photograph of the sidewalk, taken by Plaintiff’s husband, Kenneth. Plaintiff disputes this alleged fact. As stated in the Declaration of Judy Brown, she misstated the height of the elevation of the upraised portion of the sidewalk. It was actually about one-inch in height, not one-half inch in height. See Paragraph 6 of Plaintiff’s Declaration.

Further, the photographs taken by Kenneth Brown of the defective area of the sidewalk show that the upraised portion of the sidewalk measures about one-inch. And, as stated in the Declarations of Judy Brown and Kenneth Brown, the defective condition of the sidewalk consisted not only of a one-inch elevated portion of the sidewalk, but also a gap between the portions of pavement where she tripped and fell, measuring approximately one inch.

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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.)

MEMORANDUM OF POINTS AND AUTHORITIES
BACKGROUND

Plaintiffs’ decedent suffered a stroke in 2001. She was hospitalized through February 19, 2002 when she was transferred to Defendant Nationwide Skilled Nursing Facility with orders that Posey restraints be used in view of the loss of use of one side of her body and confusion which could result in injury. Defendant chose to ignore the orders and on her first night in the SNF decedent got out of bed apparently not remembering that she could not walk normally, fell and hit her head.

A staff person for Defendant SNF heard her fall and eventually went to check on her. She was found on the floor with a bruise/abrasion on her forehead. She was anti-coagulated to prevent further strokes and presented a clear risk of developing a sub-dural hematoma, a la Chick Hearn of the L.A. Lakers. The facility chose to do nothing until she was checked at about 7:00 in the morning and pronounced good. Finally, at about noon, when she started to present with severe problems showing loss of mental facilities Defendant decided that she should be sent to the hospital to be checked out.

It was too late, the sub-dural hematoma had grown to the point where it was not operable by the time decedent arrived at the hospital. The barn door had been closed after the animals had escaped. Decedent was, however, a strong person and managed to hold on at home in a severely debilitated state through her death on April 25, 2002.

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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 Injury Is Not the Type That Occurs Absent Negligence on the Part of the Defendants. Thus, the Burden of Persuasion Shifts to Dr. Lee to Come Forward with Evidence to Disprove His Negligence.

During the course of the cholecystectomy and the subsequent treatment by the Defendants in this matter, Plaintiff sustained 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. (See Dr. Green’s June 16, 2006, Operative Report; see also, Dr. Smith’s Operative Report, June 28, 2008.) The injuries discovered on the 28th to the abdominal aorta and iliac vein are iatrogenic injuries (instrument caused), which do not occur absent someone’s negligence.

Although all the defendants in this case deny their own culpability, each admits that these injuries were iatrogenic. Thus, plaintiff is entitled to a res ipsa loquitur presumption and the burden shifts to the defendants to produce evidence which establish they did not cause one, or all, of plaintiff’s injuries.

The foundational or basic facts of the res ipsa loquitur presumption are well established. They are that the injury (1) is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) is caused by an agency or instrumentality within the exclusive control of the defendant; and (3) is not due to any voluntary action or contribution on the part of the plaintiff… (Slater v. Kehoe (1974) 38 Cal.App.3d 819, 829; Ybarra v. Spangerd (1944) 25 Cal.2d 486, 490.) When these prerequisites are met, the trier of fact is allowed to assume existence of presumed fact unless defendant introduces evidence to contrary. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943.)

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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 sexual harassment/personal injury case and its proceedings.)

ARGUMENT

The plaintiff has stated sufficient facts of discrimination in employment, (First Cause of Action), intentional infliction of severe emotional distress, (Second Cause of Action), and actual controversy, (Third Cause of Action), Code Civ. Proc. sec. 430.10 (e). Each cause of action in the pleading is written clearly, unambiguously, and with certainty as to all facts and elements for the causes of action. Code Civ. Proc. sec. 430.10 (f).

If there be any other reason that the pleading must be repaired, an order sustaining a demurrer without leave to amend is reviewable for abuse of discretion “even though no request to amend the pleading was made.” Code Civ. Proc. sec. 472c(a); see Kolani v. Gluska (1998) 64 CA4th 402, 412, 75 CR2d 257, 263.

The plaintiff has thoroughly reviewed the pleading before filing it and it does not contain a request to amend the pleading. However, it may be considered an abuse of discretion if a potentially effective amendment is “both apparent and consistent with plaintiff’s theory of the case.” Camsi IV v. Hunter Technology Corp. (1991) 230 CA3d 1525, 1542, 282 CR 80, 89. The outcome of this case is important not only to the plaintiff’s future and her plans to marry an employee, but for a large public interest who have received services for over twenty years from the defendants.

CONCLUSION
Plaintiff respectfully requests the demurrer be denied and the counts answered.

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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.)

A medical report does not meet the requirements of the business records exception. The report was not made in the regular course of business. There is no evidence that a report is made for each patient. In fact, it is clear that some reports were prepared not for the doctor but, in this case, “to whom it may concern.”

The reports cannot qualify as a business record because there is no indication whatsoever that the reports were made at or near the time of the act, condition or event. In fact, the medical reports are prepared long after any treatment or care was rendered to the plaintiff. It is clear that the reports were prepared at or near the conclusion of treatment.

Furthermore, unless the custodian of records of the physician testifies as to the identity and mode of preparation of the medical reports, the reports are also inadmissible as hearsay.

Additionally, the business record exception pertains to a record of an act, condition or event. Any diagnostic opinion or opinion as to prognosis is not a statement of an act, condition or event.

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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.)

In Delk v. Mobilehomes, Inc. (1953) 118 Cal.App.2d 529, the plaintiff was injured while doing work underneath a mobile home belonging to the defendant. A support jack had given way on account of damp ground conditions, leading to the lowering of a support beam which thereby struck plaintiff. The trial court directed a verdict in favor of the defendant, and the Court of Appeal affirmed. The Court held that the ground conditions were open and obvious, and that defendant was not liable for injuries therefrom. The Court held (at 532-533):

An invitor is not required to give an invitee warning or notice of obvious danger but is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses.

In Powell v. Stivers (1951) 108 Cal.App.2d 72, the plaintiff tripped and fell over an electrical cord lying on the floor, nestled between a piano and the wall. The plaintiff filed suit against the building owner, claiming that the owner had a duty to warn of or remove the cord from the ground. Defendant moved for a nonsuit, which the trial court granted. The Court of Appeal affirmed, finding that the defendant could not be held responsible for a condition that would be apparent to others, and that the electrical cord was patent, an open and obvious danger. Id. at 73-74.

Based on well-established precedent, ABC Hotel owed no duty to warn plaintiff of the location of her and her companions’ seven to eight pieces of luggage because they were open and obvious to any reasonable person using reasonable care to observe their environment (e.g. watching where one is walking). The accident occurred at approximately 4:30 p.m. of a summer afternoon in September (pre-daylight savings change).

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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.)

PRINCIPLES REGARDING OSTENSIBLE AGENCY

In California, an agency relationship between a principal and an agent can be actual or ostensible. (Civ. Code, § 2298.) An example of an actual agency relationship is the relationship between an employee (the agent) and an employer (the principal). (Civ. Code, § 2299.)

An agency is ostensible where the principal causes a third person – intentionally or through negligence – to reasonably believe that the agent is acting on the principal’s behalf. (Civ. Code, § 2300.) Under Civil Code section 2334, a principal is bound by the acts of his ostensible agent but only to those persons, without fault, who have acted in good faith on the conduct of the agent. (Civ. Code, § 2334.) The issue of ostensible agency is normally a question of fact and the burden of proof rests with the party asserting the existence of that type of relationship. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1458; Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 502-503.)

In Mejia, the California Supreme Court addressed the principle of ostensible agency in the context of patients at hospitals. In Mejia, plaintiff sought treatment in an emergency room at Community Hospital of San Bernardino for neck pain and stiffness. Following X-rays, the radiologist reported that he saw a congenital fusion of the neck but nothing more. It was later discovered plaintiff’s neck was actually broken and she was paralyzed. The hospital, who was not the radiologist’s employer, obtained a nonsuit and Fourth District Court of Appeal reversed.

The Mejia Court examined prior judicial decisions and existing statutes applicable to ostensible agency and recognized that plaintiff must establish at least three elements in order to prove ostensible agency: (1) The patient deals with the physician with the belief that the physician is authorized to action on behalf of the hospital and the belief is a reasonable one; (2) The patient’s belief is generated by some act or neglect of the principal/hospital; and (3) The patient relying on the agent’s apparent authority is not guilty of negligence. (Id. at p. 1456-1457.)

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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 THE BURDEN OF PROVING THAT THEY HAVE A COMPLETE DEFENSE OR THAT ONE OR MORE ELEMENTS OF PLAINTIFF’S CAUSE OF ACTION FOR MALPRACTICE CANNOT BE ESTABLISHED

As the Court is aware, a defendant moving for summary judgment must show either that there is a complete defense to the cause of action, or that one or more elements of the cause of action (for medical negligence) cannot be established. Code of Civil Procedure section 437c(o)(2). A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of plaintiff’s allegations as a matter of law. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.

A defendant moving for summary judgment must show it is entitled to judgment with respect to all theories of liability asserted by the plaintiff. Lopez v. Superior Court (Friedman Bros. Inv. Co.) (1996) 45 Cal.App.4th 705, 717.

The moving party has the burden of establishing evidentiary facts sufficient to entitle that party to a judgment as a matter of law. Code of Civil Procedure section 437c(c); Vesely v. Sager (1971) 5 Cal.3rd 153, 169. The moving party’s evidence is strictly construed in determining whether an essential element of the claim has been negated.

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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 the instant case, Plaintiff’s theory of the liability of Defendant Universal Mall is neither based upon or determined by the burden of proof set forth in the Government Code. And, as one can see, based on the discussion of liability in the Fielder case, the court focused on the issue of what is a “dangerous condition” of public property, citing numerous cases where the defendant was always a public entity.

However, even in Fielder, the court conceded, on the issue of whether a particular condition is a dangerous or defection condition, that other courts, such as the court in Gentekos v. City and County of San Francisco (1958) 163 Cal.App.2d 691, 309 P. 2d 943, have held that whether a condition is dangerous or defective is generally a question of fact. See Fielder, at p. 730. But again, as stated, the Fielder decision is a narrowly construed case, as it only applies to premises liability actions against public entities in California.

Returning to the decision in Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, cited by Defendant, the defect in that case was an elevation on the sidewalk that was less than one-half inch at its highest point. It is no wonder that the court considered this to be a trivial defect. Contrast that defect with the one in Plaintiff Judy Brown’s case: a one-inch elevation and a one-inch gap between the sidewalk pavers. (See Part 7 of 9.)

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