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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.)

Assuming For Argument’s Sake That This Court Finds That Dr. Lee Has Met His Initial Burden of Proof, Plaintiff Has Demonstrated The Existence of A Triable Issue of Material Fact as to Negligence and Causation.

As set forth above, only if defendant is successful in meeting his burden of proof does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, citing Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) The evidence of the party opposing the motion must be liberally construed. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal. App.4th 184, 189.)

Assuming for the sake of argument that Dr. Lee did meet this burden, the burden of proof then shifts to plaintiff, who has made a prima facie showing of the existence of a triable issue of material fact through the declaration of his expert, vascular surgeon Keith Chin, M.D. Thus, a triable issue of fact exists as to whether or not Dr. Lee’s conduct fell below the standard of care and whether that conduct was a substantial factor in causing plaintiff’s njuries.

There Is a Triable Issue of Fact as to Whether Dr. Lee’s Conduct Fell Below the Standard of Care.

As a Board Certified General Surgeon with a fellowship in vascular surgery, Dr. Chin is intimately familiar with the anatomy of the abdominal and thoracic cavities, including the management of diseases and trauma affecting all parts of the vascular system, arteries and veins, except that of the heart and brain, and the standard of care required by a vascular surgeon. Dr. Chin’s opinions are substantiated by the evidence, including plaintiffs medical records and the deposition testimony of Dr. Green, Dr. Smith, Dr. Lee, Dr. Stuart, and Dr. Stein.

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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 medical malpractice/personal injury case and its proceedings.)

PROPOSED SPECIAL INSTRUCTION

In lieu of CACI 430, Defendants request the following instruction regarding causation be given to the jury:

Causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. Jones v. Ortho Pharmaceutical Corp (1985) 163 Cal.App.3d 396, 402-403.

This instruction not only accurately reflect the necessity of competent expert testimony in proving causation as required by Bromme, Id., Landeros, Id., Jambazian, Id., and Jones, Id., it also reflects the requirement that causation must be proven within a reasonable medical probability which is an accurate reflection of the current law governing the elements of causation in a medical negligence action.

CONCLUSION
Based upon the foregoing, Defendants respectfully request that the jury be instructed with the following special jury instruction concerning causation in lieu of CACI 430:

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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 its brief, Defendant cites the case of Kasparian v. Avalonbay Communities. Inc. (2007) 156 Cal.App. 4th 11, 66 Cal.Rptr. 3d 885 of the proposition that a court may decide that a sidewalk defect is trivial. The Kasparian decision is instructive. There the plaintiff sued his landlord for negligence and premises liability, alleged that she tripped and fell over a recessed drain on a walkway. The trial court granted the defendant’s motion for summary judgment on the ground that the recessed drain was, as a matter of law, an obvious and trivial defect, negating any duty of care by the defendant-landlord. The tenant-plaintiff appealed, and the court of appeal reversed the judgment on the ground that reasonable minds could differ based upon reviewing the photographs depicting the defective condition of the walkway, where the defect was trivial or open, or obvious.

Likewise, in the instant case, reasonable minds could differ on whether the combination of the upraised portion of pavers with a gap between the sections of pavers constitutes a dangerous property condition, or a trivial defect. Remember, we have two defects in the sidewalk where Plaintiff Judy Brown tripped and fell.

Defendant also cites the case of Caloroso v. Hathaway (2004) 122 Cal.App. 4th 922, 19 Cal.Rptr. 3d 254 in its brief, for the proposition that the defective condition in the instant case was trivial as a matter of law. However, Caloroso is distinguishable on its facts. There, the issue was whether a slight crack in a walkway was a trivial defect.

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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.)

Plaintiffs’ Opposition to Demurrer of Defendant Nationwide Skilled Nursing Facility and Memorandum of Points and Authorities

Plaintiffs file their Opposition to Demurrer of Defendant Nationwide Skilled Nursing Facility to the Second Cause of Action in of Plaintiffs’ Complaint currently set for hearing. The Opposition will be based on the following:

1. Defendant has failed to properly deal with the content of the Complaint in that the initial basis for the Demurrer is that Paragraphs 18-20 do not state sufficient facts. Defendant does not cite the court to Paragraph 17 which incorporates all of the facts stated in the First Cause of Action. Thus, no basis for the Demurrer has been stated.

2. Plaintiffs have pleaded sufficient facts, including a 10-hour delay in treating a patient with a head injury who was on anticoagulant therapy, was aged, and had suffered a stroke. Further, Plaintiff has pleaded that Defendant ignored direct orders of the forwarding physician that decedent be restrained to prevent exactly the situation that occurred.

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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.)

The actual causation is their denial to allow their employees to marry any person by their employment contract. Their reasons for the outrageous conduct cite an abuse of power and the need for that abuse of power due to the plaintiff and employee being clients and once homeless. The defendants are completely knowledgeable of the plaintiff’s susceptibility to emotional distress and their outrageous conduct is of an intentional nature of unreasonable acts to all humans under the laws of the State of California and unlawful contracts. The plaintiff further seeks exemplary damages.

The plaintiff is seeking damages for the injury of the third cause of action for declaratory relief. The equitable relief is necessary and proper due to there being an unlawful contract denying her the right to marry one person, monetary damages alone would not remedy this controversy. Declaratory relief is necessary and proper for reason of public interest in that the unlawful employment contract and discriminatory hiring policies apply to all employees, applicants for employment, and clients, equally, and not only to the plaintiff. Declaratory relief is necessary and proper because the plaintiff has exhausted every administrative remedy, TAC, dated 02/05/2007.

The plaintiff clearly states that she is protected by reason of age by the Cal. F.E.H.A., Gov. Code sec. 12900 et seq., (in addition to the other reasons she has been denied a job for which she was qualified and that job was given to another person), TAC, dated 02/05/2007. (See Part 5 of 5.)

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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.)

The Barragan Court recognized that a wrongful life action exists in favor of the plaintiff child where the child proves the defendant negligently failed to diagnose and warn the parents that their baby had a probability of being born with a genetic ailment or disability and where the baby is in fact born with that ailment or disability. (Id. at p. 1004.) In that case, however, neither element existed.

During the period of time where the mother had the right to abort her pregnancy, the pregnancy was progressing normally and there was no indication that the plaintiff twins had any defects that were substantially certain to occur. (Id. at p. 1005.) Therefore, Dr. Lopez had no duty to advise the mother that she had a right to abort her child. Stated differently, Dr. Lopez had no duty to advise the mother of a non-existent probability of harm to the twins. Once the mother began experiencing complications with her pregnancy, the twin fetuses were already viable and it would have been a breach of the standard of medical care to offer an abortion to the mother. (Id. at p. 1006.)

In addition, the medical expert testimony established that nothing done by Dr. Lopez caused any injury to the plaintiff twins. The expert testimony established both that cerebral palsy occurs in the absence of professional negligence and there was no test Dr. Lopez could have performed that would have predicted the twins would be born impaired. (Id. at p. 1006.) (See Part 7 of 10.)

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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.)

The court in Johnson v. Superior Court, supra, confirmed the Kelly court’s holding and rationale. It held: [A]n expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Ciation.] (Johnson v. Superior Court, supra, (2006) 143 Cal.App.4th 297, 308.)

As in Kelly and Johnson, supra, Dr. Lee submits the declaration of Dr. White in support of his motion for summary judgment. Dr. White concludes Dr. Lee’s conduct was within the standard of care. However, Dr. White’s declaration consists solely of legal conclusions, is unsupported by adequate factual underpinnings, and is therefore deficient. Dr. White’s declaration fails to address Dr. Lee’s affirmative duty, as a vascular surgeon, to inspect, discover and repair all the sources of bleeding.

Dr. White acknowledges Plaintiff had a laceration of the bifurcation of the abdominal aorta and an anterior wall laceration; however, he ignores the fact that Dr. Lee failed to identify these lacerations during the surgery on June 24th. Dr. White offers no explanation as to when, if not on the 16th or the 24th, these injuries occurred. Further, Dr. White offers no explanation as to how these injuries occurred or who, if not Dr. Lee, caused them. Or, if Dr. Smith, Dr. Green or Dr. Stuart caused the injuries, then why did Dr. Lee fail to discover them? Moreover, Dr. White fails to discuss how the procedures employed by Dr. Lee, including but not limited to the placement of the arterial and femoral lines, could not have caused plaintiff’s injury, he simply concludes it did not.

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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.)

DR. SMITH

During the course of plaintiff’s surgery on June 16th, Dr. Smith placed surgical clamps in the area of the bifurcation of the abdominal aorta. As the vascular surgeon it was Dr. Smith’s obligation and duty to place these clamps in a manner which did not cause injury to plaintiff. If Dr. Smith caused injury to either the aorta at its abdominal bifurcation or the left common iliac vein via the placement of the surgical clamps, his conduct fell below the stand ird of care and was a substantial factor in causing plaintiff a separate injury. Dr. Smith has presented no evidence that his placement of the clamps did not cause injury.

However, even assuming Dr. Smith did not cause the injuries, he had an obligation and duty to inspect the area of the bifurcation of the abdominal aorta during the initial surgery to discover and immediately repair any and all additional sources of injury or bleeding. Dr. Smith’s failure to discover and repair one of both of these injuries was below the standard of care and was a substantial factor in causing plaintiff’s injury.

Although he seeks to blame Dr. Green, Dr. Smith was below that standard of care by not finding the bowel injury. Even his own expert admits this was a joint responsibility
DR. LEE
On June 24th, plaintiff was believed to have suffered a gastrointestinal bleed. On that day, Dr. Lee placed an arterial and femoral line in plaintiff’s groin to measure his blood pressure and rapidly infuse blood.

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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 medical malpractice/personal injury case and its proceedings.)

CACI 430 IS AN INCOMPLETE STATEMENT OF THE LAW REGARDING THE STANDARD OF PROOF FOR CAUSATION IN A MEDICAL NEGLIGENCE ACTION

CACI 430 defines causation as more than a remote or trivial fact. This, however, is not the correct definition of causation in a medical malpractice action. Pursuant to case law, causation in a medical malpractice action, must be shown to a reasonable medical probability. Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208. Further, the evidence must be sufficient to allow a jury to infer that in the absence of the defendant’s negligence there was a reasonable medical probability that the plaintiff would have obtained a better result. Id. at 216.

Accordingly, based upon the above argument regarding causation, CACI 430, which defines substantial factor only as a factor that a reasonable person would consider to have contributed to the harm or more than a remote or trivial fact fails to address the necessary reasonable medical probability, and as such, is inherently misleading, incomplete, and a misstatement of the applicable law on causation for this matter.

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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.)

Universal Mall argues that its summary judgment motion should be granted because Plaintiff cannot prove that it owed a duty of care toward her, because the sidewalk defect which caused her to trip and fall was “trivial in nature.” In support of that assertion, it contends that a one-half inch rise in the sidewalk is a trivial defect; and that as such, it did not owe a duty to the Plaintiff to either cure the defect or warn her of its existence.

One of the problems associated with Defendant’s argument is its description of the defective condition of the sidewalk. It argues that the defect was solely a one-half inch difference between the heights of the pavers (sections) of the sidewalk. That is not true. The defects consisted of a 1″ rise in height, and an approximate 1″ gap” between the pavers on the sidewalk (Supported by the Declarations of Judy Brown, Paragraphs 5-6 and Kenneth Brown, Paragraph 8; see also the photo exhibits which show the rise in height and the gap, attached as Exhibits 1 and 2 to Declarations of Judy Brown and Kenneth Brown).

Defendant Universal Mall argues that a one half inch rise in the paver on the sidewalk is so trivial that reasonable minds would not differ as to this being only a trivial defect. As explained above, the defects were a 1″ gap and a 1″ rise in height of the sidewalk paver. Defendant omits any reference to the gap in the pavers, choosing, rather, to describe the defect as only an upraised portion of sidewalk. Further, and importantly, whether the defects were trivial or substantial in nature in one which a jury can decide in this case. As held in Johnson v. City of Palo Alto (1962) 199 Cal.App2d 148, 152, 18 Cal Rptr, 484, it is up to a jury to decide whether or not the condition of a sidewalk is dangerous or defective, or merely trivial.

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