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The following blog entry is written from a defendant’s position during the early stages of litigation. 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 sexual harassment/personal injury case and its proceedings.)

LEGAL ARGUMENT
THIS COURT HAS THE AUTHORITY TO COMPEL DEFENDANT TO APPEAR FOR HIS DEPOSITION
California Code of Civil Procedure (hereinafter C.C.P. ) § 2025(j)(3) provides, in relevant part

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party … without having filed a valid objection under subdivision (g), fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice. Id.

Moreover, the Code defines the “misuse” of the discovery process as a failure to respond or to submit to an authorized method of discovery. (C.C.P. § 2023(a)(4)). In the instant action, Ms. Brown properly noticed Defendant’s deposition and Defendant has flatly refused to comply with the deposition notice. To make matters worse, Defendant has refused to provide dates on which he could appear at his deposition in this egregious sexual harassment case. Accordingly, this Court has the power to compel Defendant to attend his deposition forthwith. (See Part 5 of 6.)

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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.)

Based on the above conduct, in Dr. Brown’s opinion, Dr. Black committed elder abuse, and testifies as follows:

Q: Okay. Other than the failure to adequatley monitor, as you’ve characterized it, the scrotal condition, are you critical of Dr. Black for any other aspect of his care of this patient that you believe fell below the standard of care?

A: Well, in Dr. Black’s case, to be honest with you, I don’t feel that he just fell below the standard of care. I know there are legal terms for elder abuse. I’m aware of what those terms are, in terms of a conscious, you know, disregard for the patient, his care and safety. And, honestly, I really think that this does fall under that category.

And I don’t say that lightly; I’m a doctor myself. But the thing that troubles me is that Dr. Black, unlike Dr. Green – Dr. Black actually did look at the man’s scrotum and was aware that there was a problem there, and yet he sat on that problem for several days, and then sat on it for an additional five days, even after requesting urology consultation.

So, to me, it showed a – just an extreme deviation from the standard of care that would fall into the elder abuse category, if you’re going to use a legal term for it.

That’s my – – what claims are being made and not made, I’ll leave that to you folks. But I know there are issues of elder abuse here, and what I had told Mr. Moran was that if there was a case where elder abuse would be applicable, it would certainly be with Dr. Black’s care in this case.

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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.)

The Pleadings.

The Judicial Council complaint states that Tina Steinford and the Estate of Paul Steinford complain that eleven doctors and two institutions negligently caused the death of Paul Steinford and committed elderabuse. Since the filing of the complaint Universal Hospital and Camino Towers have been dismissed from the case, along with doctors Washington, Greene, and Black.

The thrust of the negligence claim is that Mr. Steinford was negligently prescribed anti-psychotic medications without his consent.

The Plaintiffs explain why the complaint was filed July 31, 2007, more than one year following the death of Mr. Steinford on May 5, 2005. It is important for the court to appreciate that the black box warning on Risperidone (Risperdal) refers to the dangers of strokes in elderly people. Mr. Steinford did not die from a stroke. So it is evident that Ms. Steinford was guessing and grasping at straws until she found present counsel and a qualified phsician to review the records and advance the theories announced.

The Legal Argument.

a. A Demurrer Examines the Pleading to Determine Its Legal Sufficiency.

On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

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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/car accident case and its proceedings.)

Pictures in various forms (e.g., engineering drawings, artist’s renderings, computer-generated displays, photographs) are commonly used in court. Photography is one of the most commonly used forms of visual presentation in court, because they assist the trier of fact in understanding injuries, the vehicles, the scene, when offered for that purpose. Jurors tend to believe that what they see in a photograph is what they would have seen had they been there themselves at the time the photograph was taken. And here, photographs and other depictions are central to issues in this auto accident case.

This belief is reinforced by their own experience, since most of them have probably taken photographs at one time or another. Unfortunately, most jurors have little knowledge about photography, hence little understanding of the possible problems and limitations.

Many experts now try to offer into evidence nighttime photographs, videos, and even computer-generated displays purporting to show the visibility available to an individual in a particular situation. Relative to verbal explanations of the results of a reenactment, these displays are regarded as a great improvement, but they present a number of problems that are seldom dealt with or even acknowledged by the individuals seeking to introduce this evidence.

Generally, daytime photographs will serve their purpose if they are sufficiently clear and are not distorted with the use of special lenses, filters, and arguments over such photographs are often not sufficient to keep them fairly out of evidence.

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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/car accident case and its proceedings.)

DEFENSE COUNSEL’S MISCONDUCT. [C.C.P. SECTION 657 SUBD. 1. AND 7].

Evidence and Argument of the Lyon Settlement.

Before trial separate statements of the facts to be read to the jury were submitted by the parties. Defendant’s statement included that Mr. Lyon was a party, but he had settled. Plaintiff strenuously objected on the grounds of Evidence Code sections 352 and 1152 to there being any reference to that settlement. Alternatively, plaintiff proposed that if there was to be such a reference allegedly to explain Mr. Lyon’s current absence as a defendant, then equity demanded that the same explanation “of settlement,” be given as to Mrs. Black’s absence as a plaintiff against defendant White.

The court, over plaintiff’s objection, read to the jury the defense statement of the case, but refused to allow the jury to be told that Mrs. White had settled with Mrs. Black. During the entire course of the trial, from opening statement through questioning and into argument, defense counsel referenced the Lyon settlement, emphasizing to the jury that the party who was at fault, Mr. Lyon, had settled.

The implication clearly was that Mr. Lyon’s settlement was an admission of fault in the auto accident and demonstrated Mrs. White was not liable. Such statements further caused the jury to reason plaintiff had at least been partially compensated.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

PLEASE TAKE NOTICE that defendant Universal Memorial Hospital of (hereinafter “UMH” ) will, and hereby does, move this court for an order that no substantial controversy or triable issue of material fact exists as to said defendant, and for entry of judgment in favor of said defendant and against plaintiffs.

This motion is made pursuant to Code of Civil Procedure section 437c of the on the ground that no triable issue of material fact exists as to UMH, in that said defendant breached no duty of care to plaintiff.

The motion will be based on this notice, the separate statement of undisputed facts filed concurrently herewith, the accompanying memorandum of points and authorities, the declaration of Sandy Singer, RN, Mary Black, Daniella Jones, the exhibits , and all pleadings, papers and other documents on file with this Court and, on such other evidence, oral or documentary, as may be presented at the hearing of this motion.

MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF THE CASE
This is a medical malpractice/wrongful death action arising out of allegations that plaintiffs’ decedents were negligently examined, diagnosed and/or treated while they were patients of Universal Memorial Hospital. Ms. White was pregnant with twins when she was admitted to Universal Memorial Hospital at 23 weeks, two days gestation for tocolysis due to premature labor.

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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.)

OPPOSITION TO DEMURRER

The plaintiffs oppose the demurrer brought by defendant doctors White, Black, Greene, Brown, Smith, and James, because the plaintiffs have set out a reason why the statute of limitations was extended beyond one year and for the time it took to file the action and that the elements of a claim for elder abuse are stated. Moreover, if the court finds any deficiencies with the complaint, the plaintiffs seek leave to amend consistent with the statements made about their claims.

MEMORANDUM OF LAW

Overview of the Case.

This case is about the poisoning of Paul Steinford by means of multiple psycho tropic drugs that should never have been used but certainly should have been stopped when the symptoms started that lead to his death. Many of those symptoms are disclosed by the drug companies as side effects of the psycho tropic drugs. All of the treating doctors should have known that the drugs had those known side effects that included symptoms that Mr. Steinford exhibited to them including difficulty swallowing and toxicity. Dr. Washington arrived on April 26, 2005, just before Mr. Steinford’s untimely death, and removed him from the psycho tropic drugs, regrettably too late to reverse the effects of those drugs and save his life.

Dr. Washington is dismissed from this lawsuit and deeply thanked for his correct actions obviously reflecting knowledge and caring. We apologize for including him. The fact of his removing Mr. Steinford from the harmful drugs was just discovered. All doctors arriving on or after April 26, 2005 have been dismissed.

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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.)

MOTION FOR LEAVE TO AMEND TO CONFORM TO PROOF MAY BE MADE AT ANY TIME DURING TRIAL.

A motion for leave to amend to conform to proof may be made at any time during trial, so long as a judgment has not yet been entered. Union Bank v. Wendland (1976) 54 Cal.App.3d 393, 400-401.

The statutes authorizing amendment of pleadings are construed liberally so that cases might be tried upon their merits in one trial where no prejudice to the opposing party or parties is demonstrated. Rainer v. Community Mem. Hosp. (1971) 18 Cal.App.3d 240, 254. There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding. Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945. This liberal policy applies even to amendments requested during trial. However, the matter rests in the trial court’s sound discretion and is subject to appellate review only for abuse of discretion. Consilidated World Investments, Inc. v. Lido Preferred, Ltd. (1992) 9 Cal.App.4th 373, 383.

Dr. Brown testified in his deposition that Dr. Black failed to adequately monitor Mr. Hernandez during his admission at East Los Angeles Doctor’s Hospital, which led to delayed definitive treatment of Mr. Hernandez’s scrotal cellulitis, which ultimately became an abscess. He further testifies that Dr. Black was aware of Mr. Hernandez’s scrotum, but didn’t monitor it properly and waited for a very long period of time before requesting a urology consultation. Mr. Hernandez was admitted into East Los Angeles Doctor’s Hospital on January 3, 2006, but Dr. Black did not request a urology consultation until January 13, 2006.

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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 birth injury/personal injury case and its proceedings.)

In the instant matter, plaintiffs are entitled to an order compelling University to further respond to plaintiffs’ Special Interrogatories, Numbers One through Seven.

First, repeated attempts to meet and confer and to obtain the information from defendants have been unsuccessful. Plaintiffs received University’s written responses to their first set of special interrogatories on May 16, 2002, after granting four extensions. Thereafter, in an attempt to meet and confer over the inadequacy of the responses, plaintiffs sent a letter to University outlining the alleged deficiencies in responses to Special Interrogatories, One through Seven.

Thereafter, although defendant agreed to provide further responses to the specified interrogatories, no response has been received as of the date of this motion. Moreover, most recent additional meet and confer attempts by counsel for plaintiffs have been met with silence. Because, as discussed in detail below, University has not provided further responses to plaintiffs’ interrogatories after agreeing to do so, plaintiffs are entitled to an order compelling defendant University to provide further responses.

More importantly, the information being requested from University is directly relevant to the issue of negligence in this birth injury case.

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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/car accident case and its proceedings.)

Here, Defendant has failed to establish by any means how the “sub rosa” videotape contradicts or somehow discredits the testimony of any of Plaintiffs experts based on any legal criteria. Defendants have not explained if or how these experts failed to rely on personal observation, personal knowledge, or an assumption of facts finding support in the evidence. As is obvious, the “sub rosa” video was not the only evidence available to the jury, nor can an assumption be made that Plaintiffs experts opinions would have been altered in any way based on a video depicting activities Ms. Lee’s own family testified. that she on occasion was able to participated in and/or perform.

Further, Defendant’s reliance on two family law cases, related to asset value disputes is markedly distinguishable from a civil matter wherein medical experts base their opinions on examination of a Plaintiff and provide an opinion based on their background, expertise and experience, as was the case here. Further, Defendants have relied on court opinions regarding expert valuations of tangible assets, which is markedly divergent from the valuation of a person’s future needs of a medical nature, as explained.

The Evidence Presented in the Trial Constitutes Significant Evidence
During the course of this trial, there was significant evidence with regard to the brain injury, and other physical injuries, suffered by Ella Lee. Every medical expert, Plaintiff or Defense, agreed that she did indeed suffer a brain injury. Further, the testimony of Plaintiffs experts and Defendant’s experts as to the extent of Ms. Lee’s injuries was not identical, but that is surely to be expected. The mere fact that there was contradicting expert opinion evidence does not diminish the solid value of the evidence presented.

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