Personal Injury Lawyer Blog

Elder Abuse Claim Filed Against Roseville Nursing Facility, Part 3 of 6

August 13, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

DEFENDANT UNIVERSAL HOMES’ INSTANT MOTION

Defendant UNIVERSAL HOMES moves for summary judgment on the grounds the negligence that caused Ms. Smith to be hospitalized was not a legal cause her death due to negligence in that hospital.

In response, plaintiff contends that moving defendant’s negligence was a legal cause of the death of Ms. Smith because her brain injury and subsequent death was caused by the negligence of health care providers she went to see as a result of the defendants negligence. At a minimum, there is a triable issue of fact.

THE STANDARD OF REVIEW

The court’s role here is whether or not there is, or could be, a triable issue on any material fact. Code Civ. Proc. Section 437. A defendant who seeks summary judgment must define all theories alleged in the complaint and then challenge each factually, showing that one or more elements of each of plaintiff’s causes of action for negligence cannot be established or that there is a complete defense to that cause of action. CCP section 437c (p)(2); Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714.

Summary Judgment is a drastic procedure and should be used with caution. Any doubt as to the propriety of granting the motion is resolved in favor of the party opposing the motion. Stationer’s Corp v. Dun & Bradstreet Inc. (1965) 62 Cal.2d 412,

Sacramento Woman Sues For Sexual Harassment, Part 1 of 7

August 13, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Plaintiff Gina Smith’s Opposition to Defendants’ Demurrer to Complaint. This Opposition is based on the accompanying Memorandum of Points and Authorities, the pleadings and records on file herein and upon such other documentary and oral evidence as may be presented at the hearing.

MEMORANDUM OF POINTS & AUTHORITIES
INTRODUCTION

Plaintiff Gina Smith ( Plaintiff ) was employed by Defendants as a Sales Associate at a Sacramento company. Plaintiff worked for Defendants from August 2005 to March 2007. While working for Defendants, Defendants subjected Plaintiff to a hostile work environment based on sex. Defendant Mr. Jones regularly made unwelcome, inappropriate comments and or/suggestive non-verbal signals to Plaintiff. Examples of this include but are not limited to the following:

a. telling PLAINTIFF that she was hired because she was good looking;
b. telling PLAINTIFF to go outside the store and bend over in order to attract more customers;
c. threatening to spank PLAINTIFF;
d. telling PLAINTIFF that he refused to hire male employees;
e. constantly cursing at PLAINTIFF;
f. constantly staring at PLAINTIFF’S breasts;
g. telling PLAINTIFF that her boobs are nice and firm ;
h. asking PLAINTIFF to show more cleavage at work by lowering her shirts;
I. asking PLAINTIFF how her breasts looked;
j. commenting on how nice PLAINTIFF’S manicures and pedicures were;
k. hugging and kissing PLAINTIFF;
l. constantly rubbing PLAINTIFF’S shoulders.

Woman’s Future Earnings Limited Due To Sacramento Auto Accident, Part 5 of 5

August 13, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

Starting with what plaintiff would have earned if not injured in the automobile collision and subtracting what she is able to earn now that she is partially disabled, the future lost income submitted to the jury was $347,352.00.

It was also established that because of plaintiff’s partial disability, her ability to contribute household services was diminished by 8 hours a week. Projecting forward to age 65, Mr. Stevens testified that the economic value for the loss of those services was $220,064.00.

It is noteworthy that although defendant complains that the award of economic damages was excessive, her motion for a new trial is conspicuous by its failure to assert that plaintiff’s expert analysis of economic loss was incorrect, no less any suggestion as to why that might be so. Simply because Dr. W. could find no medical reason why plaintiff was unable to work for the amount of time she claimed is no reason to set aside the jury’s conclusion that plaintiff’s witness had established such a medical reason for a past wage loss and future economic losses.

The Court Should Not Remit the Award of Damages
Clearly, the defendant is not happy with the jury’s verdict and award of damages. A party’s disappointment with the trial result is no reason for a court to issue a remittitur. Defendant makes no claim that the jury was improperly instructed, that evidence was improperly admitted, or that the jurors engaged in misconduct. Rather, defendant asserts because that a properly instructed jury that heard properly admitted evidence and, upon due deliberation, awarded substantial damages, the court should remit the award because defendant presented evidence at odds with the jury’s resolution of this case. The contention is lacks merit and should be rejected. The motion for new trial should be denied.

Sacramento OB/GYN Sued For Birth Injury, Part 7 of 12

August 13, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

Universal Presents No Evidence Whatsoever as to Elam Liability

Universal’s motion asserts that plaintiff has no evidence to support its liability under Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 183 Cal.Rptr. 156, under which a hospital may be held responsible for the negligent conduct of independent physicians who, based on their staff privileges, avail themselves of the hospital’s facilities. Universal presents no evidence that it did anything to assure the competence of physicians practicing there, and thus offers nothing to disprove its liability under the Elam theory. It does not even raise the matter in its Separate Statement.

Elam recognizes, first, that case precedent establishes a hospital has a duty of reasonable care to protect patients from harm .., including the discovery and treatment of their medical conditions. Secondly, Elam holds that as a general principle, a hospital’s failure to insure the competence of its medical staff through careful selection and review creates an unreasonable risk of harm to its patients. (Id. at 340) Reviewing the controlling statutes and regulations, the Court noted that:

Regarding staff selection, although the medical staff is to be self-governing, a hospital must provide procedures for selection and reappointment of the medical staff in accordance with JCAH standards, implying investigation of competency for initial appointment and periodic review of competency before reappointment. The hospital’s duty to guard against physician’s incompetency is further implied by requiring renewal of staff privileges at least every two years (implying a periodic competency review) and the periodic review of the medical records of hospital patients. Although these reviews are conducted by medical staff peer committees, the governing body of the hospital is responsible for establishing the review procedures. Finally, [Health and Safety Code] §32128 provides that the hospital rules shall include [s]uch limitations with respect to the practice of medicine and surgery in the hospital as the board of directors may find to be in the best interests of the public health and welfare… [Id. at 342]
In summary, we hold a hospital is accountable for negligently screening the competency of its medical staff to insure the adequacy of medical care rendered to patients at its facility. (Id. at 346)

Infection At Sacramento Hospital Leaves Child Severely Injured, Part 4 of 4

August 12, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

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 a personal injury case present such issues to the court.

Defendant’s Opposition Motion cont.

b. The Allegations Do No Support a Claim for Negligent Infliction of Emotional Distress (NIED)Based on a Bystander Witness Theory.

The third case relied on by Cindy Jones is Ochoa v. Superior Court, supra, 39 Cal.3d 159. Ochoa is a bystander witness case. Plaintiffs were the surviving parents of Rudy Ochoa, who as an inmate in the Santa Clara County juvenile hall. His parents visited him and found him extremely ill. The mother spoke with authorities, expressing concern that her son was not receiving necessary treatment. His mother was at his bedside and made repeated requests that her son receive medical treatment, including requesting that she be allowed to take him to a private physician. She remained at her son’s bedside. The son died. The Supreme Court held that the mother could assert a cause of action for NIED as a bystander witness because she had personally witnessed the failure of the medical personnel at the juvenile hall to provide medical care to her son. The court further held that the father could not assert the claim because he had not witnessed the lack of care but had only been told of the situation by his wife.

To recover for NIED as a bystander witness, a plaintiff must be present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim. (Thing v. LaChusa, supra, 48 Cal.3d at pp. 667-668.) In Bird v. Saenz, supra, 28 Cal.4th at pp. 920-921, the Supreme Court reiterated the Thing requirement that the plaintiff be present at the scene of the injury-producing event at the time it occurs, and contemporaneously be aware that it was causing injury to the victim. In Bird, the plaintiffs were in the waiting room while their mother was negligently operated on, with the result the Bird plaintiffs had no sensory perception whatsoever of the [injury-producing event] at the time it occurred. (28 Cal.4th at p. 917.)

Beating Victim In Sacramento Files Claim Against Sacramento Police Dept., Part 6 of 9

August 12, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)

A. CONVENIENCE OF WITNESSES

As mentioned, plaintiff intends to call one of the neurosurgeons who treated him at Sacramento Medical Center and another who treated him at Mercy. Both of these surgeons performed operations on Mr. Santoro at different times and for different reasons. Both will testify about the extent and severity of the head injury Mr. Santoro sustained, as well as the fact that an extreme amount of force was required to cause this level of injury.

This evidence is a critical piece of plaintiff’s proof in the liability phase. One of plaintiffs causes of action is for battery by Officer Doe. The crux of this claim is whether the force used by the officer was unreasonable or excessive under the circumstances. See, e.g., CACI Instruction No. 1305; Edson v. City of Aneheim, 63 Cal.App.4th 1269, 1272 [in action for battery against a police officer, plaintiff has burden of proving unreasonable force by the officer].

The nature and extent of the injury, as well as testimony about the amount of force that would be necessary to cause such an injury, is relevant and admissible on this issue.

Of course, both of these doctors will have additional testimony on the issue of damages. Bifurcation would therefore require that both testify twice, which would be highly inconvenient and unnecessarily expensive.

Sacramento Auto Accident Victim Sues For Medical Malpractice, Part 1 of 2

August 12, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

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 a personal injury case present such issues to the court.

Motion in Limine to Preclude Evidence of Traffic Collision Report

Defendants, X, Y, Z Medical Center and Edward W., M.D., hereby move for an in limine order precluding evidence of the traffic collision report prepared in regard to the Sacramento traffic accident giving rise to this accident. This motion is based on the grounds that the traffic collision report is not admissible as evidence pursuant to Vehicle Code section 20013, and on the grounds that the witness statements contained therein are inadmissible hearsay. It is also based on Evidence Code section 352.

The defendants request that the plaintiff be precluded from introducing the traffic collision report into evidence and that her counsel be precluded from exhibiting the report to the jury during the trial. The defendants also request that the plaintiff’s witnesses, including experts, be precluded from referencing the report and the contents thereof in their testimony and from basing any opinion on the contents of the report.

MEMORANDUM OF POINTS AND AUTHORITIES
I.
THE TRAFFIC COLLISION REPORT IS INADMISSIBLE

This medical malpractice action arises out of an auto versus pedestrian accident that occurred on July 2, 2006. Following the accident, a law enforcement officer investigated, and a traffic collision report was prepared.

That report is inadmissible, pursuant to Vehicle Code section 20013, which provides, No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident… In Box v. California Date Growers Ass’n (1976) 57 Cal. App.3d 266, the appellate court held that the trial court properly refused to admit into evidence either the police accident report or the diagram portion thereof.

Defendant In Sacramento Motor Vehicle Collision Challenges Jury Award For Victim, Part 4 of 5

August 11, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

The Award of Damages was Not Excessive

Plaintiff’s medical bills totaled $24,194.89. In her motion for a new trial, defendant does not contend those expenses were unreasonably incurred.

Although Dr. W. testified that, in his opinion, there was no reason why plaintiff was unable to work for the time she claimed to have been off work as a result of this accident, plaintiff presented extensive and essentially uncontroverted expert testimony that both explained and justified her absence from work and her future economic and non-economic damages.

Dr. Y., who had evaluated the plaintiff a week prior to the trial, concluded that plaintiff’s condition had deteriorated since her last therapy treatment, that she needed therapy to strengthen her muscle and tissues around her neck, and that she would require careful monitoring and therapy for the remainder of her life. More specifically, she testified that it was reasonably certain that, during the next 3 to 6 months, plaintiff would require three to four osteopathic treatments a month at a cost of $1,920.

Dr. Y. projected that for the following 3 months, plaintiff would require two treatments per month at a monthly cost of $960.00 for a total of $2,880.00. She would also need physical therapy four times per month for 1.5 months, at $120.00 per visit, and then two times per month for a total cost of $3,960.00.

Medical Malpractice Claim By Sacramento Family For Birth Injuries, Part 6 of 12

August 11, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

UNIVERSAL FAILS TO CARRY ITS INITIAL BURDEN ON SUMMARY JUDGMENT

On motion for summary judgment, defendant has the burden of producing evidence negating a necessary element of the plaintiff’s case or establishing an affirmative defense. To succeed, a defendant moving for summary judgment must conclusively negate a necessary element of the plaintiffs case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial. Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1190, 260 Cal.Rptr. 49; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 10 Cal.Rptr.2d 748. Defendant must establish that there is no triable issue of fact with respect to any basis for liability under the complaint. United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 338, 282 Cal.Rptr. 368. The defendant has the burden of establishing that there was no room for a reasonable difference of opinion … Rosh v. Cave Imaging Systems. Inc. (1994) 26 Cal.App.4th 1225, 1235, 32 Cal.Rptr.2d 136.

Where the Complaint alleges matters upon which a breach of duty may be based, failure of the moving party to address each factual theory supportable under the Complaint precludes summary judgment. Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 715-716, 52 Cal.Rptr.2d 821; Villa v. McFerren (1995) 35 Cal.App.4th 733, 741-746, 41 Cal.Rptr.2d 719. Where matters on which liability may be based are not conclusively disposed of by the moving papers, the motion must be denied even without opposition. Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830, 20 Cal.Rptr.2d 296.

Plaintiff’s Medical Experts Confirm Sacramento Accident Victim’s Injuries, Part 3 of 5

August 9, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

There Was Ample Evidence that Plaintiff was Seriously Injured in the Accident

Plaintiff presented as a woman who had no problems with her neck prior to being struck from behind by defendant. Both treating physicians, Dr. X. and Dr. Y. testified that the accident caused the injury to plaintiff’s neck, a disc bulge in her C5 region. Dr. Z., a board certified neurologist, testified that plaintiff’s injury was consistent with having been caused by a rear end accident. Not surprisingly, the defense produced an expert, Dr. W., who disputed those findings. Like a murder defendant who tells the jury that he didn’t do it but if he did, it was in self-defense,

Dr. W. opined that plaintiff was not hurt in the accident, but if she was, it was minor. His credibility was quickly undermined, however, when he initially testified that plaintiff’s post-accident ability to swim and snorkel at the time of the IME was evidence that she was not injured and then was later forced to concede that she had really quit swimming (although recommended by her treating doctor) a year earlier prior to the IME because of a severe allergic reaction to plaintiff’s eye from the chlorine in the pool.

The jury heard both plaintiff’s treating physicians and board certified neurologist testify and they heard Dr. W.’s testimony and found plaintiff’s witnesses to be more persuasive. In her motion, defendant presents no reasoned analysis of any deficiencies in the testimony of plaintiff’s witnesses.