Personal Injury Lawyer Blog

Carmichael Hospital Patient Files Medical Malpractice Claim, Part 5 of 5.

May 10, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

G. Home Remodel or Replacement Costs

One important item which Dr. Barchuk recommended, but Ms. Albee was unable to price, was the cost of either updating the Bates’ home to accommodate her disabilities or selling the current home and buying a home that is ADA compliant in bathrooms, hallways, kitchen, bedrooms, and entries and exits. For purposes of this letter, I will estimate the cost of either choice to be $135,500.

H. Loss of Consortium: Andy Bates

Andy Bates is entitled to his own claim for general damages for loss of consortium. He is not limited by his wife’s MICRA cap of $250,000 (see Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1394-1396). Under MICRA he has a separate MICRA cap of $250,000. Under EADACPA he has no cap. For purposes of this letter, his claim for loss of consortium under either cause of action will be $250,000.

III. SUMMARY OF DAMAGES

Claimants have the following damage claims pursuant to their First and Second Causes of Action:

1. Cost of Life Care Plan $12,123,769.64
2. Andy Bates’ Loss of Income $ 228,080.00
3. MICRA General Damages $ 250,000.00
4. EADACPA General Damages $ 625,000.00
5. EADACPA Attorney Fees and Costs $ 312,000.00
6. Home Remodel or Replace $ 135,500.00
7. Andy Bates’ Loss of Consortium $ 250,000.00
TOTAL $13,924,349.64

Sacramento Child Born Brain Damaged Due To Hospital Negligence, Part 5 of 8

May 10, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Likewise, the Plaintiff here saw the injury in process, the excessive bleeding and described it in detail in the Complaint. The father saw an ongoing event – which was a continuing injury – the lack of oxygen. No, the father does not have to have x-ray vision – or be a medical expert – to know there is an injury to the body. As in an automobile accident – the bystanding relative does not have to know the driver is intoxicated to know a car is causing injury.

Here, whenever the injury to the child began, the father has properly shown he directly saw the continuing injury. It is irrelevant whether or not the Plaintiffs saw the initial physiology. Here, the father saw the injury as it was occurring in an ongoing event.

In Wilks V. Hom (1992) 2 Cal.App.4th 1264 (approved by the Supreme Court in Bird v. Saenz (2002) 28 Cal.4th 910), a mother who was in one room of her house when an explosion in another room severely burned her daughter could recover on a bystander theory even though the mother did not actually see her daughter at the exact moment of the explosion. Wilks discussed what Thing did not require – that the plaintiff witness the injury at the exact moment it occurred:
Notable is the omission of a requirement that the plaintiff actually witness the injury to Jessica as and when it occurred. … Following Krouse, we conclude it is not necessary that a plaintiff bystander actually have witnessed the infliction of injury to her child, provided that the plaintiff was at the scene of the accident and was sensorially aware, in some important way, of the accident and the necessarily inflicted injury to her child. (Emphasis added.) (Wilks, supra, 2 Cal.App.4th at p. 1271.)

Sexual Harassment By West Sacramento Employer, Part 3 of 18

May 9, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

ADMINISTRATIVE EXHAUSTION/RIGHT TO SUE LETTER (WHITE)
16. On or about April 15, 2007, the California Department of Fair Employment and Housing (hereinafter “DFEH”) notified Mendoza of Plaintiff’s right to initiate legal proceedings on said charge of harassment, discrimination and retaliation on account of Plaintiffs sex, race, national origin and association.17. Plaintiff was employed by Defendant UCC from January 2006 until June 2006 at which time Plaintiffs employment was terminated by Defendant Paul Smith.

18. At all times herein mentioned, the acts and/or words constituting the discrimination, harassment and/or retaliation alleged herein occurred within one year prior to the filing of Plaintiffs administrative accusation and charges with the Department of Fair Employment and Housing.

ADMINISTRATIVE EXHAUSTION/RIGHT TO SUE LETTER (GREEN)
19. On or about April 15, 2007, the California Department of Fair Employment and Housing (hereinafter “DFEH”) notified Mendoza of Plaintiff’s right to initiate legal proceedings on said charge of harassment, discrimination and retaliation on account of Plaintiffs sex, race, national origin and association.
20. Plaintiff was employed by Defendant UCC from October, 2003 until August 15, 2006 at which time Plaintiff was forced to quit and/or constructively discharged.

Patient Suffers Paralysis At Citrus Heights Hospital, Part 4 of 5

May 8, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

C. Andy Bates: Loss of Income

Andy Bates is married to Susan Bates. He is currently employed as a shift leader at Denny’s Restaurant in Roseville. He works 35-40 hours per week earning $9.00 per hour. His average salary is, therefore, $333.00 per week, or $1,398.60 per month, or $16,783.20 per year.

In 2003, the Sacramento Superior Court appointed Andy and Susan as permanent legal guardians of two boys born to Susan’s brother, who were not getting proper parental care. The children were James (age 4 at the time) and Sean (age 9 months at the time). Shortly thereafter, Susan’s nephew also relinquished his parental rights to his daughter, Carli (age 5 at the time) and she was also placed with Susan and Andy. As a result, since 2003, all three children have been taken into Susan’s and Andy’s home and raised as their own children, with Andy serving as father and Susan as mother.

Prior to her paralysis Susan actively participated in caring for her family. She had an early morning job so she was off in the afternoon. She shopped for her family and cooked dinner. She cleaned the home and did the laundry and cared for the three children when they came home from school (Andy worked in the evenings) and put them to bed. She also shared the yard work.

Susan’s paralysis and care needs have placed a severe strain on the family. As a result, she has been unable to care for James, Sean and Carli. She has been unable to cook and clean as she did before.

Set forth in item B, above, are funds to hire an attendant to take care of Susan’s needs. This attendant is not, however, expected to care for the three children or perform household chores for the family.

Folsom Driver Injured in Automobile Crash, Part 4 of 14

May 8, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

“Q. You had the right to direct Nancy Smythe in her work at ABC. True? A. Yes.”
2. An additional criteria creating an employer-employee relationship is the right to fire at will. Smythe did what she was told by her immediate superior, Chan, because Smythe believed she could be fired otherwise. [Smythe deposition, at 28:3-29:7; 31:2-14. Chan deposition, at 46:14-47:4, set forth below.]
“Q. You had the right to fire Ms. Smythe, if you chose to?
A. Yes.
Q. If he – if you found someone else who you thought could do a better job, you could have fired her and hired another person?
A. Correct.
Q. If she didn’t meet expectations, you could fire her?
A. Correct.
Q. If you decided to take the company in a different direction, you could fire her?
A. Correct.
Q. You could fire her whenever you felt like she wasn’t helpful?
A. Correct.”
3. In keeping with her status as an employee as of July 2006, according to CEO Chan, Smythe was “Acting President” of ABC. [Chan depo, at 25:19-26:13.] Smythe had the responsibilities of the President of ABC. [Smythe depo, at 108:11-20.] Chan introduced Smythe as President and Chief Operation Officer. [Chan depo, at 100:25-101:7.]

Workplace Harassment Suit Filed By Sacramento-area Hispanics, Part 2 of 18

May 7, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

PARTIES
7. At all times herein mentioned, Defendant UNIVERSAL CLOTHING COMPANY, LLC. (hereinafter “UCC”) and Does 1 to 100, inclusive, was a corporation, sole proprietorship, partnership, limited partnership, and/or limited liability corporation, duly organized and existing under and by virtue of the laws of the State of California and doing business in the County of Sacramento, State of California, with its current principal place of business located at 1234 Main Street, West Sacramento, California and is an employer as defined in Government Code § 12926 (c).8. At all times mentioned, Defendant PAUL SMITH (hereinafter “Paul Smith”), is and has been a resident of the County of Sacramento, and was a manager, managing agent, supervisor, employee, officer, director, owner and/or partner of Defendant UCC.
9. At all times mentioned, Defendant DAVID SMITH (hereinafter “David Smith”), is and has been a resident of the county of Sacramento, and was a manager, managing agent, supervisor, employee, officer, director, owner and/or partner of Defendant UCC.
10. At all times mentioned, Plaintiff ROSA BROWN (hereinafter “Brown”), is and has been a resident of the County of Sacramento, State of California.
11. At all times mentioned, Plaintiff MANUEL WHITE (hereinafter “White”), is and has been a resident of the County of Los Angeles, state of California.

Medical Malpractice In Sacramento Hospital Results In Permanent Birth Injury, Part 6 of 8

May 7, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

The motion cites Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, which holds that a parent cannot claim emotional distress for viewing the damage caused after a injury caused by radiation therapy. They did not, and could not, observe the radiation overdose; [Petitioners] were, however, present and witnessed the results of the negligent over radiation, when after an unspecified period of time the symptoms of radiation poisoning became visible. (Golstein, supra, 223 Cal.App.3d at p. 1418.) Consequently, the plaintiffs in Golstein viewed the manifestations of the injury after it occurred. In contrast here, the father viewed the injury while it was occurring – the child’s appearance of being lifeless. Golstein is inapplicable, Plaintiff here directly saw the injury in progress.

The motion cites Jansen v. Children’s Hospital Medical (1973) 31 Cal.App.3d 22 for the proposition that a parent cannot claim NIED for learning of the medical injury after the death of the child. She [the mother in Jansen] later learned that her child’s death was due to the failure to diagnose a penetrating duodenal ulcer. (Emphasis added.) (Ochoa, supra, 39 Cal.3d at p. 167.) In contrast here, the father directly saw the injury in progress. The father did not learn of the injury after the event – he directly saw the events.

Further, the Supreme Court in Ochoa disapproved the portion of Jansen which required a sudden, brief occurrence viewed contemporaneously by the plaintiff (Ochoa, supra,30 Cal.3d at p. 168). In other words, defendants were erroneously asserting a plaintiff had to view the exact moment of a sudden brief occurrence of injury. Our review … leads us to the conclusion that the sudden occurrence requirement is an unwarranted restriction on the Dillon guidelines.

Sacramento-area Woman Suffers Spinal Cord Injury In Hospital, Part 3 of 5

May 6, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

The patient will continue to require urological supplies, skin supplies, as well as bowel supplies which are delineated in the Life Care Plan.

The patient continues to require 24/7 attendant care. Her skilled needs are as follows:

1. Catheter changes
2. Wound care
3. Blood draws
4. IV antibiotic administration
5. PICC line maintenance and flushing

It is not anticipated, in view of the patient’s multiple medical problems, that she would be able to tolerate any sort of competitive employment in the future.

The patient is in need of an ADA compliant home supplied with air conditioning secondary to heat intolerance from his spinal cord injury.

The details of the above mentioned recommendations are included in the Life Care Plan Worksheet which will be reviewed with Tracy Albee, R.N., Life Care Planner.

It should be noted that as the patient ages with her spinal cord injury she will require more and more assistance and will become more and more dependent on others for her activities of daily living, self-care, grooming and hygiene, as well as mobility.

The patient should also enroll in a smoking cessation program as soon as possible.

Prior to the patient’s cervical myelopathy she was independent in all of her basic activities of daily living, self-care, grooming and hygiene and was described as a very active individual, hard working, taking pride in her family life.

Sacramento Woman Hit By Drunk Driver Suffers Traumatic Brain Injury, Part 1 of 10

May 6, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

I. INTRODUCTION

On May 1, 2006, at 9:15 p.m., a 22-year-old woman suffered serious brain damage. A car driven by the male defendant ran a red light and struck the vehicle carrying plaintiff and two passengers. The defendant admitted to the police officers that he ran the red light. He was a drunk driver.

While she has in some respects recovered, plaintiff remains impaired by her brain damage. This is discussed below in Section V.

II. BACKGROUND

At the time of the collision, plaintiff was employed by Ross Stores as a clerk. She was in excellent physical health. She had some challenges in school and at home, growing up without a mother in a dysfunctional home. She was diagnosed at one time at age four or five as having childhood seizures and emotional problems, but by the time plainitiff reached 22-years-old she had overcome those obstacles. She had a job and was doing well.

III. THE DRUNK DRIVER CAUSES A COLLISION
Plainitff was the back seat passenger in a 2002 chevy Malibu owned and driven by her friend, Denise. In the right front seat was passenger Sandy. Both Denise and Sandy were also injured in the crash and are each represented by other counsel. Denise was traveling southbound on Sunrise Blvd.. As she approached the intersection of Greenback, she stopped for a red light. The light turned green. Denise then started through the intersection.
Driving westbound on Greenback in a 1999 BMW 328 owned by his father, was defendant. He had a red light.

Bay Area Car Crash By Employee Results In Catastrophic Injury, Part 3 of 14

May 6, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

2. Even if an agreement appears unambiguous, the Court must consider extrinsic evidence disclosing a latent ambiguity. [Wolf v. Superior Court (2004) 114 CA4th 1343, 1351]
3. No weighing of evidence. Matters going to the weight or credibility of evidence must be disregarded. One witness opposing the motion is sufficient to controvert a dozen supporting the motion. [Mann. V. Cracchiolo (1985) 38 C3d 18, 39; Binder v. Aetna (1999) 75 CA4th 832, 840]
4. Uncontroverted declarations must be accepted as true. [CCP $437c(e)]
5. The Court must consider not only plaintiff’s direct evidence but also all inferences that can be reasonably drawn from plaintiff’s evidence. A reasonable inference is sufficient to create a triable issue of fact and defeat a motion for summary judgment. [Hulett v. Farmers (1992) 10 CA4th 1051, 1059]
6. No weighing of reasonable inferences. [Aguilar v. Atlantic Richfield (2001) 25 C4th 826, 856]
7. Plaintiff’s declarations and evidence opposing the motion must be liberally construed, but defendant’s declarations and evidence are to be strictly construed. This reflects the cautious judicial attitude about granting summary judgment and depriving the plaintiff with the right of trial. [D’Amico v. Board of Medical Examiners (1974) 11 C3d 1, 21; Binder v. Aetna (1999) 75 CA4th 832, 839; Powell v. Kleinman (2007) 151 CA4th 112, 125 – 126]
Applying the above rules to the case at bar, defendant’s motion should be denied.