Personal Injury Lawyer Blog

Sacramento Defendant’s Personal Property Becomes Potential Issue In Medical Malpractice Suit, Part 3 of 3

October 30, 2011 | by Moseley Collins

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Plaintiff’s counsel, in open court, intimated that he may reference Hall’s bankruptcy as there were three certain properties included in the initial bankruptcy application. Further information regarding his purpose for introduction of that evidence was not given, but moving party can only assume that it will be used to reference property that may have been community property of Donna Hall as well. Using that information to suggest potential assets of Donna Hall, if that is the intended purpose, would be improper, as there must be a judgment before evidence of assets can be discussed. Here, as there is clearly no judgment, such introduction would be untimely and highly improper.

EVIDENCE OR REFERENCE TO THE PERSONAL BANKRUPTCY OF DEFENDANT IAN HALL HAS NO PROBATIVE VALUE IN THIS CASE, WILL NECESSITATE AN UNDUE CONSUMPTION OF TIME AND IS UNDULY PREJUDICIAL

Evidence Code section 352 states that [t]he Court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues or of misleading the jury.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Sacramento Healthcare Facility Sued For Medical Malpractice, Part 3 of 4

October 27, 2011 | by Moseley Collins

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

PLAINTIFF CANNOT PROVIDE EVIDENCE TO RAISE A TRIABLE ISSUE OF MATERIAL FACT AS TO THE CAUSE OF ACTION FOR MEDICAL NEGLIGENCE
In order to prevail on a cause of action for medical negligence, a plaintiff must prove that the defendant was negligent by acting below the applicable standard of care, and that this negligence was a cause of plaintiff’s claimed injuries and damages. If the plaintiff cannot prove both of these elements, she cannot maintain a cause of action for medical negligence.

As will be demonstrated, Dr. Black, acted within the applicable standard of care and his actions did not cause nor contribute to plaintiff’s claimed injuries and damages. Should this Court grant Summary Judgment on either or both grounds, plaintiff’s cause of action must fail.

The Issues Of Medical Negligence And Causation Can Only Be Determined By Expert Testimony

In a medical malpractice action, the plaintiff must prove two things in order to prevail. The plaintiff must first prove that the defendant’s actions fell below the applicable standard of triable issue of material fact as to the standard of care rendered by defendants, Summary Judgment must be granted in Dr. Black’s favor.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Insurance Company Fights Sacramento Car Accident Victim Over Expert Costs, Part 3 of 4

October 27, 2011 | by Moseley Collins

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

EXPERT FEES cont.

Disputed Costs for Dr. Greene:

1. $4725.00 for apparently 10.5 hours of work at $450 per hour
2. $175.00 for an MRI/CT scan
3. $225.00 for 3 X-Rays
4. $800.00 for a confirmatory consultation
5. $450.00 for a preparation of a report

As to number (1) above, the deposition testimony of Dr. Greene loosely estimated that he only had put in 7 hours on his review of this case (far less than the 10.5 Defendant has claimed). A reasonable review of the medical records in the Plaintiff’s opinion could have been done in less than half the time and accordingly the costs for this should be cut in half to $2,362.50 for 5-plus hours of work.

Numbers (2) and (3). The MRI/CT scans and the X-rays were unnecessary as several had already been taken and the Defense should have provided those to Dr. Greene well before his evaluation of the client. Therefore, these costs should not be reimbursable at all.

For number (4) Plaintiff is unsure what a confirmatory consultation even is. Without some description and or justification of this cost, Plaintiff refuses to pay for it.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Sacramento Bus Accident Victim Needs Multiple Surgeries After Collision, Part 7 of 7

October 26, 2011 | by Moseley Collins

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car versus bus accident lawsuit and its proceedings.)

Orthopedic Exam:

Dr. Stanley Lee met with the plaintiff on April 13, 2009. The defense concedes that plaintiff fractured her right ankle during the accident sequence. The defense also concedes that the surgery performed on her right knee on February 2, 2006 relates to the accident as well. However, we do not concede that the left knee surgery on October 9, 2009, has any relation to the vehicular accident.

Dr. Lee had an opportunity to meet with the plaintiff prior to her left knee surgery. In his report of April 13, 2009, he concluded that the records do not support a significant injury to her left knee and surgical intervention on her left knee was not indicated, in his opinion. Nonetheless, the surgery was performed six months later. Dr. Lee did not find medical evidence to support that she sustained an injury to her left leg during the accident sequence. As it turns out, plaintiff was having problems with her left knee (and with her right knee as well) prior to this accident, and Dr. Lee believes that the surgery of October 9, 2009 more relates to a trip and fall that the plaintiff sustained years ago rather than to the vehicular accident.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Sacramento ATV Accident Victim’s Brain Injury Causes Academic Hardship, Part 3 of 4

October 25, 2011 | by Moseley Collins

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Plaintiff seeks to exclude evidence which specifically meets the parameters of relevance, which is intimately tied to the subject matter of the action. See C.C.P. §2017.010; Norton v. Superior Court, 24 Cal.App.4th 1750, 1760. At test of relevancy sometimes used by the Courts is the reasonable inference test, where the general test of relevancy of indirect evidence is whether it tends logically, naturally, and by reasonable inference to prove or disprove a material issue. People v. Jones (1954) 42 Cal.2d 219, 222.

Here, there is a direct relationship between the evidence plaintiff seeks to exclude and critical issues of causation and damages. Plaintiff contends that his academic difficulties are related solely to his traumatic brain injury, and seeks to exclude evidence that his failure to finish high school was related to the entirely unrelated incident involving the gun and knife. The issue is what consequences plaintiff can prove were attributable to his underlying cognitive injuries. Thus, any evidence that impacts that issue is relevant and admissible before the trier of fact.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Doctors Negligently Treat Sacramento Girl Who Suffers Nasty Infection, Part 3 of 6

October 25, 2011 | by Moseley Collins

It is worth noting that situations similar to those described in this medical negligence case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

GILLIAN SMITH DOES NOT HAVE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

In the opposition, Gillian Smith asserts that she has a valid cause of action for negligent infliction of emotional distress (“NIED”) because “Defendants failed to diagnose, treat and warn Plaintiffs of the impending danger to which she unknowingly exposed family members and the public.” Plaintiff relies on Burgess v. Superior Court (1992) 2 Cal.4th 1064; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916; and Ochoa v. Superior Court (1985) 39 Cal.3d 159. These cases do not support a claim for negligent infliction of emotional distress by Gillian Smith.

a. The Allegations Do No Support a Claim for NIED Based on a Direct Victim Theory.

By citing to Burgess and Molien, Gillian Smith is apparently contending that she can recover for NIED as a direct victim based on her allegedly exposing family members and the general public to the allegedly contagious disease. There is no merit to the claim.

Burgess v. Superior Court, supra, 2 Cal.4th 1064, has no application to this action. Burgess is limited to the question addressed by the Supreme Court: Can a mother recover damages for negligent inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery? (2 Cal.4th at p. 1069.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Sacramento Plaintiff Becomes (Unwitting) Creditor In Medical Malpractice Lawsuit, Part 2 of 3

October 24, 2011 | by Moseley Collins

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

REFERENCE TO OR EVIDENCE OF IAN HALL’S PERSONAL BANKRUPTCY IS IRRELEVANT TO THE INSTANT TRIAL AND UNTIMELY EVIDENCE

Post-Op Complications To Knee Replacement Surgery Lead To Sacramento Medical Malpractice Lawsuit, Part 2 of 4

October 23, 2011 | by Moseley Collins

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Jonathan Black, M.D., is a physician who is Board certified in internal medicine, and practices adult internal medicine at National Medical Clinic and serves as the Medical Director at Community Care and Rehabilitation Center (“CCRC”). Plaintiff filed a Complaint containing one cause of action for medical negligence stemming from the care and treatment associated with a total left knee replacement surgery. As will be demonstrated, plaintiff cannot provide this Court with any competent, admissible evidence that raises a triable issue of material fact. Summary judgment is appropriate.

STATEMENT OF FACTS
On November 14, 2008, plaintiff Susan Dean underwent a total left knee replacement surgery, performed by defendant, Jim Hall, M.D. Plaintiff was discharged from National Community Hospital on November 17, 2008, and transferred to CCRC. Defendant, Jonathan Black, M.D.

(“Dr. Black”) saw the plaintiff on November 20, 2008, at CCRC. At that time Dr. Black noted that plaintiff was in no acute distress. Her knee was clean, dry, and intact. Plaintiff continued to receive physical therapy at CCRC until her discharge date of November 26, 2008.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Sacramento Automobile Accident Victim Fights Excessive Costs, Part 2 of 4

October 23, 2011 | by Moseley Collins

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

MEMORANDUM OF POINTS AND AUTHORITIES
DEFENDANTS’ COST MEMORANDUM IMPROPERLY CLAIMS $25,773.25 IN COSTS WHICH SHOULD BE TAXED

Code of Civil Procedure § 1033.5 provides for the items recoverable as costs. The statute sets forth items specifically recoverable (subdivision (a)) and not recoverable (subdivision (b)), with all remaining items discretionary with the court (subdivision (c)(4)). In all cases, however, allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to the preparation, and reasonable in amount. Id. at § 1033.5 (c)(2) and (c)(3).

As set forth below, Defendants have included unreasonable and unjust costs in this lawsuit which should be denied.

A. FILING AND MOTION FEES

Regarding Item No. 1 in Defendants’ Memorandum of Costs, “Filing and Motion Fees” items a, b, and c wrongfully seeks $129.50 for the filing of 1) Stipulation and Order to Continue Trial; 2) a Motion to Compel a Court Ordered Psych Exam as well as an Ex Parte for the same.

Again, as noted above, Plaintiff won the case however she failed to beat Defendant’s 998 offer. Being the case Defendant is only entitled to post-§998 offer costs. All of these filings took place well before the trial in this matter and therefore any associated costs should be disallowed.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Doctor’s Care Below Standard In Sacramento Birth Injury case, Part 3 of 4

October 23, 2011 | by Moseley Collins

It is worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Plaintiff Denise Easterby was injured while at a dentist’s office when a dental assistant stepped on a wire connected to a sensor in plaintiff’s mouth. She received pain management and physical therapy for pain in various areas of her body for several months, to little success. Thereafter, plaintiff was referred to an orthopedic surgeon, who diagnosed her with nerve compression, herniated disks and compressed spinal nerves. He performed successful surgery to resolve the conditions.The orthopedist, Dr. John Brown, was retained as an expert by plaintiffs and was deposed by the defense approximately seven months before trial. At deposition, Dr. Brown testified that he had not formed any opinions on the subject of causation as they related to the initial dental accident. Id. at 775. When asked whether he had an opinion as to what caused the plaintiff to require back surgery (whether it was a pre-existing condition or the result of the dental accident), the doctor said that he didn’t know what caused it. Id.

Thereafter, three months before trial, plaintiffs sent the defense correspondence indicating that Dr. Brown now intended to express as to causation at trial. Id. at 775-776. The defense did not seek to depose the doctor after receipt of the letter. Id. at 776.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.