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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.)

Not long ago, the U.S. Supreme Court, in Tory v. Cochran (2005) 542 U.S. 965, struck down an injunction issued by a judge of this court (and upheld by the Court of Appeal), prohibiting petitioners from picketing, displaying signs, placards or other written or printed material, and from orally uttering statements about one Johnnie L. Cochran, Jr., and about Cochran’s law firm in “any public forum.”

In so holding, the Supreme Court found that the injunction … amounts to an overly broad prior restraint upon speech, lacking plausible justification, and that “Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” (Tory. supra)

Then, just three years ago, in ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 135 Cal.App.4th 841, Justice Epstein, for Div. 4 of our 2nd District, affirmed a courageous (conservative Republican) judge, (Stephen Peterson, who sits in Van Nuys) who held unconstitutional, strictly on 1st Amendment grounds, Civil Code. Section 2527, a statute compelling speech, with severe consequences for its violation.

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

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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 wrongful death lawsuit and its proceedings.)

The standard of requiring proof within a reasonable medical probability for proximate cause has been repeatedly upheld. See Alef, v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216; Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 704; Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603; Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498. Plaintiff cannot recover unless it can be shown that the injuries were, more probably that not, caused by a negligent act or omission of the defendant, and this must be established by testimony from a competent medical expert.

The accompanying declaration of James Chin demonstrates his competency to opine as a board certified surgeon expert as well as his opinion to a reasonable medical probability that no act or omission to act caused by moving defendant caused or contributed to David White’ death. Dr. Chin has opined to a reasonable medical probability, that The CMC’s attending surgeons and Dr. Daniel Black did not cause or contribute to David White’s death.

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

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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 wrongful death lawsuit and its proceedings.)

The Declaration of Defendant’s Medical Expert Is Insufficient On Its Face to Preclude Existence of a Genuine Issue of Fact for Trial Because He Omits Any Account or Explanation for Defendant’s Failure to Treat the Decedent During the Critical 2-Day Period from December 30 to January 2, 2009.

Defendant’s medical expert’s, James G. Chin, M.D., declaration on its face is insufficient to preclude existence of a triable issue of fact at trial. In his declaration, he does not mention the symptoms and signs of sepsis which the Decedent exhibited on December 31, 2008. (Chin Decl. 28). Dr. Chin only mentioned the Decedent’s urine output on December 31, 2008. Decl. 28). Dr. Chin acknowledges that the Decedent’s temperature jumped to 103.2 and his white blood cell count was 18.5. Significantly, he does not acknowledge existence of other symptoms or signs of sepsis the Decedent exhibited on January 1, 2009, and he does not identify any treatment Defendant provided him on December 31 and January 1 for his symptoms and signs of sepsis.

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

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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.)

DEFENDANTS’ INFORMATION IS SPECULATIVE AT BEST. THERE IS NO CERTAINTY OR REASONABLE PROBABILITY THAT THE BENEFITS WILL INDEED BE AVAILABLE TO THE MINOR PLAINTIFF IN THE FUTURE

The defendant’s assertion regarding the future services or benefits to which the minor child may be entitled to now or years into the future is speculative at best. Whether the benefits or services identified by defendant’s expert witness will truly be available to and provided to plaintiff in the future is contingent upon many variables: (1) whether the public services identified have been, and will continue to be, funded by the Legislature, (2) whether the funding is adequate to meet the expressed goals and needs of the legislation, such as the numbers of personnel and expertise of personnel, as well as any necessary equipment and facilities, (3) the numbers of eligible recipients, and (4) whether such services may be available in other locales thereby inhibiting plaintiff or her family from living elsewhere.

It is impossible to predict, whether to a certainty or to a reasonable probability, whether the services and benefits identified by the defendants will be available to plaintiff now, a year from now, five years from now, or at any time in the future. Unlike rights which are secured by contract, the benefits or services identified by the defendant are not vested in plaintiff and may, as the public has seen, be lawfully terminated by the legislature.

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

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It is worth noting that situations similar to those described in this traumatic brain 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.)

In Taylor, the Supreme Court explained the availability of punitive damages to plaintiffs in motor vehicles tort actions:

A conscious disregard of the safety, of others may constitute malice within the meaning of Section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully [sic] and deliberately failed to avoid those consequences. Id. at 895. (emphasis added.) Taylor and Peterson are directly applicable to this case. Plaintiff’s prayer for punitive damages, which is based on Dr. Brown’s awareness of the probable dangerous consequences of operating a vehicle under fatigue and while asleep and her actions of deliberately failing to avoid the dangerous consequences by driving in a fatigued state, is undeniably supported by California law.

Plaintiff has also sufficiently alleged that Defendant’s actions were “reckless” within the meaning of C.C. § 3294. “Recklessness” is defined as:

[A] subjective state of culpability greater than simple negligence, which, has been described as a “deliberate disregard” of “the high degree of possibility” than an injury will occur. Recklessness, unlike negligence, involves more than “inadvertence, incompetence, unskillfulness, or a failure to take precautions” but rather rises to the level of a “conscious choice of a course of action … with knowledge of the serious danger to others involved in it.” Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.

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

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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.)

It is anticipated that the defendant will claim that the destruction of the vehicle was accidental or non-intentional. Even if the court finds that defendant Brown’s spoliation of evidence was inadvertent, the court should still grant plaintiff’s requests for evidentiary sanctions: where a party inadvertently destroys evidence, the court may issue sanctions intended to level the playing field or even up the score. Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3rd 877, 883-884. In this case, an expert witness inadvertently lost a failed drive shaft. The court reviewed numerous early California authorities and determined that, None of these authorities suggests a willfulness requirement for violations of subdivision (b)(2). Puritan Ins. Co., 1717 Cal.App.3rd at 884.

In Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1427, the court properly shifted the burden of proving lack of causation to the defendant attorney who negligently permitted a storage facility to destroy a defective automobile before either party could perform an inspection. The destruction of evidence made it impossible for plaintiff to prove that defendant’s negligence was the cause of her losses. (Ibid.) In addition, there is no intentional standard set forth in section 2023.030, merely that such sanctions can be issued against anyone engaging in conduct that is a misuse of the discovery process. Destroying key evidence under the facts as outlined above is surely a misuse of the discovery process.

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

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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 wrongful death lawsuit and its proceedings.)

NO ACT OR OMISSION OF A DUTY TO ACT BY DEFENDANT CAUSED OR CONTRIBUTED TO THE DEATH OF DAVID WHITE
The standard of proof for causation in a medical malpractice action requires that the plaintiff prove that the defendant’s negligence was a substantial factor in bringing about the injury or harm. Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052-53; BAJI No. 3.76 (1994).

However, a standard of reasonable medical probability was applied in Morgenroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d 521:

“Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of any intervening cause …. We consider the better rule to be that in order to comport with the standard of proof ofproximate cause, plaintiff in a medical malpractice case must prove the defendant’s negligence, in probability, proximately caused the death. The authorities in this state are in accord that in a malpractice case, a mere possibility alone is not sufficient …” Morgenroth, supra, at 533.

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

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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 wrongful death lawsuit and its proceedings.)

A Genuine Issue of Fact Exists for Trial Whether or Not the the Care and Treatment of the Decedent Fell Below the Standard of Care.

Plaintiff’s offers expert medical testimony that the care and treatment rendered the Decedent fell below the standard of care. Plaintiff’s evidence shows that for two (2) days, 48 hours, Defendants failed to treat the Decedent with broad spectrum antibiotics and surgical debridement. When Defendants got around to ordering broad spectrum antibiotics and considered surgical debridement it was too late. The need to immediately start the Decedent on a broad spectrum of antibiotics should have been apparent to the medical personnel who were caring for him. On December 31, 2008, the Decedent had multiple signs of sepsis. He had rapid increase in temperature, dramatic increase in white blood cell count, persistent tachycardia (rapid heart beat), and increasing agitation. These are telltale symptoms and sign of sepsis.

The previous day, December 30, the Decedent’s white blood cell count jumped from 8.1 to 13.2, and, on December 31, his white blood cell count increased to 19.2, and, by 4 p.m., his temperature jumped to 102 degrees.

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

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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 medical malpractice lawsuit and its proceedings.)

Plaintiffs’ Motion in Limine to Prohibit Argument or Evidence of Defendant’s Grief, Sorrow or Remorse

PLEASE TAKE NOTICE that Plaintiffs will move this court in limine, before trial and selection of jury, for the following orders:

1. Prohibit testimony and argument of grief, remorse or sorrow by Defendant Green with respect to plaintiff following his birth.

This motion is made on the grounds that such evidence is not relevant to any issues presented in this action, and would be highly improper and prejudicial to Plaintiffs.

This motion is based upon this notice, the accompanying Memorandum of Points and Authorities, any documents already on file with this Court, and upon such other oral and documentary evidence as may be presented prior to or at the hearing of this matter.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical negligence action involving the care and treatment provided to the plaintiff Amy Choo during thge course of her labor and delivery with the minor plaintiff Ellen Choo. Plaintiffs anticipate that defense counsel may improperly attempt to appeal to the trier of fact’s sympathy by eliciting testimony concerning any grief, sorrow or remorse by Defendant Paul Green, M.D., following the delivery of plaintiff in an unjustified effort to relieve the defendants from liability for Plaintiffs’ significant and permanent injuries.

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

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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.)

IT IS APPROPRIATE FOR A PLAINTIFF TO INCLUDE A PRAYER FOR A SPECIFIC DOLLAR AMOUNT. AS WELL AS A PRAYER FOR PUNITIVE DAMAGES. AS CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 425.13(a) (AS IS C.C.P. SECTION 425.10) IS PATENTLY UNCONSTITUTIONAL

Preventing plaintiffs from stating the amount of damages they seek violates a litigant’s First Amendment right to free expression, as the two cited statutes command prior restraint on freedom of expression.

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

To put this matter in perspective, we start with the dissenting opinion of our late, beloved Justice Mosk, who, more than a decade past, in Schwab v. Rondel Homes, Inc. (1991) 53 Cal. 3d 428, 440-441, 280 Cal.Rptr. 83, wrote:

“A statutory scheme that forbids a party to provide useful information-a form of compulsory silence-and that creates anomalous results … urgently needs reexamination. Moreover, in a newsworthy case, a lawyer or party can always call a press conference and trumpet the claims to the heavens, or at least to the terrestrial media. Thus, not only are (Code of Civil Procedure) sections 425.10 and 425.11 bad law and bad policy, they are an ineffective means of implementing the legislature’s apparent intent. Nor can they be made effective: I cannot conceive of legislation that could constitutionally prevent plaintiffs with sensational personal injury damage claims from announcing those claims in any forum whatsoever.”

Time marches on.

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