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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.)

DEFENDANT’S SPOLIATION OF CRITICAL EVIDENCE NECESSITATES AN ORDER TO PRECLUDE THE DEFENDANT’S ACCIDENT RECONSTRUCTION EXPERTS FROM TESTIFYING

The guiding California Supreme Court case controlling spoliation of evidence is Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1. In Cedars, plaintiff brought a medical malpractice action arising out of a birth injury. During discovery, the hospital was unable to locate key medical records pertaining to the birth. The plaintiff then filed a separate cause of action of intentional spoliation of evidence. The court began the opinion by noting the serious affront to justice that is caused by destroying evidence:

The intentional destruction of evidence is a grave affront to the cause of justice and deserves our unqualified condemnation. 18 Cal.4th1, 4.

In the opinion, although the court dispensed with a specific cause of action for intentional spoliation of evidence, it confirmed the broad powers that the court has in dealing with issues such as are presented in this case.

Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request. The sanctions under Code of Civil Procedure section 2023 are potent.

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 accompanying declaration of James Chin, M.D., demonstrates his competency to opine as a board certified surgeon. James Chin, M.D., has submitted his declaration in support of moving defendants. Dr. Chin has opined that Dr. Daniel Black and the attending surgeons from The CMC complied with the standard of care in their intervention, care and treatment of David White. The surgical repair of the stab wound to the neck and the subsequent surgery to control bleeding in the neck area was performed within the standard of care. The fact that a second surgery to control bleeding was performed is not below the standard of care given Mr. White injury.

The order for placement of the Foley catheter before surgery and after surgery complied with the standard of care as it allowed the physicians to monitor fluid intake and output in a patient who was undergoing alcohol withdrawal. Typically Foley catheters are not inserted by surgeons unless there is difficulty with placement. The surgeons do not monitor the status of Foley catheters unless they are notified of problems relating to the Foley catheter such as placement or function. David White’s Foley catheters continued to function properly noting normal looking urine and normal amounts of urine the green discharge from the penis and sediment noted in the urine on January 2, 2009. When the nurses noted these changes, the physician was immediately notified. The physician appropriately responded by placing a suprapubic catheter inserted through the pelvis to allow drainage of the urine.

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.)

ARGUMENT
LEGAL STANDARDS ON MOTION TO STRIKE

Motions to strike are not favored. Weil & Brown, Civil Procedure Before Trial, § 7:197. The policy of California law is to construe the pleadings liberally … with a view to substantial justice. C.C.P. § 452.

Plaintiff’s Complaint meets the notice pleading requirements under California law. What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. Perkins v. Superior Ct, (1981) 117 Cal.App.3d 1, 6. Specificity is not required in the Complaint because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading. Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.

The Complaint adequately informs Dr. Brown of the damages sought and the legal bases for those damages. Since Plaintiff has met the notice pleading requirements, Dr. Brown’s motion to strike should fail on all accounts.

PUNITIVE DAMAGES ARE ALLOWABLE IN NEGLIGENCE ACTIONS

Dr. Brown erroneously argues that her negligent or reckless use of a vehicle is not sufficient to warrant punitive damages. This is not a case of mere negligence as Dr. Brown asserts. Plaintiff seeks punitive damages against Dr. Brown pursuant to Civil Code Section 3294, which states in pertinent part:

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.)

CMC Is Liable for the Decedent’s Death Resulting from the Errors and Omissions of Medical Personnel

A hospital, whether private or charitable, is liable for the torts and negligence of its employees, including physicians, under the theory of respondeat superior. Czubinsky v. Doctors Hospital ( 1983) 139 Cal. App. 3d 361; and Elam v. College Park Hospital (1982) 132 Cal. App. 3d 332. A hospital is negligent if it does not use reasonable care toward its patients. It is the duty of any hospital that undertakes the treatment of an ill or wounded person to use reasonable care and diligence not only in operating upon and treating but also in safeguarding him, and such care and diligence is measured by the capacity of the patient to care for himself. Valentin v. La Societe Francaise de Bienfaisance Mutuelle (1946) 76 Cal.App.2d 1,4.

Negligence “is conduct which falls below the standard established by law for the protection of others against an unreasonable risk of harm.” (Rest. 2d Torts, §282.) Defendants were required to exercise the care that a person of ordinary prudence would exercise under the circumstances.’ (Citations omitted) Because application of this principle is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances.

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.)

Civil Code Section 3333.1 does not abrogate the collateral source rule as to any benefits which a medical malpractice plaintiff has received. Rather, the Legislature was precise in delineating which collateral sources were to be included in this exception to the collateral source rule; not all payments made by the state or federal governments were included. See Brown v. Stewart (1982) 129 Cal.App.3d 331.

The plain language of Civil Code Section 3333.1 provides that evidence may only be received of benefits which claimant has received. See Fein v. Permanente Medical Group (1985) 38 Cal.3d 137; Brown v. Stewart (1982) 129 Cal.App.3d 331; Robinson v. Pediatric Affiliates Medical Group (1979) 98 Cal.App.3d 907. Civil Code Section 3333.1 reasonably does not allow for the introduction of evidence concerning potential benefits to which plaintiff may be entitled, or which plaintiff may be eligible.

The uncertainty of an individual actually receiving future promised benefits was recognized by the Legislature as too speculative to include within Civil Code Section 3333.1.

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.)

XYZ, INS. COMPANY’S DESTRUCTION OF EVIDENCE HAS SEVERELY PREJUDICED THE ABILITY OF PLAINTIFF TO ESTABLISH CERTAIN FACTS CRITICAL TO LIABILITY ISSUES

Defendant’s decision to destroy their insured’s vehicle and then to misrepresent that it had never been inspected by their experts, has caused serious prejudice to plaintiff’s ability to prove certain issues extremely important to liability. Such issues include:

(1) Crush analysis that would allow plaintiff’s experts to more accurately assess the speed of defendant Brown’s vehicle when he smashed into plaintiff’s stalled car on the freeway.

(2) Determining the speed of defendant Brown’s vehicle would also be important in addressing defendant’s perception and reaction times when he observed the plaintiff’s stalled vehicle prior to this accident.

(3) The distance of illumination from defendant Brown’s headlights in front of him is also a factor that in part is based upon his rate of speed.

(4) The Delta V that all accident reconstructionists use in determining the change of velocity, which equates into the force of impact and is also a fundamental calculation for purposes of accident reconstruction.

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 physicians order for placement of a Foley catheter before surgery and after surgery complied with the standard of care as it allowed the physicians to monitor fluid intake and output in a patient who was undergoing alcohol withdrawal. Typically, Foley catheters (tubing inserted through the urinary opening of the penis with urine collected into a collection apparatus) are not inserted by surgeons unless there is difficulty with placement. Surgeons do not monitor the status of Foley catheters unless notified of problems. There was no documentation of any difficulty with placement or monitoring of the Foley catheters used in this case until January 2, 2009. Up until January 2, 2009, the facts show that the Foley catheter continued to function properly noting normal looking urine and normal amounts of urine until the green discharge from the penis was noted on January 2, 2009.

When the nurses noted green discharge the physician appropriately responded by placing a suprapubic catheter inserted through the pelvic area to allow drainage of the urine. Treatment with multiple antibiotics including Vancomycin, Zosyn, Levaquin, and Fluconazole were started appropriately in an effort to treat the infection.

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.)

REASONS WHY SUMMARY JUDGMENT MUST BE DENIED
The Standards Governing Motions for Summary Judgment

A party moving for summary judgment has both a burden of persuasion and a burden of production of evidence. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, and Evidence Code §500. The moving parties bear the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co., supra. There is no obligation on the opposing party … to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain a judgment in his favor. Consumer Cause, Inc. v. SmileCare (2001) 91 Cal. App. 4th 454, 468.

In professional malpractice cases, expert opinion testimony is required to prove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen. Garibay v. Hemmat (2008) 161 Cal. App. 4th 735, 741, citing and quoting Kelly v. Trunk (1998) 66 Cal, App. 4th 519,523. Once the moving party meets its burden of production, the burden shifts to the non-moving party to present evidence to show there is a triable issue fact as to any essential elements of its cause of action. Sanchez v. Swinerton & Walberg Co. (1996), 47 Cal. App. 4th 1461, 1465.

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.)

13 C.C.R. 1214 provided that no driver shall operate a motor vehicle while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness or any other cause, as to make it unsafe for her to begin or continue to operate the motor vehicle.

Cal. Veh. Code § 21209 provided that no person shall operate a motor vehicle in a bicycle lane established on the roadway pursuant to section 21207 except to park where permitted, to enter or leave the roadway or to prepare for a turn within 200 feet from the intersection.

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

Cal. Veh. Code § 21663 provided that except as expressly permitted pursuant to the vehicle code, no person shall operate or move a motor vehicle upon a sidewalk except as may be necessary to enter or leave adjacent property.

Cal. Veh. Code § 21952 provided that the driver of motor vehicle, prior to driving over or upon a sidewalk, shall yield the right-of-way to any pedestrian approaching thereon.

Cal. Veh. Code § 22107 provided that no person shall turn a vehicle from a direct course or move right or left upon a roadway until such’movement can be made with reasonable safety and then only after the giving of an appropriate signal.

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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.)

SYMPATHY PLEAS ARE IMPROPER AND VIOLATE THE LAW

Any plea of sympathy for the individual defendants is improper because it asks the jury to violate the law and their oath to judge the case based on the evidence presented to them and without regard to sympathy for any party. While such a plea can be cleverly worded and disguised in its presentation, it is still inadmissible and improper and should not be allowed by this Court.

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

EVIDENCE CODE §352 MANDATES EXCLUSION OF SYMPATHY PLEAS. AS IT WOULD RESULT IN PREJUDICE TO PLAINTIFF. CONFUSION OF THE ISSUES. AND WOULD MISLEAD THE JURY SUCH THAT ITS PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE

This Court has the discretion to exclude prejudicial evidence. California Evidence Code § 352 provides that:

The 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, confusion of the issues, or of misleading the jury.

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