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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.)

PLAINTIFF HAS PLEADED EACH AND EVERY ELEMENT OF A CAUSE OF ACTION
FOR WILLFUL MISCONDUCT

Defendants Stanley Black, M.D. and ABC Medical Group next demur to Plaintiff’s third cause of action, for Willful Misconduct.

Defendants’ demurrer is replete with colloquy about how plaintiff has failed to plead any facts demonstrating that defendants’ conduct rose above the level of mere negligence. Defendants Black and ABC Medical Group have offered no judicial authority as to just why plaintiff’s pleaded claim for willful misconduct fails to meet the requirements of that well accepted tort.

The elements of willful misconduct are as follows:

1. Actual or constructive knowledge of the peril to be apprehended;2. Actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and3. Conscious failure to avoid the peril.(Witkin, 6 Summary of California Law, 9th edition, Torts, section 761)

This standard was tested in New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681. New involved two motorcyclists who sued a landowner to recover for injuries sustained while they were riding their motorcycles on defendant’s property.

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.)

According to the autopsy report of the County Coroner, the cause of death was sepsis (overwhelming infection). The Decedent died on January 3, 2009, at 8:30 a.m.

The misplaced Foley catheter balloon contributed to the sepsis in two ways: First, infected urine that cannot drain, backs up into the kidneys under pressure leading to seeding of bacteria into the blood stream and leads to rapid overwhelming infection. Second, the infection of the urine accompanied by urethral damage led to periurethral abscess formation and ultimately gangrene of the scrotum and perineum.

On December 29, 2008, the Decedent’s white blood cell count had jumped from 8.1 to 13.2 on December 30, 2008, and jumped to 19.2 on December 31, 2008, the day the fevers started.
Based upon the symptoms and signs the Decedent exhibited, the appropriate treatment of the Decedent was: immediate initiation of broad spectrum antibiotics and surgical debridement.

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 signs of sepsis.

Two days (48 hours) elapsed from the time the Decedent initially began spiking fevers to the time antibiotics were started.

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.)

Shortly after this accident occurred, XYZ, Ins. Co. retained ABC Engineering, Inc., and directed them to conduct an inspection of both of the involved vehicles. As the report from defense counsel confirms, an inspection by ABC’s engineer of the defendant’s 2008 Nissan 350Z occurred on August 4, 2009. Thus, despite the fact that XYZ, Ins. Co. was aware of a serious injury claim within weeks of this accident, and was obviously aware of the importance of having engineers inspect the involved vehicles, a conscious decision was apparently made to destroy the defendant’s vehicle and make it unavailable for inspection by plaintiff’s expert. Consequently, the specific purpose of this motion is to preclude any defense experts from testifying as to an accident reconstruction of the subject accident because of their significant advantage in having their engineers personally inspect the defense vehicle, while depriving plaintiff of a similar opportunity.

CHRONOLOGY OF RELEVANT EVENTS:

June 17, 2009: Date of the subject accident.

July 17, 2009: Multiple telephone conversations between XYZ, Ins. Co. and Robyn Black’s parents about the accident and her severe 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 wrongful death lawsuit and its proceedings.)

THE CARE AND TREATMENT RENDERED BY DEFENDANT CMC AND DR. DANIEL BLACK COMPLIED WITH THE APPLICABLE STANDARD OF CARE

Plaintiff’s cause of action sounds in professional negligence based upon allegations of medical malpractice. For a prima facie case of medical malpractice, the plaintiff must establish duty, standard of care, breach of that standard, causation, and damages. Bucquet v. Livingston (1976) 57 Cal.App.3d 914, 920-921. As a general rule, in actions based upon medical malpractice, the applicable standard of care is a matter peculiarly within the knowledge of experts … It presents the basic issue in a malpractice action and can only be proven by their testimony, barring the extremely rare case where the required conduct involved obvious facts within the common knowledge of the layman. Landeros v. Flood (1976) 17 Cal.3d 399, 410.

In medical malpractice actions the standard of care and breach of that standard must be established by the testimony of medical experts. Lawless v. Calaway (1944) 24 Cal.2d 81, 86; Simons v. West Covina Medical Clinic *1989) 212 Cal.App.3d 696, 702. When on summary judgment, a defendant submits the declaration of a medical expert establishing that his care and treatment complied with applicable standards of care, he is entitled to summary judgment absent conflicting expert testimony. Monro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985. In the present case, the care and treatment of plaintiff is not an issue within the knowledge of layperson. Expert testimony is therefore necessary to establish the applicable standard of care.

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 PERMIT THE INTRODUCTION OF THE DEFENDANTS’ PROFFERED EVIDENCE

Presumably, the defendant will assert that Civil Code Section 3333.1 permits the introduction of the information regarding future receipt of services from government agencies. Defendant’s assertion is incorrect.

Civil Code Section 3333.1 provides in pertinent part:

“In … an action for [medical] negligence, [the defendant] may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any state or federal income disability or worker’s compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental or other health care services.”

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.)

LEGAL ARGUMENT
IT IS WELL SETTLED THAT INCONSISTENT PLEADINGS ARE PERMITTED

Defendants’ Stanley Black, M.D., and ABC Medical Group’s demurrer to Plaintiffs Complaint is based (initially) on the grounds that Plaintiffs first cause of action, for medical negligence, is duplicative of Plaintiff’s second cause of action for Wrongful Birth.

It is well established that a plaintiff is entitled to plead inconsistent causes of action. Rader Co. v. Stone (1986) 178 Cal.App.3d 10.

Rader Co., supra, involved an appeal from an Order of dismissal following the sustaining of demurrers, without leave to amend.

In holding that inconsistent causes of action are appropriate, the Rader Co., supra, court, stated, at p.29, of 178 Cal.App.3d, as follows:

Moreover, Rader is not precluded by law from alleging in one cause of action the breach of a contract and an inconsistent theory of recovery in another cause of action. To the extent Rader’s allegation in one cause of action of a fully executed contract with Stone is at odds with an allegation in a separate cause of action that PSR interfered in Rader’s advantageous relationship with Stone, such inconsistency is not fatal to Rader’s claims at the pleading stage, as “a plaintiff is permitted to plead inconsistent or …, alternative counts.” (Rader Co., supra at p.29, Emphasis Added, citing Skelly v. Richman (1970) 10 Cal.App.3d 844)

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.)

Within approximately two weeks after this accident, defendant Brown’s insurance company, XYZ, Ins. Co., made contact with plaintiff’s parents. XYZ, Ins. Co. was advised as to the serious injuries suffered by plaintiff during numerous telephone conversations that took place with the Black family and XYZ, Ins. Co.’s adjuster at that time, Kyle Hill. Additionally, Mr. Hill sent correspondence on behalf of XYZ, Ins. Co. to the Black family requesting authorizations to obtain medical records, thus further evidencing the fact that XYZ, Ins. Co. was fully aware that injuries were sustained. XYZ, Ins. Co. obviously recognized the importance of inspecting the involved vehicles, as reflected by their correspondence of July 31, 2009, to the plaintiff asking permission to have their “accident reconstruction engineer” inspect the Black’s 2007 BMW 325i that was involved in this accident.

In early August of 2009, this law firm was retained to represent Robyn Black. Correspondence was sent to the adjuster Kyle Hill, which contained a paragraph as follows:

“I also request that you preserve your insured’s vehicle for inspection purposes. I am sure you will do all within your power to preserve any relevant evidence for this case, as required by California Penal Code section 135.”

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.)

ADDITIONAL ALLEGATIONS OF MALICE – DESPICABLE CONDUCT WHICH IS CARRIED ON BY DR. BROWN WITH THE WILLFUL AND CONSCIOUS DISREGARD OF THE RIGHTS OR SAFETY OF OTHERS

Plaintiff specifically pled additional facts – not conclusions – supporting the allegations of malice. For instance, in Paragraph 29, the following facts were pled:

29. Defendant Melissa Brown, M.D., failed to use reasonable care while negligently, wantonly and recklessly driving the subject vehicle east on University.

Defendant Melissa Brown, M.D., fell asleep while driving and drove the subject vehicle up and onto the raised sidewalk and struck the pedestrian Plaintiff from behind.

Plaintiff flew violently onto the hood and smashed into the windshield, then up onto the roof. He was carried approximately 59 feet east before being thrown off the top of the vehicle. Defendant Melissa Brown, M.D., then dragged Plaintiff approximately 38 feet where she ultimately ran over him while still asleep.

Witnesses at the accident site described Defendant Melissa Brown, M.D., as being dazed and confused, and acting like a spectator who did not understand what was going on.

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 summary judgment procedure protects defendants from spurious or meritless complaints and expedites the administration of justice by eliminating unnecessary trials. McCreery v. Eli Lilly and Company (1978) 87 Cal. App. 3d 77, 81; DeLeon v. Commercial Manufacturing and Supply Company (1983) 148 Cal.App. 3d 336, 342.

To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the “action has no merit or that there is no defense” thereto. Code of Civil Procedure section 437 (c) (a). A defendant moving for summary judgment meets this burden by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to the action. Code of Civil Procedure section 437 c (o) (2); Addy v. Bliss & Glennon (1996) 44 Cal. App. 4th, 205. Once the defendant makes his showing, the burden shifts to the plaintiff to show a triable issue of material fact exists as to that cause of action or defense.

An expert declaration must demonstrate the basis for the opinion; a conclusory statement is insufficient to create a triable issue of fact. Kelley v. Trunk (1998) 66 Cal.4th 519, 524-525, 78 Cal.Rptr.2d 122.

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.)

STATEMENT OF FACTS
On December 22, 2008, David White, the Decedent, a 44-year-old male, was transported by ambulance to National Hospital, operated by Defendant (CMC), after sustaining a stab wound to his neck. The stab wound was serious but not life threatening. His injuries required two operations by the Trauma Service to stop bleeding vessels in his neck.

During his hospital stay, the Decedent exhibited signs and symptoms of alcohol withdrawal, which included tremor, hallucinations, agitation, sweating and rapid pulse. He was treated appropriately with Ativan, Haldol, and IV Thiamine supplementation for his symptoms of alcohol withdrawal.

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

Until December 30, 2008, the Decedent’s behavior, vital signs, and lab work remained fairly stable. On December 30, his white blood cell count jumped from 8.1 to 13.2.
On December 31, 2008, the Decedent’s white blood cell count increased to 19.2, and by
4 p.m. his temperature had jumped up to 102 degrees. He continued to have fevers throughout the night and continued with increasing temperatures on January 1, 2009 to 103.5 degrees by

6 a.m.

On January 2, 2009 at 10:30 a.m., for the first time medical personnel at National Hospital sought a source of the infection and cultures were ordered. Antibiotics were not ordered until 3 p.m. on January 2, 2009.

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