| by

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 Motion in Limine to Limit the Admissibility of Evidence That Plaintiff May be Entitled to Receive Benefits from Governmental Agencies and Programs

Plaintiff Ellen Choo herewith submits the following Memorandum of Points and Authorities regarding the Inadmissibility of Evidence that plaintiff may be entitled to receive benefits from governmental agencies and/or programs.

In summary, it is anticipated that the defendant physician, in an effort to offset his obligation for the damages wrought upon the minor plaintiff, will attempt to introduce evidence that the minor plaintiff may be entitled to receive services, such as therapy or vocational training, from certain governmental agencies and/or programs.

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

Plaintiff opposes the admissibility of such evidence for the following reasons:

(1) The collateral source rule precludes such evidence;

Continue Reading ›

| by

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.)

On December 23, 2008, a CT study revealed bleeding around the stab wound site. Mr. White was taken back to surgery for ligation and cauterization of the bleeding area. There were no complications. Mr. White was extubated on December 23, 2008, without difficulty. On December 23, 2008, Mr. White’s Foley catheter was patent with almost colorless urine. His urine output total for December 23, 2008, was approximately 1771 cc. Mr. White’s Foley catheter was patent and draining pale urine. His urine output for December 24, 2008, was approximately 1500 cc.

On December 25, 2008, Mr. White was not aware of his surroundings and having hallucinations due to alcohol withdrawal. He was maintained on ETOH withdrawal protocol. Mr. White had an elevated temperature of 102. Pan-cultures including blood, urine, and sputum were obtained in order to determine the source of the temperature elevation. On this same date, the Foley catheter was draining clear amber urine with a total urine output of approximately 1880 cc.

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

Continue Reading ›

| by

It is worth noting that situations similar to those described in this traumatic brain injury case could just as easily occur with hospital staff 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.)

Plaintiffs Opposition to Defendant Melissa Brown, M.D.’s, Motion to Strike Punitive Damages
INTRODUCTION

On June 16, 2009, at approximately 2:30 p.m. in the afternoon, Melissa Brown, M.D., fell asleep while driving and mowed down the Plaintiff, David Hall, as he was jogging on the sidewalk. Dr. Brown caused David to sustain serions and permanent injuries, including: traumatic brain injury, post-traumatic stress disorder, thoracic spine fractures, left fibula fracture, multiple lacerations, severe abrasions (road rash) from his upper back, arms, knees, thighs and toes, and contusions.

Dr. Brown, who is to do no harm as a physician, left Universal Hospital where she had been working, and drove home in a fatigued and sleep-deprived condition. Her ability to drive safely was significantly impaired. Her decision to drive while impaired is no different than a person driving under the influence of drugs or alcohol in conscious disregard for the safety of others. Punitive damages are routinely pled in motor vehicle accident cases where the defendant was driving under the influence. See, e.g., Peterson v. Superior Ct. (1982) 31 Cal. 3d 147; Taylor v. Superior Ct (1979) 24 Cal.3d 890, 894.

In fact, Plaintiff is clearly entitled to plead punitive damages under statutory and common law rights controlling his causes of action. Those include, inter alia: Civ. Code § 3294; Potter v. Firestone & Rubber Co. (1993) 6 Cal.4th 965, 985; Taylor, 24 Cal.3d at 894.

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

Continue Reading ›

| by

It is worth noting that situations similar to those described in this wrongful death 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 action and its proceedings.)

In Wheeler, supra, the patient, Mr. Wheeler, arrived at the hospital for cardiac tests (in non-emergency circumstances), and he did not read the Consent to Admission form before signing it The court emphasized that no one at the hospital called his attention to the Arbitration Option paragraph, much less explain its implication or the options available, now was he given a copy of the document. Significantly, because Mr. Wheeler suffered injuries in the hospital that left him unable to communicate, the court relied on the declaration of his wife, who had been present with him during the admission process. It stated, “Whether a person signed a document without reading it is an inference which may rationally be drawn by a percipient witness to the circumstances surrounding the event.” Id at 362. The court found that “…the uncontradicted evidence shows that Mr. Wheeler was unaware of the existence of the “Arbitration Option” provision.” Id at 361. Moreover, under Wheeler, the general presumption that “… ordinarily one who signs a contract is bound by its terms even though he signs it without reading it was held to be … inapplicable to adhesion-type contracts.” Id at 368.

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

The principles embodied in Wheeler are paralleled in the present case, especially given the evidence establishing that Mr. Hall arrived at the hospital ER by ambulance, reporting pain at a level of 9-10/10. Given this evidence, Mr. Hall cannot be held responsible to have read and understood the independent contractor clause buried within the Form, nor can this provision of this standard adhesion contract be enforced, as ample authority has firmly established a patient who is in the throes of a medical emergency-or even a non-emergency hospital patient-is not held to the same standards as a healthy individual contemplating a business transaction in a normal situation.

Continue Reading ›

| by

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.)

None of the expert witnesses listed above has been deposed by the defendant, despite the fact that this same defendant sought a continuance of the December 2009 trial in order to have more time to conduct expert discovery. XYZ contends, essentially, that either Dr Bakstrom or Dr. Hall must go, to save time and money, without actually having heard a word from either expert. Plaintiff Brown contends that both Dr. Bakstrom and Dr. Hall are essential to her case against the formidable, well financed, and experienced corporate defendant (as well a the other two defendants – Valley Chevrolet and The Auto Center).

It is worth remembering that XYZ designed, manufactured, distributed, and marketed the subject tire. Much of the discovery and investigation associated with its defense was incidental to its primary business – making, marketing, and selling tires. Dr. Brown, a retired dentist, has had to start from scratch, using experts who have not had the benefit of unlimited access to XYZ ‘s wealth of resources.

Dr. Brown needs both Dr. Hall and Dr. Bakstrom. Even if there were some overlap subject matter, both of these experts would still need to be deposed because there are areas o their testimony which do not overlap at all (i.e. accident reconstruction, chemical composition and decomposition). Since both experts are necessary and would still testify, even if any hypothetical overlap were excluded at trial, plaintiff assumes that the defendants would take the experts’ depositions.

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

Continue Reading ›

| by

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 brain injury lawsuit and its proceedings.)

WHITE SUFFERED NECK, BACK AND SHOULDER INJURIES

Plaintiff had pre-existing degenerative disc disease (DDD) in her neck and back and occasional left shoulder pain. In the accident, she aggravated these conditions causing her DDD to lit-up. Mrs. White has continued to have left side weakness and low back flare ups. These problems have been treated with chiropractic therapy, physical therapy and massage therapy to manage her neck, shoulder and back symptomatology. Defendants concede she suffered soft tissue injuries in the accident but claim they should have healed in a matter of a few months.

PAST MEDICAL BILLS
Total Medical Bills without Prescriptions. $ 31,020.45
EMPLOYMENT LOSS

In November 2007, Mrs. White was hired by the County Bank. As a Vice-president at County Bank, Mrs. White’s salary was set at $87,500.00 plus benefits and bonuses. After the accident, she was let go within weeks for strategic reasons by County Bank. Mrs. White tried to get another job with a bank but was unsuccessful. In April 2008, Mrs. White took a job as a front desk receptionist/office assistant at Lee Chiropractic Clinic where she was paid $11.00 per hour. Mrs. White was hired for her lovely demeanor and obvious people skills and was expected to learn the job within a few months. Unfortunately, Mrs. White’s cognitive injury led to her having difficulty working as a receptionist. Dr. Lee explained that Mrs. White had numerous difficulties with her job requiring frequent retraining as follows:

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

Continue Reading ›

| by

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 action and its proceedings.)

DR. HILL’S PERSONAL OPINIONS WOULD RESULT IN UNDUE CONSUMPTION OF TIME, WOULD CREATE A SUBSTANTIAL DANGER OF PREJUDICE TO DEFENDANT, AND CAUSE CONFUSION AND POTENTIALLY MISLEAD THE JURY (cont. below)

Since there are numerous other reasons, many unknown to Dr. Hill, why defense attorneys have not sought his expertise in the recent past a significant amount of time would be required on cross examination to establish Dr. Hill’s opinions have no factual basis and are not based upon personal knowledge. Additionally, cross examination of Dr. Hill regarding medical societies, medical groups, and faculties that allegedly prohibit their members from testifying on behalf of plaintiffs would consume an inordinate amount of time.

More importantly, allowing testimony about the defense attorneys “shift in attitude,” the alleged prohibition by the medical groups, faculties, and societies, or the meritorious nature of plaintiff cases, would create the very real danger of prejudice to the defendant in this matter. Dr.Hill’s testimony infers not only that he has not been retained by the defense bar because the defense doesn’t like his opinions, but also that if a non-supportive opinion is obtained from him the defense bar will simply find someone else. These opinions have no foundation and are highly prejudicial to the defense.

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

Continue Reading ›

| by

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.)

In her expert witness disclosure statement Dr. Brown identified seven (7) retained experts Of these seven, two were voluntarily withdrawn by the plaintiff, leaving five. Of those five:

Paul Smith, M.D. , is a neurologist designated to testify regarding Dr. Brown’s head injury and dementia. None of the other retained experts are qualified to provide expert testimony on any medical/neurological issue.

Alexa Chong, R.N., is a home health care expert, designated to testify regarding the value of the services rendered to Dr. Brown by her family members. No other expert designated by any party is qualified to give such testimony.

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

Sven Bakstrom, Ph.D., is an engineer who will give testimony regarding his reconstruction of the subject collision and he analysis of the failure of the tire. No other expert designated by Dr. Brown is qualified to perform accident reconstruction, and no other expert is a mechanical engineer.

Bob Hall, Ph.D., is a professor of chemistry. Dr. Hall will give testimony regarding the chemical factors associated with the failure of the subject tire. Dr. Hall is not an accident reconstructionist. The focus of his testimony will be on the chemical factors that lead to tire failure by age.

Continue Reading ›

| by

It is worth noting that situations similar to those described in this wrongful death 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 action and its proceedings.)

As the Wheeler court made clear, even a patient who arrives at a hospital at his doctor’s direction, under non-emergency circumstances will not be held to terms in a standardized, adhesive admission form that go beyond what the patient could reasonably expect to find in such a document absent a clear showing that he or she was made fully aware of such terms.

The Court stated: The application of adhesion contract principles to an arbitration clause in a contract for medical services presents distinct problems concerning the patient’s awareness of the contractual provision and his understanding assent thereto. As Professor Henderson points out in his comprehensive article entitled Contractual Problems in the Enforcement of Agreements to Arbitrate Medical Malpractice, supra, 58 Va.L.Rev. 947, at page 987: Given the distinctive nature of the medical services transaction, the use of a standardized form runs the risk of failing to satisfy the policy of awareness.

The arbitration provision, viewed from the perspective of the patient, is indeed subsidiary to the primary exchange of medical services for an undertaking of payment after consenting to medical procedures, the contract purchaser of medical services may fairly assume that no obligations other than that of payment are imposed. Absent some guidance by the medical entity, the patient has little reason to know anything at all about arbitration, let alone that the tendered document requires it. Nor should the medical entity ordinarily expect a patient to read or even to understand a broad arbitration clause. Id at 357-358.

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

Continue Reading ›

| by

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.)

Memorandum of Points and Authorities in Support of Defendant CMC’s Motion for Summary Judgment
INTRODUCTION

This is an alleged wrongful death case surrounding the care and treatment rendered by defendant to plaintiff’s decedent David White, plaintiff asserts defendant was negligent in the post surgical management of plaintiff’s decedent leading to death caused by a urethra infection due to a misplaced Foley catheter. Moving defendant, The CMC, submits it motion for summary judgment supported by defendant’s expert, surgeon Dr James Chin, to the Court seeking judgment in its favor and against plaintiff on the grounds that there is no triable issue of material fact in that moving defendant did not breach the standard of care and did not cause or contribute to David White’s death.

STATEMENT OF FACTS

On December 22, 2008, decedent David White, age 44 years, was brought by ambulance to County Medical Center with a stab wound to the left lateral neck. He was under the influence of alcohol. Mr. White was evaluated by trauma surgeon Dr. Daniel Black. Mr. White’s vital signs appeared stable with the pressure of 132/82, pulse rate of 110, respiratory rate of 24 with pulse ox of 100%. His blood alcohol level was 0.438, well above the legal limits.

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

Continue Reading ›