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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 medical malpractice case and its proceedings.)

A plaintiff has no evidentiary burden until defendant shows either a complete defense or that an essential element of plaintiffs claim cannot be established. Until that time, defendant has not met its burden of production, and plaintiff therefore has no burden to oppose. See CCP §437c(p)(2); Binder v. Aetna Ins. Co, (1999) 75 CA4th 832, 840; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (TRG) 10:249. As the party moving for summary judgment, (the defendant) had the burden to show that it was entitled to judgment with respect to all theories of liability asserted by (the plaintiff). Lopez v. Superior Court (Friedman RPI) (1996) 45 CA4th 705, 717.

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

In a medical malpractice action, the standard of care can only be established through expert opinion testimony. Stephenson v. Kaiser Foundation Hospital (1961) 203 CA2d 631, 635. Because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of expert, expert testimony is required to prove or disprove that the defendant performed in accordance with the standard of care unless the negligence is obvious to a layperson. Johnson v. Superior Court (2006) 143 CA4th 297.

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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 action and its proceedings.)

Plaintiff Mark Smith, a minor, by and through his Guardian ad Litem, Alana Smith, hereby opposes Defendant Katherine Steinberg, M.D., et al.’s, Motion in Limine No. 6, to limit the testimony of Plaintiff’s expert witnesses to those opinions and conclusions testified to at their depositions and to exclude testimony based on materials not provided to or reviewed by them prior to their depositions, as follows:

Kennemur is Not Controlling
By this motion, Defendants are asking this Court to preclude Plaintiff’s experts from saying anything that they have not already said in their depositions. This is clearly contrary to the law, and would create a possible loophole in the expert discovery statute.

In the extreme, a Defendant would simply have to ask very few questions in deposition, and thereby effectively prevent the expert from testifying about anything other than what he or she was asked.

This is particularly true in instances where a Defendant insists on asking overly broad, catch-all questions such as, do you have any other opinions not yet expressed, rather than simply deposing the expert about the specific areas about which an expert could reasonably have an opinion in this case.

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 medical malpractice case and its proceedings.)

APPLICABLE LAW

In ruling on a motion for summary judgment or summary adjudication, the court must consider all of the evidence “and all of the inferences” reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party. Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 843. The courts sole function on a motion for summary judgment is issue-finding … not issue-determination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” CCP § 437c(c); see Zavala v. Arce (1997) 58 CA4th 915, 926; Binder v. Aetna Life Ins. Co. (1999) 75 CA4th 832, 839.

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

There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Aguilar v. Atlantic Richfield Co., supra, 25 C4th at 850. If there is a single such issue, the motion must be denied. Versa Technologies, Inc v. Sup.Ct. (Motsinger) (1978) 78 CA3d 237,240.

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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 action and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
MEDICAL OPINION TESTIMONY OFFERED FROM ANYONE OTHER THAN PHYSICIANS AND SURGEONS WITH SUBSTANTIAL EMERGENCY DEPARTMENT EXPERIENCE IS INADMISSIBLE

In any action for damages involving a claim for negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute hospital emergency department. Health & Safety Code Section 1799.110(c).

The term “emergency medical coverage” means treatment given by those physicians who serve as dedicated medical staff of a hospital’s emergency room, or by physicians who have been specially employed or otherwise engaged by a hospital to furnish medical treatment in an emergency room as emergency room physicians. Miranda v. National Emergency Services, Inc. (1995) 35 Cal.App.4th 894, 903-04 [41 Cal.Rptr.2d 593].

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 action and its proceedings.)

Defendant University Hospital hereby moves this court in limine for an order that plaintiffs be precluded from introducing any medical opinion testimony or evidence relative to the treatment and care provided by emergency department physicians to decedent David Hall, Jr., at the Universal facility during his admission to that facility on August 11 and 12, 2008.

This motion is made on the grounds that such testimony is inadmissible per Health & Safety Code Section 1799.1 10. Moreover, these inadmissible opinion statements are highly prejudicial and should be excluded under.

This motion is based on the complete flies and records in this action, the memorandum of points and authorities accompanying this motion, the attached declarations, the exhibits attached hereto, and any oral and other documentary evidence allowed at the time of the hearing of this motion. (See Part 2 of 5.)

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 medical malpractice case and its proceedings.)

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant Universal Hospitals’ Motion for Summary Adjudication
INTRODUCTION

Defendant Universal Hospitals, Inc., (“Universal”), brings this motion for summary adjudication of the First Cause of Action in Plaintiffs’ Third Amended Complaint for negligence. It asserts three grounds: that Decedent David Hall, Jr.’s statutory heirs lack standing, that there was no negligence, and that Universal’s conduct was not a cause of Decedent’s death. The motion includes a voluminous recitation of certain medical records taken virtually verbatim from the recitation of the records in its expert’s declaration, none of which are material facts for summary judgment purposes. Tellingly, the motion ignores entirely the facts upon which liability is sought: the conduct of Universal’s Chief Executive Officer in initially refusing to transfer Decedent to another hospital where he could receive proper care for his life-threatening condition, and subsequently authorizing the hospital staff to lie about Decedent’s condition in order to get him transferred. This is the conduct that is the focus of the declaration Plaintiffs submit of their expert in opposition to the motion.

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

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

Civil Code Section 3333.1 Permits Defendants To Introduce Evidence Of Collateral Source Benefits.

Subsequent to the alleged malpractice by defendants, plaintiff received insurance benefits. Under Civil Code section 3333.1, defendants can introduce evidence of these benefits at trial. Subdivision (a) of section 3333.1 provides, in pertinent part:

“In the event the defendant so elects, in an action for personal injury against a health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to 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 … ”

Section 3333.1, subdivision (a) suspends the common law “collateral source rule,” under which a defendant is ordinarily precluded from introducing evidence of compensation and benefits that plaintiff receives from other sources, such as medical and disability insurance. (See, e.g., Arrambula v. Wells (1999) 72 Cal.App.4th 1006, 1009; Rotolo Chevrolet v. Superior Court (2003) 105 Cal.App.4th 242.)

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

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It is worth noting that situations similar to those described in this elder abuse 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 case and its proceedings.)

THE SIXTH CAUSE OF ACTION FOR FRAUD IS PROPERLY STATED AGAINST THE DEMURRING PARTIES EVEN THOUGH THE CAUSE OF ACTION DOES NOT ALLEGE THE PLAINTIFFS’ RELIANCE ON THEIR FALSE PROMISES AND REPRESENTATIONS

The controlling case is Randi W. v. Muroc Joint Unified School Dist. (1997) 34 Cal. 4 1066. There, the court decided the precise issue raised by the demurrer. Can a victim of the defendant’s fraud on a third person seek damages for that fraud? The answer proposed by the demurrer is “no”; whereas the answer in Randi W. is “yes.”

In Randi W., the victim had allegedly been fondled or abused by a school administrator. The Administrator had previously been employed at another school district, but when complaints mounted about his misbehavior at that school district he sought employment elsewhere. The second school district sought references from the first school district and the response was positive, to the effect that he worked well with students, etc. This representation was allegedly false, and relied on by the second school district which employed him; but the representation was not relied upon by Randi W., the victim. Nonetheless, Randi W. explained that the rule requiring the victim’s reliance on the misrepresentation was reserved for claims for economic loss, not for physical injury.

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 case and its proceedings.)

Dr. Wagner opines that had Dr. Hall properly aligned the tibial component to the tibia bone during the November 14, 2005 surgery, Ms. White’s femur and tibia would more likely than not have been properly aligned with the patella so that the patella could slide properly in the trochlea groove and not mal-track or sublux. Proper alignment of all of the components would not have caused her the continued severe pain in her left knee, to a reasonable degree of medical probability, as demonstrated by her recovery after the November 30, 2005 surgery by Dr. Gregory Brown.

Dr. Wagner testifies that because Dr. Brown properly aligned each of the components of the total knee replacement, and thereafter, Ms. White did well, had less knee pain, and her patella was tracking well with minimal lateral subluxation. It is Dr. Wagner’s expert opinion that had Dr. Hall properly aligned the tibial component during the November 30, 2005, Ms. White would more likely than not have experienced the severe pain in her left knee and subluxation and mal-tracking of her left patella and would not have needed the three subsequent surgeries performed on her left knee on January 27, 2005, May 28, 2005, and November 30, 2005.

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 slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

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

SUMMARY JUDGMENT IS APPROPRATE ON THE LOSS OF CONSORTIUM CLAIM BECAUSE PAMELA WHITE CANNOT ESTABLISH HER CAUSES OF ACTION

A spouse has a derivative cause of action for loss of consortium caused by a negligent or intentional injury to their spouse by a third party. Rodriguez v. Bethlehem Street Corp. (1974) 12 Cal.3d 382,408. However, a spouse does not have a cause of action for loss of consortium when their spouse has no cause of action in tort. Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1067. As discussed above, plaintiff Pamela White cannot establish her causes of action for Negligence and Premises Liability. Therefore, summary judgment should be granted on Kenneth White’s Loss of Consortium claim.

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

CONCLUSION
Based on the foregoing, there is no triable issue of material fact, and defendant is entitled to judgment as a matter of law. Plaintiff Pamela White cannot establish one or more of the elements of her Negligence or Premises Liability causes of action.

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