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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.)

ALLEGATIONS

Plaintiff contends that Dr. Hall’s surgeries and follow-up care fell below the standard of care and were the cause of her injuries and that she suffered pain as a result of two unnecessary surgeries performed by Dr. Hall on January 27 and May 28, 2008. However, plaintiff herself has stated that after the November 2005 total left knee replacement by Dr. Jones, she has made a complete recovery and healed well. Presently, she experiences very little pain other than pain she characterizes as consistent with her age.

As stated above, the defendants have designated an expert who will testify on the issue of causation. These experts will opine that plaintiff has not been injured by any action, or claimed inaction, by the defendants.

The Defendants’ Alleged Medical Negligence Was Not The Proximate Cause Of The Plaintiffs Injuries.

If a result to a patient would have occurred in the ordinary course of events anyway and independently of anything done or not done by a physician, the result cannot be said to have been caused by the physician. (Huffman v. Lindquist (1951) 37 Cal.2d 465, 479; Deckard v. Sorenson (1960) 177 Cal.App.2d 305, 308; Bennett v. Los Angeles Tumor Institute (1951) 102 Cal.App.2d 293, 296 and Frantz v. San Luis Medical Center, supra.

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 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.)

Expert Testimony Establishes That Defendants reaches of the Standard of Care Contributed to Ms. White’s Injuries To a Reasonable Degree of Medical Probability

Expert testimony on the issue of causation is conclusive in a medical malpractice action and plaintiff must prove that the alleged breach of duty of the defendant was a substantial factor in causing their injuries. Bromme v. Pavitt, (1992) 5 Cal.App.4th 1487, 1498; Dumas v. Cooney, (1991) 235 Cal.App.3d 1593, 1603. Here, the testimony of Dr. Robert Lee establishes triable issues of fact that moving defendant’s breaches of the standard of care substantially contributed to Ms. White’s injuries, to a reasonable degree of medical probability.

It is Dr. Wagner’s expert opinion that Dr. Hall’s breach in the standard of care in his performance of the November 14, 2005 left total knee arthroplasty on Ms. White, to a reasonable degree of medical certainty caused Ms. White injuries in causing her additional and unnecessary pain and suffering and three subsequent surgeries on her left knee. Dr. Wagner explains that the three bones that come together at the knee joint are the patella (kneecap), the tibia (shin bone), and the femur (thigh bone).

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 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.)

Wagner, as a health care provider .Davis’s function was allegedly as director of nursing. It was her exclusive responsibility to direct the nursing service. As set forth in the moving memo at p. 6, at 22 Cal. Code Regs. §72327(c) she is to have responsibility and accountability for the nursing services within the facility.

And as alleged in 19G of the 3d AC, her responsibilities were to ensure that care was provided in an organized and effective manner by all care giving disciplines within the facility. This latter duty is outside the scope of nursing practice and her license as a nurse, but is instead imparted to the Director of Nursing as an employee of a skilled nursing facility operation. This latter duty has been entirely overlooked by her demurrer, even though explicitly alleged in the 3d AC.

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

Hill, as health care providers. There are three basic categories of allegations against the Hill defendants. First, at 3, it is alleged that Hill operated various aspects or portions of the facility. They have no license to do so, and are unprotected by MICRA to the extent that they did operate the business. Second, at 14, Hill is alleged to have caused the dissolution of National Convalescent Hospital, Inc., with the result that they became the owner of its assets.

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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 case and its proceedings.)

CCP 998(c)(2)(A) deals with the situation where a defendant’s 998 offer to compromise is not accepted by a plaintiff and that plaintiff does not obtain a more favorable award than the defendant’s 998 offer to compromise. In this situation CCP 998(c)(2)(A) states, [i]n determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the post-offer costs. The court in Bennett v. Brown (1963) 212 Cal.App.2d 685 explained the rationale for this rule excluding plaintiff’s post offer costs when determining if their award is more favorable than the defendant’s 998 offer. To hold otherwise would enable plaintiff to dramatically increase its postoffer cost for the sole purpose of increasing the likelihood that its final judgment would exceed defendant’s offer. Bennett v. Brown, supra, 212 Cal.App.2d at p. 688.

As previously discussed, this case is distinct from the situation in Bennet. In this case, the plaintiff’s 998 offer to compromise was rejected by the defendants. Therefore the Bennet rationale does not apply. Moreover, there is nothing in CCP 998 that excludes postoffer costs in situations where a plaintiff’s offer is not accepted by the defendants. CCP 998 provides the following for these situations:

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 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 INDIVIDUAL DEFENDANTS ARE NOT ENTITLED TO THE BENEFIT OF MICRA, EVEN AS TO THE CLAIM OF NEGLIGENCE AS SET FORTH IN THE FIRST CAUSE OF ACTION

In the preceding section, plaintiffs established that as to the statutory tort of wrongful death, since it is based on intentional tort theory, the statute of limitations is C.C.P. §335.1. In this section, dealing with the demurrer of the individual defendants, the demurrer fails because they do not have a requisite license, or were engaged in unlicensed activity.

First, the Administrator, Mr. Stein. California Nursing Home administrators are licensed under Division 2, Chapter 2.35, Article 1 of the Health & Safety Code, starting with Health & Safety Code §1416. MICRA describes those benefitted as health care providers under C.C.P. 340.5 as follows:

Health care provider means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. (emphasis added.) Manifestly, as alleged, Stein is a nursing home administrator, but under law not a licensed health care provider. A closer look at the moving memorandum tacitly concedes Stein’s problem.

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.)

Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Moore, supra, 111 Cal.App.4 at 476. In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable. Ibid. Moreover, where plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of proof of showing the owner had notice of the defect in sufficient time to correct it. Ibid.

Plaintiff has not and cannot produce any evidence to establish that Safeway Inc. had actual or constructive notice of the alleged dangerous condition on the floor prior to plaintiff’s fall. Plaintiff concedes that she has no information as to how long the substance had been Memorandum of Points and Authorities In Suort of Defendant Safeway Inc.’s Motion for Summary Judgment present on the floor prior to her fall or how it came to be on the floor.

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.)

Plaintiff sets forth triable issues of material fact demonstrating that moving defendant breached the standard of care in their care and treatment of Sandy White through the expert declaration of Board Certified orthopedic surgeon, Robert Lee, M.D. As more fully set forth in Dr. Wagner’s declaration attached hereto, he has reviewed the relevant records in this matter and is qualified to offer his expert opinions with regard to Dr. Hall’s negligence.

Based on his education, training, experience, and review of the records, Dr. Wagner opines that Dr. Hall breached the standard of care as follows: (a) Negligently fitting and placing the tibial component of the total knee replacement during the November 30, 2004 surgery, and (b) negligently failing to recognize and revise the components of the total knee replacements during Dr. Hall’s subsequent surgeries on Ms. White’s left knee on January 27, 2005 and May 28, 2005. The total knee replacement surgery of November 30, 2005, involved the placing of three components in Ms. White’s left knee: a patellar component, a tibial component, and a femoral component.

It is Dr. Wagner’s expert opinion that Dr. Hall breached the standard of care in failing to properly align the tibial component with the bone. This opinion is based on Dr. Gregory Brown’s November 30, 2005 Operative Report, wherein Dr. Brown noted that the tibial component of Ms. White’s left total knee replacement was internally rotated approximately 20 degrees. It is Dr. Wagner’s expert opinion, based on the standard of care for orthopedic surgeons as it existed in November of 2005, that the standard of care required that there be no more than a 10-degree mis-alignment of the tibial component and that anything above a 10-degree mis-alignment of the tibial component is a breach of the standard of care.

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 case and its proceedings.)

MS. HILL IS ENTITLED TO RECOVER EXPERT WITNESS FEES SINCE MS. HILL’S RECOVERY EXCEEDED HER SECTION 998 DEMAND

On January 6, 2010 Ms. Hill made a section 998 offer to compromise in the amount of $18,000. This offer was rejected by defendants. Section 998, which reflects this state’s policy of encouraging settlements (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 270), creates a financial incentive to encourage the parties to make and accept reasonable settlement offers. (Berg v. Darden (2004) 120 Cal.App.4th 721, 726-727.) Marcey v. Romero (2007) 148 Cal.App.4th 1211, 1215-1216. It is undeniable that Ms. Hill’s 998 offer was reasonable. It was only $1,550 more than the jury verdict. Ms. Hills offer was far more reasonable than defendants’s 998 offer of $7,500.

Pursuant to CCP § 998 when determining if the defendants did not obtain a more favorable judgment than Ms. Hill’s 998 offer Ms. Hill is entitled to add to her jury verdict both pre and post offer statutorily recoverable costs. Stallman v Bell (1991) 235 Cal.App.3d 740, 748. The court in Stallman provided the following rationale:

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.)

Actionable negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was the proximate or legal cause of the injuries suffered by the plaintiff. Pamela W. v. Millson (1994) 25 Cal.App.4th 950, 956. Although a store owner is not an insurer of the safety of its patrons, the owner does owe the patrons a duty to exercise reasonable care in keeping the premises reasonably safe. Moore v. Walmart (2003) 111 Cal.App.4th 72,476. A store satisfies its duty of care by making reasonable inspections of the portions of the premises open to customers. Ibid; Adams v. Dow Hotel (1938) 25 Cal.App.2d 51.

An owner or occupier of land is not liable for injury resulting from a dangerous condition that it had no knowledge of unless the condition had existed for such a length of time that, had the owner or occupier exercised reasonable care in inspecting the premises, it would have discovered the condition in time to remedy or warn, prior to the injury. Id. Evidence that a dangerous condition existed only a short period of time before a fall is insufficient, as a matter of law, to establish that Defendant had constructive notice of the dangerous condition. Perez v. Ow, supra; Givertz v. Boy’s Market, Inc. (1949) 91 Cal.App.2d 827.

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.)

On November 2, 2008, plaintiff returned to Dr. Lee for a second opinion, as she was experiencing burning pain radiating down the lateral aspect of the lower leg from the knee to her ankle. Dr.Lee examined plaintiff and discovered full knee extension and flexion to 115 degrees with the patella tracking laterally. Dr. Lee told her she needed more time to heal after plaintiff stated she wanted to review the x-rays ordered by Dr. Hall on October 6th. Plaintiff requested a third opinion and Dr .Lee offered to refer her to Dr. Michael Davis, a physician not affiliated with Universal Medical Clinic.

Dr. Davis examined plaintiff on December 8, 2008. He noted a problem with lateral tracking of the patella. Plaintiff complained of pain in the anterolateral and lateral aspect of the left knee and lateral aspect of the left leg. He recommended studies including a standing long leg alignment from hip to ankle of both legs, merchant views of both knees, and possibly a CT scan of both hip and distal femur. It should be noted that an x-ray taken on January 1, 2005 shows the patella sitting fine and in good position.

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

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