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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 Triable Issues of Material Fact Demonstrating Defendant’s Negligence In the Care and Treatment of Plaintiff

It is proper for the Court to deny defendants’ motion as plaintiffs present triable issues of fact through expert testimony that moving defendant breached the applicable standard of care in the care and treatment of Sandy White and that defendant’s breaches contributed to Ms. White’s injuries, to a reasonable degree of medical probability.

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

Expert Testimony Establishes That Defendant Breached the Applicable Standard of Care
The inherent nature of a medical negligence action, along with the applicable standard of care and causation, is a subject matter that is beyond the competency of a layman and, therefore, may be proved only by expert testimony. Landeros v. Flood (1976) 17 Cal.App.3d 399, 131 Cal.Rptr. 69. When the matter in issue is within the knowledge of experts only and not within common knowledge, expert evidence is conclusive and cannot be disregarded. Huber, Hunt, Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 136 Cal.Rptr. 603.

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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.)

NATIONAL CONVALESCENT HOSPITAL, INC. IS ENTITLED TO THE BENEFIT OF MICRA’S C.C.P. §340.5 ONLY AS TO PLAINTIFFS’ FIRST CAUSE OF ACTION FOR NEGLIGENCE, BUT NOT THE EIGHTH CAUSE OF ACTION FOR WRONGFUL DEATH WHICH IS PREMISES ON INTENTIONAL TORT

Initially, Plaintiffs distinguish between a negligence claim as set forth in their First Cause of Action, on one hand, and a wrongful death claim as set forth in the Eighth Cause of Action, on the other. A wrongful death action is statutory. Ruttenberg v. Ruttenberg (1997) 53 Cal. App. 4 801. According to C.C.P. §377.60, A cause of action for the death of a person caused by the wrongful act orneglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf. See also Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1263 (same). In other words, wrongful death may lie for a wrongful act in the absence of negligence. e.g., a battery causes death.

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

Barris v. County of Los Angeles (1999) 20 Cal 4th 101, considered whether MICRA’s limitation on general damages (Civil Code §3333.2) applied to another statutory tort, under a provision of the federal Emergency Medical Treatment and Active Labor Act (EMTALA) requiring that patients be stabilized before discharge. Barris, at p. 115-116 explained that MICRA does not apply to intentional torts. Barris then explained in conclusion, that the court’s task in determining whether MICRA’s Civil Code §3333.2 applies to a statutory tort such as EMTALA – failure to stabilize – properly involves examining the legal theory underlying the particular claim and the nature of the conduct challenged to determine whether, under California law, it would constitute professional negligence … .

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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.)

Depositions Costs

Each party took only one non-expert deposition in accordance with CCP § 94(b). Ms. Hill did not take the deposition of defendants experts and wold have stipulated to defendants taking the depositions of plaintiff’s two experts, consistent with CCP § 95(b). Accordingly, the deposition costs would have been the same had the case been brought in limited jurisdiction.

Trial Costs: Jury and Court Reporter

Whether in limited or unlimited jurisdiction the facts of the case would have been the same and therefore the trial would have taken the same amount of time. Defendants have provided no authority that Ms. Hill would have been restricted in the number of witnesses she would have been allowed to call at trial had she brought the case in limited jurisdiction. If the jury trial would have been the same length in limited jurisdiction, then the jury fees, jury food and court reporting fees would have been the same wether the case was in limited or unlimited jurisdiction.

Service of Process Costs

Ms. Hill includes costs for service of process for serving three individuals: Sophia Lee, John Lee, and Sgt John Smith. Once again, all three of these individuals would have been served whether the case was in limited or unlimited jurisdiction. Therefore the costs associated with service of process would have been the same wether the case was in limited or unlimited jurisdiction.

https://www.moseleycollins.com/lawyer-attorney-1245027.html

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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.)

Plaintiff presented to Dr. Hall for a postoperative visit on June 7, 2008. Plaintiff complained her stitches were bugging her and that they were tearing. Dr. Hall noted the incision was clean and dry and that plaintiff could do an SLR. An immobilizer was applied. Post op on June 14, 2008, Dr. Hall saw plaintiff for a follow-up visit. Plaintiff reported that she was doing okay. Plaintiff could do a SLR. By June 28, 2008, plaintiff presented to Dr. Hall for a follow-up visit. Plaintiff complained of left knee stiffness. Dr. Hall noted plaintiff had good quadriceps and the patella was centralized. Plaintiff had 75% flexion and appeared to be healing well.

For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.
Continuing, on July 19, 2008 plaintiff complained of left knee pain. Plaintiff could perform a good SLR but displayed a 10-degree lag. He also noted plaintiff had good flexion and the patella was tracking centrally. By August 16, 2008, however, plaintiff complained of soreness and tightness in her left knee. Dr. Hall noted her quadriceps range of motion and stability were excellent. Plaintiff discussed returning to work and Dr. Hall released her to return to work and follow-up as needed.

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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.)

THIS COURT SHOULD GRANT SUMMARY JUDGMENT BECAUSE PLAINTIFF CANNOT ESTABLISH THAT DEFENDANT BREACHED ITS DUTY OF CARE AND/OR THAT DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF A DANGEROUS CONDITION.

It is well established under California law that an owner or occupier of land is not strictly liable for injuries occurring on its premises, and is not an insurer of the safety of persons on its premises. (Witkin, Summary of California Law (9th Ed.) Tort 927.) An owner of property has a duty to exercise ordinary care to maintain the property to avoid exposing others to an unreasonable risk of harm. BAJI 8.01; Rowland v. Christian (1968) 69 Cal.2d 108.

Plaintiff must establish the elements of duty, breach of that duty, causation, and damages in order to recover damages under causes of action for negligence and/or premises liability (Restatement 2nd of Torts at 281; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611,1619).

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.)

LEGAL ARGUMENT
The High Standard for Granting a Motion for Summary Judgment, Which Is A Disfavored Remedy, Is Not Met By Moving Defendant

Motions for summary judgment are comparatively disfavored and widely understood as a drastic measure which should be used with extreme caution so that it does not become a substitute for trial. WYDA Associates v. Memer (1996) 42 Cal.App.4th 1702. Summary judgment procedure, inasmuch as it denies the right of an adverse party to a trial, is drastic and “should be used with caution … ” Steingart v. Oliver (1988) 198 Cal.App.3d 406, 411 (quoting Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35-36).

Moreover, a motion for summary judgment is not the appropriate method to try issues, but merely should be used to discover, through the use of affidavits, whether there are issues to be tried and whether the parties possess evidence which demands analysis at trial. Aaitui v. Grand Properties (1994) 29 Cal.App.4th 1369. The trial court’s only function on a motion for summary judgment is issue-finding, not issue determination; the judge must determine from the evidence submitted whether there is a triable issue as to any material fact. CCP § 437c(c); see also Zavala v. Arce (1997) 58 Cal. App. 4th 915,926. If there is a single such issue, then the motion must be denied. Versa Technologies, Inc. v. Superior Court (Motsinger) (1978) 78 Cal. App. 3d 237, 240.

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.)

Sixth Cause of Action for Fraud

National promised and represented to XYZ, Novacare and others that its facility was “organized, staffed, and operated in a manner which routinely met the individualized care needs of residents,” particularly including resident patients referred by discharge planners at XYZ Community Hospital. The promise (and representation) was in a so-called “Provider Agreement” between XYZ and Novacare and National.

National also made promises in writing in the form of an annually application for renewal of the license issued by the state to National, that it would comply with all relevant state laws, especially those pertaining to patient safety and quality of care. Promises were also made in plans of correction formulated on a HCFA 2567 form. Each promise was authorized and ratified by each defendant.

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.)

Plaintiff’s Requested Statutory Costs Would Have Been The Same Had The Case Been Brought In Limited Jurisdiction

In addition to the Dorman factors, we urge this court to consider other factors as well, such as the limited costs associated with this litigation. Except for procedures specifically designed to lower litigation costs in limited civil cases, the rules of procedure generally applicable to civil actions also apply to limited civil cases. CCP §90. In other words the majority of the procedures in limited jurisdiction are the same as unlimited jurisdiction.

The general right of the prevailing party to recover their costs is established by CCP §1021, which provides that parties to actions or proceedings are entitled to reimbursement of costs as provided in the Code of Civil Procedure. Code of Civil Procedure §1032 provides for the award of costs to prevailing parties, which includes the party with a net monetary recovery. Ms. Hill is the prevailing part and the party with a net monetary recovery. Had the case been brought in limited jurisdiction she would have been entitled to all of he costs and her costs would have been virtually the same as the costs in this case. Accordingly, there is no reason for the court to award Ms. Hill anything other than all of her requested, statutory recoverable costs because she failed to recover more than $25,000.

The discretion provided in CCP § 1033 makes sense if the plaintiff incurs excessive costs that she would not have incurred had she been in limited jurisdiction. For example, if Plaintiff had taken 10 depositions at a cost of $5000 there would be reason to restrict the costs since CCP § 94(b) restricts the number of depositions allowed by the parties to only one per side.

In the current case, however, the costs would have been the same whether the case was in limited or unlimited jurisdiction. With the limited exception of the initial case filing fee, each costs requested by plaintiff would have been the same if this case was brought in limited jurisdiction.

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 March 24, 2008, plaintiff returned to Dr. Hall for a follow-up visit. Plaintiff complained of pain when trying to walk without a splint. Dr. Hall noted an extensor lag when plaintiff attempted an SLR and also noted maltracking of the patella. Clinically, her knee was locking. Dr. Hall’s impression was patellar instability with subluxation. X-rays showed slipping of the prosthetic patellar component onto the lateral side. He advised plaintiff that unless her knee showed improvement, she should undergo a patellar revision and quadriceps repair.

Plaintiff next presented for a follow-up visit on April 14, 2008, complaining that her patella had drifted laterally. Dr. Hall recommended a revision patellar arthroplasty, and discussed with plaintiff the risks and benefits of the procedure. Plaintiff elected surgery.

On May 28, 2008, Dr. Hall, with Dr. Lee assisting, performed a quadricepsplasty and quadriceps realignment of the left quadriceps. A complete lateral release was carried out from the tibia proximally on the lateral aspect, which helped to control the mild tracking and subluxing, but did not completely settle the patella in its groove.

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 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.)

LEGAL ARGUMENT
SUMMARY JUDGMENT IS PROPER WHERE THERE IS NO TRIABLE ISSUE OF MATERIAL FACT

Code of Civil Procedure section 437c (c) states that a Motion for Summary Judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The court’s power is not discretionary, but rather mandatory. The purpose for mandatory award of summary judgment is:

to help clear the court’s of an overload of repetitious suits when it appears that no factual issue exists… or that one side or the other is wholly without right. Kaiser Foundation Hospital v. Superior Court (1967) 254 Cal.App. 2d 327, citing Dryer v. Dryer (1964) 231Cal.App.2d 441, 449.

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

A motion for summary judgment is properly granted where there is no triable issue of fact and the moving party is entitled to judgment as a matter of law. Code of Civ. Proc. §437c, subd. (c). A defendant meets his burden on a motion for summary judgment or summary adjudication if that party proves that one or more elements of the cause of action cannot be established, or there is a complete defense. Code of Civ. Proc. §437c, subds. (f)(1) and (o)(l),(2).

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