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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, 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 DONNA HILL’S TRIAL BRIEF

Plaintiff, Donna Hill, submits her brief on matters set for trial on March 8, 2010:

Plaintiff alleges that Defendant Stefan Black was negligent and committed battery in his medical care and treatment of her, and that such negligence and battery caused her pain, suffering loss of income, and undue expenses.

Status of the Case

Plaintiff brought this action on June 13, 2007. She was abandoned by counsel in December 2010, and therefore was unexpectedly in Pro Per.

A settlement conference (MSC) was scheduled for January 5, 2010. Plaintiff obtained interim counsel for the MSC. A few days before the MSC, said counsel suffered serious injury. The undersigned counsel, Michael White, stepped in on an emergency basis for the MSC alone.Plaintiff’s original counsel erroneously informed Plaintiff, in writing, that the MSC would be in Roseville. In fact, the MSC was scheduled in Sacramento. Upon determining the error, Mr. White phoned defendant’s counsel David Wang and was soon informed by counsel that the court would not see the parties by the time Plaintiff would arrive to Sacramento.

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 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, or Sutter.

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

Plaintiffs further attempt to allege “recklessness” by stating that Defendants knew or should have known that decedent was at risk for falls, pressure ulcers, bowel abnormalities, malnutrition and dehydration.

Knowing these things, defendants nevertheless failed to provide proper assessment and care … Defendants neglected [decedent] and did not provide necessary services, care, and equipment as required by law in the care and protection of their patient … In particular, and without limiting the generality of the foregoing, Defendants and each of them, failed to provide him with necessary medical care and custodial services, failed to protect him from health and safety hazards including mechanical falls.

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

Despite this attempt at alleging reckless neglect, Plaintiffs’ Complaint falls short, as it fails to allege specific facts to substantiate their claims.

Finally, in the second cause of action, Plaintiffs allege that Defendants knew on March 27, 2008, when decedent was discharged home, the combined efforts of Debra White and episodic visits by visiting nurses could not provide the level of care [decedent] required for his various medical conditions. Once again, Plaintiffs fail to allege specific facts to support the allegation that Defendants had the requisite knowledge.

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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, 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.)

SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION, MUST BE GRANTED AS A MATTER OF LAW WHEN THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT

The procedural standard for summary judgment is described by California Code of Civil Procedure Section 437c. The pertinent sections provide:

(a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto.

(b) The motion shall be supported by affidavits, declaration, admissions, answers to interrogatories, depositions, or in any manner which judicial notice shall or may be taken. The supporting papers shall include a separate statement letting forth plainly and concisely all material facts which the moving party contends are undisputed.

(c) The 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 judgment as a matter of law.

(d) Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated is the affidavits at declarations.California Code of Civil Procedure section 437c. (See also section 437(f) for the similar standards set forth for a motion for summary adjudication.)

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 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, or Sutter.

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

It was both legally foreseeable and plainly obvious that such advice and conduct would cause Mrs. White severe emotional distress because it was clear Mrs. White would never be able to care for her husband at home. Thus, a direct victim claim for NIED is both properly pleaded and legally tenable against defendant Wong.

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

Plaintiffs’ NIED claim also meets the requirements of a so-called “bystander” emotional distress claim. It is alleged in paragraph 53 that Mrs. White believed that the decision to discharge her husband was wrong and not in his best interests, but she acceded to the recommendation of her husband’s physician because she felt she had no choice. Thus, Mrs. White has pleaded that she experienced the wrongfulness of the defendant’s conduct and then personally witnessed the injury and damage to her husband caused by that conduct. Thus, the bystander claim has been properly pleaded.

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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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor 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.)

DEFENDANT’S CONTENTIONS

The care and treatment provided by Dr. Smith at all times complied with the applicable standard of care in the community and there was nothing that Dr. Smith did or failed to do that caused, contributed to, or was a substantial factor in any injury alleged by plaintiff. The surgeries by Dr. Smith, follow up care, recommendations and treatment were appropriate and within the standard of care. Plaintiff had pre-existing complaints including complaints of the left upper extremity due to prior surgeries. Additionally, plaintiff was totally disabled prior to the ATV accident on December 22, 2008.

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

Defendant further contends that plaintiff’s tests indicate that there is no objective cause for her symptoms. However, assuming that she does have complex regional pain syndrome, it was not caused, contributed to or aggravated by anything which Dr. Smith did or failed to do. This condition can occur with any type of trauma, including the trauma sustained by plaintiff on December 22, 2008, and it is a condition which occurs in the absence of negligence.

THIS MOVING DEFENDANT, OWEN SMITH, M.D, MET
THE APPLICABLE STANDARD OF CARE

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

To the same effect are Quinn v. State of California, 15 Cal. 3d 162, 167-69, 124 Cal. Rptr. 1 (1975) (holding that an employee who obtains a judgment in a third-party action that creates a fund from which the compensation insurer’s lien is satisfied, in whole or in part, can require the passive beneficiary to bear the fair share of the litigation costs, including attorney’s fees); Hartwig v. Zacky Farms, 2 Cal. App. 4th 1550, 1555-56, 3 Cal Rptr. 2d 828 (1992) (holding that merely retaining separate counsel or filing a complaint in intervention or a lien, with little else, does not satisfy the standard of “active participation”; there, the declaration offered by the employer’s workers’ compensation insurer’s attorney was insufficient to support a finding that the lienholder had actively participated in the case); and Kindt v. Otis Elevator Co., 32 Cal. App. 4th 452, 458-60, 38 Cal. Rptr. 2d 121 (1995) (same essential holding).(These cases were decided under section 3856(b), Cal. Lab. Code, referring to judgments rather than settlements. But situations arising under sections 3856 and 3860 must be treated alike. E.g., Kaplan v. Industrial Indem. Co., 79 Cal. App. 3d 700, 705-06, 709, 145 Cal. Rptr. 210(1978).)

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

These cases all hold that where an employer or his workers’ compensation insurer retains separate counsel, files a complaint in intervention and even undertakes a litigation task or two, that participation is nominal and the intervenor becomes a passive beneficiary of the common fund.

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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, or Sutter.

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

Plaintiffs’ Fail to Sufficiently Allege Claims of Reckless Neglect of an Elder

For purposes of the Elder Abuse Act, “recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the high degree of probability “that an injury will occur.” Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature. Sababin v. Superior Court (App. 2 Dist. 2006) 50 Cal.Rptr.3d 266, 271. Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions, but rather rises to the level of a “conscious choice of a course or action … with knowledge of the serious danger to others involved in it.” Mack v. Soung (App. 3 Dist. 2000) 95 Cal.Rptr.2d 830, 834.

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

In the case at hand, without any facts to support conduct beyond alleged mere professional negligence, Plaintiffs boldly allege: Defendants’ acts and omissions as alleged above constitute neglect, as defined in Welfare and Institutions Code § 15610.57, and were done with malice, oppression, fraud and/or recklessness within the meaning of Welfare and Institutions Code § 15657. While, at first glance, this may appear sufficient to state a claim for reckless neglect of an elder, warranting punitive damages under the Elder Abuse Act, the acts and omissions as alleged above fail to provide any specific facts to sufficiently allege that reckless neglect did in fact occur.

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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, or Sutter.

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

Plaintiff Has Properly Pleaded A Cause Of Action For Negligent Infliction Of Emotional Distress As To Defendant Wong

Debra White, as an alternative claim to the intentional infliction of emotional distress cause of action, asserts a claim for negligent infliction of emotional distress.

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

One of the bases for a “direct victim” claim for NIED is the negligent breach of a duty arising out a pre-existing relationship. Burgess v. Superior Court (1992) 2 Cal. 4th 1064 is the controlling authority on that cause of action. In that case, a mother was permitted to bring an action for NIED when her fetus was allegedly injured by negligence during delivery. The Court reasoned that there was a pre-existing relationship between the mother and the defendant physician such that a duty of ordinary care flowed from the physician to the mother.

The facts alleged in the Fifth Cause of Action allege an analogous case of pre-existing relationship.

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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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor 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 subsequently presented to Joe Ross, M.D., at the Center for Rehabilitation Medicine apparently as a referral by attorney Reginald Hill. Plaintiff reported to Dr. Ross that following the surgery with Dr. Smith she had good sensation throughout the fingers with good motion of the fingers. When Dr. Ross saw plaintiff on July 22, 2004, he noted an assessment of complex regional pain syndrome, left wrist and hand; traumatic left median and ulnar neuropathy and fracture, left distal radius with subsequent operative reduction and pinning. It was his opinion that plaintiff sustained a second injury to the left upper extremity on January 14, 2004, by an approximate 4 hour period where the left wrist was in a forced flexed position. He noted that her injury was preventing her from returning to work as a physical therapist.

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

A nerve conduction study which had been done on July 5, 2004, by Dr. Jones showed very mild delay in distal latency seen on left side . Thereafter, on October 14, 2004, Dr. Ross noted an assessment of post traumatic neuropathic pain, hypersensitivity, left wrist, hand and fingers and he again recommended that the patient follow through with a complete electrodiagnostic study of the left upper extremity.

EMG and nerve conduction studies were done on November 16, 2004, by Dr. Miles at Northern Neuro Center. Dr. Miles noted that motor and sensory nerve conduction studies revealed normal distal latencies, amplitudes and conduction velocities for left median and ulnar nerves. There was no significant side to side difference in sensory nerve study that was noted.

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

ARGUMENT

White’s Lien Must be Reduced Because Plaintiff’s Counsel Alone Successfully Prosecuted This Action.

While an employer or its workers’ compensation insurer may seek from any settlement between an injured employee and a third-party tort-feasor, reimbursement for compensation he has paid to the employee, that reimbursement is reduced by “the reasonable expenses incurred in effecting such settlement, including costs of suit, if any, together with a reasonable attorney’s fee to be paid to the employee’s attorney, for his services in securing and effecting settlement for the benefit of both the employer and the employee.” See Cal. Lab. Code, § 3860(b) and (c).

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

This principle applies to the situation where, as here, settlement is effectuated … solely through the efforts of the employee’s attorney. See Cal. Lab. Code, § 3860(c).

In Kaplan v. Industrial Indem. Co., 79 Cal. App. 3d 700, 702-03, 709, 145 Cal. Rptr. 210 (1978), the court of appeal ruled that this principle applies even where the employer or his workers’ compensation insurer has retained separate counsel as long as the settlement, which represents a common fund from which the lien is paid, is the result of the efforts of the plaintiff’s attorney.

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