Personal Injury Lawyer Blog
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.)
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Jonathan Black, M.D., is a physician who is Board certified in internal medicine, and practices adult internal medicine at National Medical Clinic and serves as the Medical Director at Community Care and Rehabilitation Center (“CCRC”). Plaintiff filed a Complaint containing one cause of action for medical negligence stemming from the care and treatment associated with a total left knee replacement surgery. As will be demonstrated, plaintiff cannot provide this Court with any competent, admissible evidence that raises a triable issue of material fact. Summary judgment is appropriate.
STATEMENT OF FACTS
On November 14, 2008, plaintiff Susan Dean underwent a total left knee replacement surgery, performed by defendant, Jim Hall, M.D. Plaintiff was discharged from National Community Hospital on November 17, 2008, and transferred to CCRC. Defendant, Jonathan Black, M.D.
(“Dr. Black”) saw the plaintiff on November 20, 2008, at CCRC. At that time Dr. Black noted that plaintiff was in no acute distress. Her knee was clean, dry, and intact. Plaintiff continued to receive physical therapy at CCRC until her discharge date of November 26, 2008.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
GENERAL AUTHORITY FOR A MOTION FOR SUMMARY JUDGMENT
California Code of Civil Procedure Section 437c provides statutory authority for a Motion for Summary Judgment. The motion for summary judgment shall be granted if all 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. (Code Civ. Proc. §437c(c).)
Once a defendant meets the burden of identifying a required element within the cause of action which cannot be established, or that a separately alleged obligation or claim has no merit, the burden shifts to the plaintiff to show a triable issue of one or more material facts with regard to that element. (Code Civ. Proc. §437c(p)(2).) A defendant is no longer required to negate an element of plaintiff’s claim. The defendant need only make an affirmative showing that plaintiff has insufficient evidence to meet the burden of proof. (Montrose Chemical Corp. v Superior Court (1993) 6 Cal.4th 287, 301 fn.4.)
When considering a motion for summary judgment, the trial court’s function is not to find the true facts of the case, but to determine whether a triable issue of fact exists. (Terry v. Atlantic Richfield Corp. (1977) 72 Cal.app.3d 962, 966.) In order to successfully defeat summary judgment, the opposing party must disclose the evidence to show that there is a genuine issue of fact to be tried. (Hatch v. Bush (1963) 215 Cal.App.2d 692.) Summary judgment is mandatory where the evidence before the court discloses not triable issue of material fact and the moving e 12 party is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield (2001) 101 Cal.App.3d 425,432.) (See Part 3 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.