Sacramento Accident Victim Fights Defendant Over Back Treatment, Part 4 of 5

(Please 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.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Paul Austin does not concede liability, and at trial he will provide evidence in support of all available affirmative defenses. California is a comparative negligence state and Ms. Smith had a duty to take reasonable care to prevent harm to herself. This is especially true on what was a day of heavy rain and where the intersection lights were not operating at a major intersection. Ms. Smith was in a comfortable zone just three blocks from her residence. Whether Ms. Smith was appropriately attentive to the road conditions is for a trier of fact to determine. Mr. Austin contends he is liable only for a reasonable comparative portion of the damages reasonably caused by the accident.

The primary legal issue in this matter is that plaintiff’s injury did not result in the need for surgery. The defendant will present evidence that surgery was unnecessary and the surgical procedures that were performed were below the applicable standard of care. Therefore, any medical conditions caused by plaintiff’s surgeries were not proximately caused by the accident.

This case involves distinct and divisible injuries. Plaintiff suffered a soft tissue injury that would have healed with conservative treatment. Instead, she sought treatment with Dr. John Lee, a neurosurgeon, whose negligent subsequent medical care served only to aggravate the plaintiff’s symptoms. As a subsequent tortfeasor, and because California is a comparative negligence state, Dr. Lee, as with any other subsequently treating negligent healthcare provider, is liable to the plaintiff for the enhanced injuries that he has caused. (See: Henry v. Superior Court (2008) 160 Cal.App.4th 440.) As such, if he is liable, the defendant is entitled to a determination by the trier of fact to an apportionment of any liability. (Id.; Civil Code § 1431.2.) CACI Jury Instruction 406 reads in pertinent part:

If you find that the negligence/fault of more than one person including name of defendant and name of plaintiff/ and name(s) or description(s) of nonparty tortfeasor(s) was a substantial factor in causing name of plaintiff’s harm, you must then decide how much responsibility each has by assigning percentages of responsibility to each person listed on the verdict form. The percentages must total 100 percent. (See Part 5 of 5.)

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

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