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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
(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.)
ALTHOUGH THE BURDEN ON THIS MOTION SHOULD NOT SHIFT TO PLAINTIFF SINCE DEFENDANT HAS NOT MET HIS INITIAL BURDEN, IF THE COURT FINDS OTHERWISE THE MOTION MUST STILL BE DENIED AS TRIABLE ISSUES OF FACT EXIST
Although plaintiffs contend that due to defendant’s deficient motion the Court need not reach analysis of plaintiff’s respective burden under CCP§437c, even if this were the case the motion must still fail.
Expert testimony is required in medical malpractice cases to establish the standard of care required of the physician under the circumstances. Flowers v. Torrance Memorial Hospital (1994) 8 Cal 4th 992, 1001. Expert testimony is also required on the issue of causation. Jones v. Ortho Pharmaceutical Corp (1985) 163 Cal App3d 396, 402, 405.
The Declaration of Dr. Michael Lee submitted by plaintiffs provides expert opinion that defendants acted below the standard of care and caused decedent injury. This is in direct conflict with the Declaration submitted by defendant and therefore there are triable issues remaining on standard of care and causation that must be left for trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
DR. HALL’S LIABILITY UNDER DOCTRINES OF RES IPSA LOQUITUR AND “CAPTAIN OF THE SHIP”
This is a medical malpractice case where plaintiff went into surgery for a laser lead removal procedure and did not survive. This is a classic example to the type of case for which the res ipsa loquitur instructions were designed.
Res Ipsa Loquitur defined:
Black’s Law Dictionary defines res ipsa loquitur as the thing speaks for itself. Rebuttable presumption that defendant was negligent, which arises on proof that instrumentality causing injury was in defendant’s exclusive control and that the accident is one which ordinarily does not happen in the absence of negligence.
CACI 518 states, in pertinent part:
In this case, [plaintiff] may prove that [defendant]’s negligence caused his harm if he proves all of the following:
1. That [plaintiff]’s harm ordinarily would not have occurred unless someone was negligent [In deciding this issue, you must consider [only] the testimony of the expert witnesses];
2. That the harm occurred while [plaintiff] was under the care and control of [defendant]; and
3. That [plaintiff]’s voluntary actions did not cause or contribute to the event that harmed him.
Plaintiffs have presented competent expert testimony on all points necessary to support a res ipsa loquitur instruction. (See Part 9 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.