Personal Injury Lawyer Blog
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 medical malpractice case and its proceedings.)
A plaintiff has no evidentiary burden until defendant shows either a complete defense or that an essential element of plaintiffs claim cannot be established. Until that time, defendant has not met its burden of production, and plaintiff therefore has no burden to oppose. See CCP §437c(p)(2); Binder v. Aetna Ins. Co, (1999) 75 CA4th 832, 840; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (TRG) 10:249. As the party moving for summary judgment, (the defendant) had the burden to show that it was entitled to judgment with respect to all theories of liability asserted by (the plaintiff). Lopez v. Superior Court (Friedman RPI) (1996) 45 CA4th 705, 717.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
In a medical malpractice action, the standard of care can only be established through expert opinion testimony. Stephenson v. Kaiser Foundation Hospital (1961) 203 CA2d 631, 635. Because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of expert, expert testimony is required to prove or disprove that the defendant performed in accordance with the standard of care unless the negligence is obvious to a layperson. Johnson v. Superior Court (2006) 143 CA4th 297.
DECEDENT’S HEIRS HAVE STANDING
The first cause of action is brought by Decedent’s statutory heirs for wrongful death based upon Universal’s alleged negligence. In attacking this cause of action Universal asserts the same argument that it asserted in its unsuccessful demurrer to that cause of action in the Third Amended Complaint; that the statutory heirs lack standing to pursue a wrongful death action based on medical malpractice because Universal only owed a duty of care to the Decedent, and not to the heirs.
Universal appears hopelessly confused about the first cause of action. Despite the fact that it Is only pursued by Decedent’s statutory heirs, alleging that Universal negligently caused Decedent’s death and that they were harmed thereby, Universal somehow interprets the cause of action as if it were for professional negligence only, and not for wrongful death, in which case only the Decedent would have standing to sue. But that is not what is alleged.
Universal’s confusing argument to the effect that it did not owe a duty of care to Decedent’s heirs, if correct, would mean that tortfeasors are immune from liability for wrongful death caused by their negligence because they only owed a duty to the decedent, not his heirs and since the decedent is dead nobody can sue. The assertion is ludicrous on its face, which is why the court rejected the same argument In overruling Universal’s demurrer. That is the law of the case.
(See Part 4 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.