Personal Injury Lawyer Blog
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 medical malpractice case and its proceedings.)
SUMMARY JUDGMENT SHOULD BE GRANTED WHERE THE ACTION IS WITHOUT MERIT AND PRESENTS NO TRIABLE ISSUE OF ANY MATERIAL FACT
Allowing the Court to look beyond the Complaint to determine whether the plaintiffs have any evidence to support their claim, the California Code of Civil Procedure §437c(a) provides in pertinent part as follows:
“Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit … the motion shall be granted if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
It is well-established that a motion for summary judgment will be granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1558. A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. California Code of Civil Procedure §437c(p)(2). Once the defendant’s burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724.
When the evidence submitted raises no triable issues, the Court has no discretion to deny summary judgment. The Court, in Krasley v. Superior Court (1980) 101 Cal.App.3d 425, 432, stated that entry of summary judgment is mandatory in a proper case based upon the law and where the documents disclose no triable factual issues.
A motion for summary judgment is the exclusive pre-trial procedure that allows the Court to consider evidence outside the pleadings and for the purposes of summary judgment, the material facts are those that have been raised in the pleadings. Keniston v. American National Insurance Company (1970) 31 Cal App. 3d 803. As is demonstrated in the Declaration of Clive Brown, M.D. served and filed herewith, there is no triable issue of fact with respect to any claim against defendant Peter Hill, M.D. and thus summary judgment is warranted and Dr. Hill should be dismissed.
PLAINTIFFS MUST PRESENT EXPERT TESTIMONY IN ORDER TO PROVE LIABILITY IN A CASE OF MEDICAL MALPRACTICE
The existence of medical malpractice cannot be found by the Court as a matter of law except when the conduct required in the particular setting is within the common knowledge of lay persons. Barton v. Owens (1987) 71 Cal. 3d 44. Expert testimony has been held necessary to establish a matter such as the proper and usual medical practice and treatment. Moore v. Belt (1949) 34 Cal. 2d 525. Similarly, the propriety of a particular medical treatment requires expert testimony. Pink v. Slater (1955) 31 Cal. App. 2d 281. Additionally, the plaintiff in a medical malpractice action must establish that some act or omission on the part of the defendant was a legal cause of injury suffered by the plaintiff. Frantz v. San Luis Medical Clinic (1978) 81 Cal. App. 3d 34. (See Part 5 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.