San Jose Woman Must Battle Her Surgeon In Malpractice Lawsuit, Part 8 of 8

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)


California Code of Civil Procedure Section 437c gives this court the power to grant this motion upon showing that there are no triable issues of material fact.

The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107. It is pointless to declare in the abstract that summary judgment is a disfavored remedy. Reader’s Digest Association v. Superior Court (1984) 37 Cal.3d 244, 252. On summary judgment, the moving party’s burden is more properly one of persuasion rather than of proof, since he must persuade the court there is no material fact for a reasonable trier of fact to find, and not prove any such fact to the satisfaction of the court itself as if it were sitting as the trier of fact. Molko, supra at 372-374.

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

California’s highest court clarified the law that courts must apply in ruling on motions for summary judgment, bringing this state’s law closer to its federal counterpart in order to liberalize the granting of such motions. Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855, 859 (emphasis added). The Supreme Court made clear that a defendant moving for summary judgment is no longer required to conclusively negate an element of the plaintiffs cause of action. Id. at p. 864. All the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action. Id. The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. Id. at p. 865.

To prevail at trial, plaintiff will be required to prove by a preponderance of evidence that (1) this moving defendant was negligent, (2) plaintiff was harmed, and (3) this moving defendant’s alleged negligence was a substantial factor in causing plaintiff’s injury and damages. Judicial Council of California Civil Jury Instructions [2003-2004] CACI 400, 501, 502.

This moving defendant has shown through the Declaration of Ben Lee, M.D. that he did not breach the standard of care, and that there is no causative link between any actions of this moving defendant and plaintiff’s alleged injuries.


For all the foregoing reasons, this moving defendant, respectfully submits that this motion establishes via competent expert testimony that his care and treatment of the plaintiff met the applicable standard of care as applied to hand surgeons in the northern California medical community and that no act or failure to act on his part caused or contributed to any injury and damage alleged by plaintiff. Therefore, this moving defendant respectfully submits that he is entitled to summary judgment as a matter of law.

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

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