Sacramento Injury Lawyer Blog

It is worth noting that situations similar to those described in this birth injury 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.)

Plaintiffs Emma and Sabrina Smith’s Points and Authorities in Support Motion for New Trial

INTRODUCTION

As the Court is well aware, this is a medical malpractice case involving Dr. Hill's diagnosis and care of Emma Smith. The defendant in this litigation was the Universal Hospital Medical Center through their physician, Anne Hill. The case was tried before a jury of twelve and a verdict was returned on April 28, 2008. The verdict was 9 to 3 on negligence in favor of defendant, after the jury inquired about CACI 506. Judgment was entered on May 24,2008, and was served upon Plaintiff on May 31, 2010. On June 15, 2010, Plaintiff timely filed her Notice of Intention to Move for New Trial and her Points and Authorities in Support of New Trial.

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

Plaintiff contends that she was prevented from having a fair trial because of irregularities in the proceeding and errors of law, and that the evidence was insufficient to justify the verdict. Specifically, the evidence did not support the giving of CACI 506, and once given, it was error not to give CACI 533 (modified), Plaintiff's requested special jury instructions on the theory of informed consent.

Continue reading "Sacramento Family Seeks New Trial In Medical Malpractice Case, Part 1 of 10" »

It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(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.)

DR. BLACK'S MANAGEMENT OF DECEDENT'S EMERGENCY ROOM VISIT FAILED TO MEET THE STANDARD OF CARE

The moving party has the burden of establishing evidentiary facts sufficient to entitle him or her to judgment as a matter of law. CCP § 437c(c); Vesely v. Sager (1971) 5 Cal.3d 153. The opposing party has the burden to controvert issues, only when the moving party has met its burden. CCP 437c(o)(2). As set forth above, Dr. Black has not met this burden. Further, the expert opinion that Dr. Black met the standard of care avoids key facts that are undisputed. Finally, the issue of compliance with the standard of care is controverted by competent contrary opinion.

Dr. Black moves for summary judgment on the opinion of his retained expert that his care and treatment was "at all times appropriate and within the standard of care." (Decl. of Dr. Howard.) To reach this result, Dr. Howard selectively spins the evidence. Radiologist Cesar Lee, advised Dr. Black that 1) he suspected a chronic fracture of the dens (C-2), incomplete closure of the C-1, and 3) that he could not see any acute fracture. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Howard interpreted this as no more than "chronic degenerative changes without evidence of any acute injury or need for emergent intervention." (Decl. of Dr. Howard.) He does not address the fact that Dr. Black was advised that Mr. Greene had a fractured cervical vertebrae, chronic or otherwise, nor does Dr. Howard explain what the standard of care requires for this presentation.

Continue reading "Sacramento Doctor's Negligence Causes Patient's Paraplegia, Part 5 of 5" »

It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(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.)

No Undisputed Fact

Defendant's Motion for Summary adjudication is based on the assertion that no evidence supports the liability element of the malpractice claim. However, of the 14 proposed undisputed facts, the only ones even remotely material to this point (11-14) are not undisputed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant has cited no authority supporting her proposal that such disputed issues can be summarily adjudicated on the word of one of the party's retained witnesses.

No Material Fact

The court's sole function on a motion for summary Judgment/adjudication is issue finding, not issue determination. The court must determine whether there is a triable issue as to any material fact. CCP § 437c(c). A material fact, for summary judgment purposes, must relate to some claim or defense in issue under the pleadings, and it must be in some way essential; i.e. if proved it could change the outcome of the case. Pettus v. Standard Cabnit Works (1967) 249 Cal.App.2d 64.

Continue reading "Sacramento Man Suffers Permanent Paralysis Due To Malpractice, Part 4 of 5" »

It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(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.)

No Admissible Evidence

Defendants' Motion for Summary Judgment is based on the second amended complaint and a declaration. However, none of the documents is properly authenticated, on personal knowledge, or otherwise.

A motion for summary judgment/adjudication must be supported by evidence establishing the moving party's right to the relief sought. Such evidence shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. CCP § 437c(b). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Where a motion is based upon deposition testimony excerpts, the procedure is to attach copies of relevant pages of deposition transcripts to the moving party's declarations. The declarations, made on personal knowledge, serve to identify and authenticate the testimony. Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950.

Written documents, likewise, must be authenticated by declarations or other evidence establishing that the writing is what it purports to be. Evid. Code § 250, § 1401(a); O'Laskey v. Sortino (1990) 224 Cal.App.3d 241; Local Rule 9.21(e).

Continue reading "Man Injured In Sacramento Store Trip And Fall Now Paraplegic, Part 3 of 5" »

It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(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.)

STATEMENT OF FACTS
Albert Greene was injured in a fall at the Sacramento National Sporting Goods store on February 17, 2005. Thereafter, Mr. Greene received medical care and treatment from Defendants Black, Lee, Wong, and Sacramento Valley Medical Center. Mr. Greene was hospitalized for five days after which he was transferred to convalesce for three weeks of physical therapy with no more than a soft collar, and released to home.

Mr. Greene separated from his wife, Frances Greene, on March 11, 2006. Thereafter, Mr. Greene became a resident of an assisted living home in Sacramento, California with his daughter Sylvia Smith exercising a healthcare power of attorney. On April 13, 2006, Ms. Smith arranged for a mobile radiologist to conduct a head-to-toe CT scan due to his decline in mobility. Mr. Greene's three fractured cervical vertebrae were then discovered. Neurosurgeon, Dr. William White, MD, subsequently performed a full cervical laminectomy in May 2006.

Mr. Greene died on June 23, 2007.

DEFENDANT'S MOTION DOES NOT SATISFY HER BURDEN UNDER CCP § 437c

Summary Judgment is a drastic procedure which is to be used with caution to avoid becoming a substitute for the fact finding process of trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Medical Malpractice Leaves Sacramento Man Paralyzed For Life, Part 2 of 5" »

It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(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.)

Plaintiff Sylvia Smith, et al.’s Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment

INTRODUCTION

This is a trip/fall and medical malpractice action arising out of decedent Al Greene's February 2005 fall in the Sacramento National Sporting Goods store, wherein he fractured three cervical vertebrae, and the subsequent failure to treat these injuries at the Sacramento Valley Medical Center. Moving party Thomas Black, MD, is the attending emergency room physician who was advised of the possible fractures but did not respond accordingly. The fractures were not treated until more than a year later by which time Mr. Greene was a functional paraplegic. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Black now moves for summary judgment on the grounds that notwithstanding his failure to address the cervical fractures, he met the standard of care in the community and thus committed no malpractice. Plaintiffs' emergency room consultant disagrees that Dr. Black failure to address the possible cervical fractures satisfies the standard of care.

Continue reading "Sacramento Man Now Paraplegic After Trip And Fall, Part 1 of 5" »

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.)

In considering whether res ipsa loquitur applies, it is not for the trial court to ascertain whether defendant's negligence is the more likely explanation of the accident; it should merely determine whether plaintiff has produced sufficient substantial evidence to permit a jury to draw such an inference, and where reasonable men might differ on the balance of probabilities it should be left to the jury. Ghema v. Ford Motor Co. (1966) 246 Cal. App. 2d 639, 55 Cal. Rptr. 94.

Where - as here - the evidence conflicts or is subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the res ipsa loquitur rule are present. Robledo v. Los Angeles (1967) 252 Cal. App. 2d 285,60 Cal. Rptr. 328. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In considering the applicability of res ipsa loquitur, it is not for the trial court to ascertain whether a defendant's negligence is the more likely explanation of the accident; the court merely determines whether the plaintiff has produced sufficient substantial evidence to permit a jury to draw such an inference; and, where reasonable men may differ as to the balance of the probabilities, the trial judge must leave that question to the jury. Albers v. Greyhound Corp. (1970) 4 Cal. App. 3d 463, 84 Cal. Rptr. 846.

Continue reading "Sacramento Jury Will Decide If Surgical Malpractice Caused Patient's Death, Part 13 of 13" »

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.)

Moreover, in a negligence action it is not for the judge but rather the jury to determine the existence of the facts justifying the application of the doctrine of res ipsa loquitur, and an improper refusal of instructions thereon, followed by a judgment for the defendant, constitutes a denial of fair trial to plaintiff regardless of the jury's right to weigh the opposing testimony of plaintiff as against the expert evidence of defendant. Rawlings v. Harris (1968) 265 Cal. App. 2d 452, 71 Cal. Rptr. 288.

In Fraser v. Sprageue (1969) 270 Cal. App. 2d, 76 Cal. Rptr. 37, the appellate court held that the evidence was sufficient to entitle plaintiff to have the cause submitted to the jury under a conditional res ipsa loquitur instruction, where plaintiff suffered an injury to the peroneal nerve, where such injury occurred either during surgery performed by defendant or as a result of overtight bandaging by defendant following surgery. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Fraser, an expert in vascular surgery testified that he had performed at least 1,000 such operations without injury to the peroneal nerve and had never heard of such an injury resulting from like operations, where the operation was relatively commonplace rather than complex or unusual, and where, at the time of recommending surgery, defendant made no mention of risk of nerve injury.

Continue reading "Family Of Sacramento Woman Files Wrongful Death Action Based On Medical Malpractice, Part 12 of 13" »

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.)

LEGAL PRINCIPLES

Since the doctrine of res ipsa loquitur is only a rule of circumstantial evidence and, if overcome, plaintiff still has the burden of proof on the ultimate issue of negligence, general instructions given on the issues and on the burden of proof when viewed together with instructions given on res ipsa loquitur as a matter of law do not prejudicially mislead a jury by preventing it from knowing which party had the burden of proof. McFarland v. Booker (1967) 250 Cal. App. 2d 402, 58 cal. Rptr. 417.

Since a res ipsa loquitur instruction permits the jury to infer negligence from the happening of an injury alone, there must be a basis either in common experience or expert testimony that when such an injury occurs, it is more probably than not the result of negligence. McKinney v. Nash, supra, at 436. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Blackwell v. Hurst (1996) 46 Cal. App. 4th 939, 54 Cal. Rptr. 2d 209 states that use of the res ipsa loquitur doctrine is especially suited to a medical malpractice setting in which the unwitting and often unconscious or semiconscious patient is at an evidentiary disadvantage because of his or her inability to demonstrate what occurred in the hospital or surgical room setting.

Such is the case here.

Continue reading "Doctors' Medical Negligence Causes Sacramento Woman's Death, Part 11 of 13" »

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.)

3. There is no argument that Ms. Smith was under the exclusive control of defendant when the injury occurred.

At all times during the surgery when the negligence occurred, Ms. Smith was under the sole care and control of Dr. Hall. Dr. Hall was the surgeon and captain of the ship . See Fields v. Yusuf (2006)144 Cal. App. 4th 1381,51 Cal. Rptr. 3d 277, which reasoned the test for exclusive control has become one of right of control rather than actual control, and a plaintiff need not identify the particular negligent person or the particular instrumentality that cause his or her injuries. When a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendant who had any control over his or her body or instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Also, a special relationship exists between a patient and a surgeon during surgery. The patient is usually unconscious rendering him or her helpless and vulnerable; the patient often has limited understanding of the surgical procedures and no ability to control what is happening; the patient has placed complete trust and confidence in the surgeon to exercise due care.

Continue reading "Sacramento Surgeon Liable For Patient's Wrongful Death Under "Respondeat Superior" Theory, Part 10 of 13" »

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.)

2. Plaintiffs have produced testimony that the injury suffered by appellant ordinarily does not happen in the absence of negligence

Plaintiffs' expert has testified that the damage sustained by the deceased plaintiff would not ordinarily have occurred unless someone was negligent.

Plaintiffs submit that from the testimony of plaintiffs' expert (and defendant doctor himself) the outcome of Ms. Smith's surgery was unacceptable and would not have usually or ordinarily have happened. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that in the light of past experiences it can be said it was probably the result of negligence by someone and that defendant is probably the one responsible. McKinney v. Nash (1981) 120 Cal. App. 3d 428, 174 Cal. Rptr. 642.

To constitute a res ipsa loquitur situation where the question whether the accident was probably the result of negligence is not a matter of common knowledge among laymen, such as one involving the inadvertent suturing of a ureter in a hysterectomy operation, such probability must be based on expert testimony, not in any particular language, but sufficient to support an inference of negligence from the happening of the accident alone. Tomei v. Henning (1967) 67 cal. 2d 319, 62 Cal. Rptr. 9,431 P. 2d 633.

Continue reading "Sacramento Hospital Patient Died From "Safe" Procedure Due To Malpractice, Part 9 of 13" »

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.

Continue reading "Sacramento Doctors Liable For Wrongful Death Based On "Captain Of The Ship" Theory, Part 8 of 13" »