Sacramento Injury Lawyer Blog

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

The illegal provisions in this Agreement also affect its scope because they speak to the manner in which disputes will be resolved before the arbitration is called for and not after the arbitration has taken place. Therefore, this agreement is also distinguishable from the one provision severed in the Saika and Benyon cases.

Therefore, the illegal provisions in this Agreement should not be severed because to do so would allow Defendant Black (and other hospitals) to continue to insert illegal provisions in his arbitration agreements if he knows that the worst that can happen is that the illegal provisions will simply be severed. Armendariz, supra, 24 Cal. 4th at 124, fn.13. The interests of justice will not be served by allowing severance of the illegal provisions of this agreement.

REQUEST FOR ORDER EXTENDING TIME FOR RESPONSE

Under C.C.P. Section 1290.6, the time for filing a response to petition for arbitration is 10 days after service of the petition. The Court can order an extension of time to file a response upon good cause shown. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Unfortunately, when the petition was received by mail by counsel for Plaintiffs, the response was calendared under C.C.P. Section 1005 (a)(13)(b.). Accordingly, Plaintiffs calendared the response to be filed 9 court days prior to the November hearing date.

Continue reading "Sacramento Family Sues Hospital After Wrongful Death Of Their Newborn Baby, Part 10 of 10" »

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

Here, the agreement contains two illegal provisions, the unlawful unilateral provision that gives Defendant Black the right to a jury trial to collect fees from his patients, and the unlawful cost splitting provision. These two provisions are central to the purpose of the contract, not collateral to it. Therefore, these provisions cannot be severed and the contract should not be enforced. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There are two reasons for severing or restricting illegal terms. The first is to prevent parties from gaining undeserved benefit or detriment. Second, the doctrine of severance attempts to conserve a contractual relationship if to do so would not be to condone an illegal scheme. The overarching inquiry is whether the interests of justice would be served by severance. Armendariz, supra, 24 Cal. 4th 124. Here, as in Armendariz, the Agreement has more than one defect indicating a systemic effort to impose arbitration as an inferior forum that works to serve the interest of Defendant Black and gives him an advantage. Armendariz, supra, 24 Cal. 4th 124.

Additionally, the court distinguishes Armendariz, where the arbitration agreement was deemed unenforceable, from Saika v. Gold (1996) 49 Cal. App. 4th 1074 and Benyon v. Garden Grove Medical Group (1980) 100 Cal. App. 3d 698, where in both cases one-sided provisions in the physician-patient arbitration agreement were severed.

Continue reading "Unconscionable Hospital Contract Used To Stop Sacramento Family's Malpractice Lawsuit, Part 9 of 10" »

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

Allocation of Arbitration Fees

Article 3 of the Defendant Black's Physician-Patient Arbitration Agreement requires that each party pay for the cost of arbitration and the pro rata share of the arbitrator's fees. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Armendariz the employees were required to pay their pro-rata share of the expenses and fees of the arbitrator and to pay for all other expenses incurred. The Court in Armendariz states that ... it would undermine Congress's intent to prevent employees who are seeking to vindicate statutory rights from gaining access to a judicial forum and then require them to pay for the services of an arbitrator when they would never be required to pay for a judge in Court. Armendariz, supra, 24 Cal. 4th 108. The Supreme Court stated that arbitration is imposed by the employer and occurs at the employer's option. Therefore arbitration fees should be borne solely by the employer. Armendariz, supra, 24 Cal. 4th 108, citing Cole v. Burns Intern. Security Services (D.C. Cir. 1997) 105 F. 3d 1484-1485.

Arbitration fees can be upwards to $8,000.00 per day or greater. (The daily fee for many retired judges, for instance, providing services for JAMS.) If Ms. Hall, who is a mother and homemaker, and Mr. Hall, who is a construction worker, both in a similar economic position as the employees in Armendariz, must pay the prohibitive cost of arbitration, they would be substantially deterred from bringing a claim for medical negligence.

Continue reading "Newborn Dies Due To Medical Malpractice By Sacramento Doctors, Part 8 of 10" »

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

Here, Article 2 of Defendant Black's arbitration agreement begins in bold type stating: "All Claims Must Be Arbitrated." This long clause goes on to state that "... this agreement shall cover all claims or controversies whether in tort, contract, or otherwise ...."

On the other hand, the brief second clause of Article 2 states that: "Filing by physician of any action in court to collect any fee from patient shall not waive the right to compel arbitration of any malpractice claim. However, following the assertion of any claim against physician, any fee dispute, whether or not the subject of any existing court action, shall be resolved by arbitration." For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This arbitration agreement requires Ms. Hall to waive her constitutional right to a jury trial and arbitrate all her claims, even if she has a fee dispute with the physician, while on the other hand, Defendant Black is not obligated to waive his right to a jury trial for the only claim he would have against Ms. Hall, a fee dispute.

A one-sided term such as this is unconscionable because ... the doctrine of unconscionability limits the extent to which the stronger party, may, through a contract of adhesion, impose the arbitration forum on the weaker party without accepting the forum for itself. Armendariz, supra, 24 Cal. 4th 118.

Continue reading "Sacramento Physicians Demand Fee Arbitration After Woman Loses Child, Part 7 of 10" »

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

Procedural Unconscionability

Ms. Hall was pregnant and in need of an obstetrician to deliver her baby. At her first visit to Dr. Black, Ms. Hall was presented with the arbitration agreement. She was told to sign it prior to being seen.

In Armendariz, the arbitration agreement was imposed on the employees as a condition of their employment. Here, Ms. Hall was essentially in the same position as the employees in Armendariz. She was required to sign the arbitration agreement or forego receiving prenatal care and delivery from Dr. Black. She was in an oppressive take it or leave it situation. Just as the employees in Armendariz were put in the position of signing an arbitration agreement or risk being unemployed, Ms. Hall was put in the weaker position of signing the arbitration agreement or risk not finding a doctor to deliver her baby. This is classic disparity of bargaining power. The arbitration agreement is therefore a contract of adhesion and is procedurally unconscionable.

Substantive Unconscionability

Defendant Black's arbitration agreement is substantively unconscionable in two respects, lack of mutuality and the allocation of fees for arbitration. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(1) Mutuality

An arbitration agreement is substantively unconscionable if it is unfairly one-sided, requiring one party to the agreement to arbitrate their claims while the other party is not.

Continue reading "Wrongful Death Of Sacramento Newborn Due To Hospital's Malpractice, Part 6 of 10" »

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

Unconscionability

As noted above, to obtain the benefits of C.C.P. Section 1295 and avoid challenges based on being a contract of adhesion and/or unconscionable, Defendant Black was required to comply with subdivision (e) which provides: Such a contract is not a contract of adhesion, nor unconscionable nor otherwise improper, where it complies with subdivisions (a), (b), and (c) of this section. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant Black's arbitration agreement fails to comply with subdivisions (a) and (c).

The unconscionability analysis begins with determining if the contract is one of adhesion. Armendariz v. Foundation Health Psychare Services, Inc., (2000) 24 Cal.4th 113, citing Graham v. Scissor-Tail, Inc, (1981) 28 Cal. 3d 807. An adhesion contract is one in which the drafting party with superior bargaining power gives the subscribing party only the opportunity to adhere to the contract or reject it. Armendariz, supra, 24 Cal, 4th 113, citing Neal v. State Farm Ins. Cos. (1961) 188 Cal. App. 2d 690, 694. These restrictions apply to healthcare providers.

Once a contract is determined to be adhesive, then two judicial limitations are placed on its enforcement. First, the contract will not be enforced if it does not meet the reasonable expectations of the adhering party. Second, even if the reasonable expectations of the adhering party are met, the contract will not be enforced if it is unconscionable. Armendariz. supra, 24 Cal. 4th 113, citing Scissor-Tail.Inc. supra, 28 Cal 3d 807.

Continue reading "Sacramento Hospital Tries To Force Arbitration On Woman Subjected To Malpractice, Part 5 of 10" »

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

In the present case, Defendant Black's insertion of Article 2 into the arbitration agreement contradicts and undercuts the clear understanding of the consequences that patients were intended to obtain from subdivisions (a) and (c) of Section 1295. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

With regard to Section 1295 subdivision (a), both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. Yet Article 2 provides for the Filing by Physician of any action in Court to collect any fee from patient.... The addition of this Article 2 language to the agreement by Defendant Black undermines the communication of significant contractual consequences to the patient. The language muddles the clear understanding sought by the legislature with C.C.P. Section 1295, and is only inserted to provide a loophole out of arbitration for healthcare providers like Defendant Black.

With regard to subdivision(c), the arbitration agreement governs all subsequent open-book account transactions for medical services for which the contract was signed. Yet Article 2, again, undermines the communication of the significant contractual consequences to the patient. Are all subsequent open-book account transactions for medical services for which the contract was signed governed by the arbitration clause, or is there an exception for claims brought by Defendant Black to collect fees from the patient?

Continue reading "Malpractice By Sacramento Physicians Results In Ruptured Uterus, Part 4 of 10" »

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

ARGUMENT

PLAINTIFFS SHOULD NOT BE COMPELLED TO ARBITRATE THEIR CLAIMS AGAINST DR. Black BECAUSE THE PHYSICIAN-PATIENT ARBITRATION AGREEMENT FAILS TO CONFORM WITH C.C.P. SECTION 1295. FURTHER, THE AGREEMENT IS A CONTRACT OF ADHESION AND IS UNCONSCIONABLE

Failure to Conform with C.C.P. Section 1295

California Code of Civil Procedure Section 1295 provides in pertinent part:

(a) Any contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider shall have such provision as the first article of the contract and shall be expressed in the following language: It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(b) Immediately before the signature line provided for the individual contracting for the medical services must appear the following in at least 10-point bold red type:

NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE 1 OF THIS CONTRACT.

Continue reading "Medical Negligence By Sacramento Doctors Leads To Child's Death, Part 3 of 10" »

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

The Physician-Patient Arbitration Agreement prepared by Defendant Black was signed by Ms. Hall in Italian, her primary language, on February 27, 2006, almost two-and-a-half years before the medical treatment in question.

Defendant Black attempted to comply with California Code of Civil Procedure 1295 (a), (b) and (c) to make the agreement enforceable as a Section 1295 medical malpractice arbitration agreement. However this effort was undercut by Defendant Black's insertion of Article 2 into the arbitration agreement.

Article 2 of the arbitration agreement begins in bold type stating: All Claims Must Be Arbitrated. The clause goes on to state that "... this agreement shall cover all claims or controversies whether in tort, contract, or otherwise...." For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The second clause of Article 2 states that:

Filing by Physician of any action in Court to collect any fee from patient shall not waive the right to compel arbitration of any malpractice claim. However, following the assertion of any claim against Physician, any fee dispute, whether or not the subject of any existing Court action, shall be resolved by arbitration.

As set forth below, Plaintiffs contend that the insertion of Article 2 undermines and invalidates the application of C.C.P. 1295 to the arbitration agreement.

Continue reading "Newborn Child's Death Leads To Sacramento Malpractice Suit, Part 2 of 10" »

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

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant Ken Black, M.D.'s Petition to Compel Binding Arbitration and to Dismiss Defendant Ken Black, M.D., Without Prejudice

INTRODUCTION

Defendant Ken Black, M.D. seeks to compel binding arbitration against plaintiffs based on a Physician-Patient Arbitration Agreement signed by plaintiff Heidi Hall. Because Defendant Black's arbitration agreement fails to comply with the requirements of Code of Civil Procedure Section 1295, Defendant Black's Petition to Compel Arbitration should be denied. Further, because the agreement fails to comply with the requirements of Code of Civil Procedure Section 1295, the agreement is also subject to challenge on the grounds of being a contract of adhesion and unconscionable. For the reasons set forth below, Plaintiffs respectfully request that the Court deny Defendant Black's petition to compel arbitration. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

BACKGROUND
This medical negligence action brought by the Plaintiffs arises from negligence which occurred during Ms. Hall's labor and obstetrical delivery at Defendant National Hospital in June of 2008. The delivering doctor was Defendant Ken Black, M.D. Plaintiff Heidi Hall's baby died during delivery and Ms. Hall suffered serious, life threatening injuries from delay of diagnosis of a ruptured uterus.

Continue reading "Sacramento Family Sues For Medical Malpractice, Part 1 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Plaintiffs' Trial Brief on Substantial Contributing Factor; There is No Apportionment of Causation (Espinosa)MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical negligence action wherein the minor Plaintiff, KYLIE SMITH, suffered severe birth injuries. There will be expert testimony on the issue of causation. The defense may argue that the Plaintiffs must show by a reasonable medical probability that a defendant caused the injuries by a margin of 51%. The defense may argue that it can ask the expert to apportion the injury between factors that caused the injury. Then because the expert won't do that, the defense then claims there is no testimony as to a reasonable medical probability. This is not the current state of the law in California.

Plaintiffs are not required to quantify the percentage on causation. Plaintiffs experts need only testify whether the events were a substantial factor (BAJI No. 3.76). The inability to pin down the exact extent to which defendants' conduct contributed to the outcome is immaterial for the purposes of causation. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1317-1318).) [I]t was not necessary that plaintiff prove any particular apportionment as was required by the trial court. (Id. at p. 1321.)

Continue reading "Roseville Girl Suffers Birth Injuries, Part 1 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

PLAINTIFFS' EXPERTS ARE REQUIRED TO TESTIFY ONLY AS TO WHETHER THE CAUSATION WAS A SUBSTANTIAL FACTOR - AND THEY ARE NOT REQUIRED TO QUANTIFY THE PERCENTAGE OF INJURY

Plaintiffs' experts are required only to testify whether a cause of injury is a substantial factor and this has long been the rule in California: The law defines cause in its own particular way. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. (BAJI No. 3.76).

And as the USE NOTE states in BAJI, [t]his instruction, and the Comment thereto, were approved in Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314 .... (BAJI 3.76 (1997 Supp.).) This situation is almost directly on point with Espinosa. In the Espinosa case, the minor plaintiff suffered from a brain injury which had three possible contributory causes, one of which was clearly not due to the defendants' negligence.

During the presentation of the plaintiffs' case at trial, the plaintiff's expert on causation testified that there were three time frames in terms of the factors that are involved in causing this child's condition, chronic, sub-acute, and acute. (Emphasis in original.) (Id. at p. 1311.) The expert also testified that he could not quantify the extent of the interrelationship between these three time frames as a cause of plaintiff's injury. After the conclusion of plaintiffs' evidence, the Court granted a non-suit because the plaintiff had not sufficiently established the element of causation between the defendants' acts and Plaintiff's brain damage.

Continue reading "Medical Malpractice Leaves Sacramento-area Girl Injured, Part 2 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

The Espinosa court also held that having demonstrated the substantial factors in causing plaintiff's brain damage, It was not necessary that plaintiff prove any particular apportionment as was required by the trial court. (Espinosa, supra. 31 Cal.App.4th.at p. 1321.)

The underlying facts of the Espinosa case are similar to the present action. Both involve indivisible injuries which were alleged to have been caused by the defendants in relation to the events surrounding the birth of the Plaintiff. Both involve experts who will not apportion the degree of damage between these points in the medical time line.

By asserting that the Plaintiffs' expert must quantify and give percentages of injury at each stage, the hospital is misstating the law and trying to manufacture a causation issue which does not exist.

The Judicial Council Task Force on Jury Instructions has published jury instructions on the issue of causation which incorporate Espinosa, Instruction 340 provides as follows:
A substantial factor is a factor that a reasonable person would consider to be a cause of the harm but is more than a trivial factor in causing it. (Jud. Council Task Force on Jury Inst. No. 340, at p. 93.)

Continue reading "Negligent Sacramento Physicians Cause Girl's Birth Injury, Part 3 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Consequently, Plaintiff submit Judicial Council jury instructions Numbers 340 and 341 on the issue of causation. The above instructions are in accord with BAJI: There may be more than one cause of an injury. When [[negligent] [or] [wrongful] conduct of two or more persons] [or [[negligent] [or] [wrongful] conduct and a defective product]] contribute[s] concurrently as [a] cause[s] of an injury, [the conduct of] each is a cause of the injury regardless of the extent to which such contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. [It is no defense that the [negligent] [wrongful] conduct of a person not joined as a party was also a cause of the injury.] (BAJI No. 3.77.)

And the Second District Court of Appeal has the following language on the use of BAJI No. 3.77: One purpose of BAJI 3.77 is to explain to the jury that plaintiff need not prove that the defendant's negligence was the sole cause of plaintiff's injury in order to recover. Rather, it is sufficient that defendant's negligence is a legal cause of an injury, even though it operated in combination with other causes, whether tortious or non-tortious. (Logacz v. Limansky (2d Dist. 1999) 71 Cal.App.4th 1149, 1158.)

Continue reading "Roseville Family Files Suit For Child's Traumatic Brain Injury, Part 4 of 4" »

California Hospitals have to start cleaning up their act, now that they are being reported for 'adverse events'. From August 2007 to May 2008 California Hospitals have had 41 different situations where doctors preformed surgery on the wrong body part or the wrong patient. They also discovered that foreign objects were left in a surgical patient 145 different times.

According to medicalmalpractice.com:

Fewer than one-half of 1% of the nation’s doctors face any serious state sanctions each year. 2,696 total serious disciplinary actions a year, the number state medical boards took in 1999, is a pittance compared to the volume of injury and death of patients caused by negligence of doctors. A recent study by the Institute of Medicine of the National Academy of Sciences estimated that as many as 98,000 patients may be killed each year in hospitals alone as a result of medical errors. Earlier studies also found that this was a serious national problem.

These "adverse events," are among the 1,002 cases of serious medical harm to patients disclosed by hospitals statewide, according to statistics compiled by the California Department of Public Health. Under a new state law, hospitals must report to health officials all substantial injuries to their patients.

Many people suffer from Medical Malpractice, whether it be minor or major. If you or a loved one have been a victim of Medical Malpractice you have the right to retain an experienced Attorney. We believe it is very important that you find a personal injury lawyer to fight for the rights you have as a victim.

Moseley Collins is a Sacramento personal injury attorney, specializing in major injury cases, including medical malpractice.

Heart disease is the number one killer of Americans today. In the United States, one-fourth of all Americans have heart disease, accounting for about 64 million people. In our home of Sacramento, California, about 450,000 people suffer from heart disease. Each year, about 7 million people will go to the hospital complaining of symptoms associated with heart attack. Each minute, one person will die from a heart attack. Every 20 seconds, one person suffers from a heart attack.

These numbers are truly staggering. Heart disease and heart attacks are a huge concern for the United States. One of the most vital things for a person to do is go to the hospital immediately when showing symptoms of a heart attack. Some common symptoms of a heart attack are: unusual shortness of breath, chest pain (tightness, squeezing, pressure), nausea and vomiting, cold sweats, and pain in other upper areas of the body.

Heart attacks are one of the top five misdiagnosed diseases in terms of dollar awards. Misdiagnosis of heart attacks can often happen in atypical circumstances. The person may not have the most common signs of heart attack, such as severe chest pain, or they may not fit the typical mold a heart attack victim, for example a younger individual. Because the outward signs do not show through, some doctors may forgo the necessary tests and procedures.

When a doctor or other medical professional misdiagnoses a heart attack, the results can be very severe and detrimental, causing life-long injury, paralysis, or even death. If you or a loved one have suffered because of a misdiagnosed heart attack, please call me at the Law Offices of Moseley Collins. I will go over your legal rights and let you know your options.

Take care all…

To read more about misdiagnosis of heart attacks, please click here and here.

I read an article today about a woman not far from our Sacramento home in Modesto, CA who underwent a triple bypass surgery. Not to make the paining surgery any easier, upon waking, the woman discovered a serious accident; the surgeon had conducted the operation using a different patient's angiogram films!

Startling, shocking and unusual? Startling and shocking, yes, especially to the nature of the surgery. But unusual may not be the appropriate word to use. Hospital mistakes in Sacramento and California are actually more common than you think. As the article states:

"The Institute for Healthcare Improvement, which has done leading research on medical mistakes, estimates up to 98,000 people a year die from medical errors that occur in hospitals, more than the annual deaths from auto accidents, breast cancer or AIDS. Many more patients are harmed."

These numbers are staggering and frightening to see.

So what happened to the Modesto woman? After being reassured she would be fine, the mistaken patient began to have symptoms of heart disease. After seeking the advice of another doctor, a second heart surgery was in order. As expected, the woman sought legal help for the recovery of damages and is waiting for the case to go to trial.

If you are ever injured through the negligence of a hospital or doctor, do not hesitate to get legal help and advice immediately. It is of dire importance that you know the responsibility owed by the hospital as well as your rights as a patient. At the Law Offices of Moseley Collins we hate to see anyone go through so much pain and anguish. If you have been hurt and need help, we are always here to assist you. Please never hesitate to call.

Have a beautiful and safe day...

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