Sacramento Injury Lawyer Blog

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

In the instant matter, plaintiff cannot sustain this burden of proof. The actions of Dr. Black, were not the cause of plaintiff's claimed injury and damages. The Declaration of Donald Smith, M.D. provides substantial expert evidence that Dr. Black's actions were not causally connected to plaintiff's alleged injuries. The second required element to sustain a cause of action for medical negligence cannot be proven. As a matter of law, the care and treatment rendered by Dr. Black, was not below the standard of care, nor was defendant's care and treatment the cause of plaintiff's claimed injury and damages, and summary judgment must be granted.

In A Medical Malpractice Action, The Party Presenting Uncontradicted Expert Testimony Must Prevail

Where a defendant's expert testimony is uncontradicted, there is no triable issue of fact for the jury to consider, and the defendant must prevail as a matter of law. (Willard v. Hagenmeister, (1981) 121 Cal.App.3d 406, 412.) The court in Willard described the preemptive effect of expert testimony in a malpractice action:

"Expert evidence in a malpractice suit is conclusive as to the proof for the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony." (Id.)

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

Continue reading "Sacramento Physician's Post-Op Surgical Care Results In Malpractice, Part 4 of 4" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

PLAINTIFF CANNOT PROVIDE EVIDENCE TO RAISE A TRIABLE ISSUE OF MATERIAL FACT AS TO THE CAUSE OF ACTION FOR MEDICAL NEGLIGENCE

In order to prevail on a cause of action for medical negligence, a plaintiff must prove that the defendant was negligent by acting below the applicable standard of care, and that this negligence was a cause of plaintiff's claimed injuries and damages. If the plaintiff cannot prove both of these elements, she cannot maintain a cause of action for medical negligence.
As will be demonstrated, Dr. Black, acted within the applicable standard of care and his actions did not cause nor contribute to plaintiff's claimed injuries and damages. Should this Court grant Summary Judgment on either or both grounds, plaintiff's cause of action must fail.

The Issues Of Medical Negligence And Causation Can Only Be Determined By Expert Testimony

In a medical malpractice action, the plaintiff must prove two things in order to prevail. The plaintiff must first prove that the defendant's actions fell below the applicable standard of triable issue of material fact as to the standard of care rendered by defendants, Summary Judgment must be granted in Dr. Black's favor.

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

Continue reading "Sacramento Healthcare Facility Sued For Medical Malpractice, Part 3 of 4" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Jonathan Black, M.D., is a physician who is Board certified in internal medicine, and practices adult internal medicine at National Medical Clinic and serves as the Medical Director at Community Care and Rehabilitation Center ("CCRC"). Plaintiff filed a Complaint containing one cause of action for medical negligence stemming from the care and treatment associated with a total left knee replacement surgery. As will be demonstrated, plaintiff cannot provide this Court with any competent, admissible evidence that raises a triable issue of material fact. Summary judgment is appropriate.

STATEMENT OF FACTS

On November 14, 2008, plaintiff Susan Dean underwent a total left knee replacement surgery, performed by defendant, Jim Hall, M.D. Plaintiff was discharged from National Community Hospital on November 17, 2008, and transferred to CCRC. Defendant, Jonathan Black, M.D.
("Dr. Black") saw the plaintiff on November 20, 2008, at CCRC. At that time Dr. Black noted that plaintiff was in no acute distress. Her knee was clean, dry, and intact. Plaintiff continued to receive physical therapy at CCRC until her discharge date of November 26, 2008.

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

Continue reading "Post-Op Complications To Knee Replacement Surgery Lead To Sacramento Medical Malpractice Lawsuit, Part 2 of 4" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Defendant Jonathan Black, M.D.'s Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

Defendant, Jonathan Black, M.D., will move this Court for an Order granting Summary Judgment in his favor and against Plaintiff, Susan Dean.

This Motion is made pursuant to Code of Civil Procedure § 437c on the grounds that the care and treatment provided by defendant, Jonathan Black, M.D., at all times complied with the applicable standard of care in the community and that the care and treatment was not causally related to the damages claimed by plaintiff. As such, there are no triable issues of material fact and defendant, Jonathan Black, M.D., is entitled to summary judgment as a matter of law.

This Motion is based on this Notice; the following Memorandum of Points and Authorities; the Separate Statement of Undisputed Material Facts and Supporting Evidence; and on such oral and documentary evidence as may be presented at the hearing on this Motion.

WHEREFORE, defendant, Jonathan Black, M.D., prays this Motion be granted and that judgment be entered in his favor against plaintiff plus costs, as taxed. (See Part 2 of 4.)

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

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

The standard of requiring proof within a reasonable medical probability for proximate cause has been repeatedly upheld. See Alef, v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216; Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 704; Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603; Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498. Plaintiff cannot recover unless it can be shown that the injuries were, more probably that not, caused by a negligent act or omission of the defendant, and this must be established by testimony from a competent medical expert.

The accompanying declaration of James Chin demonstrates his competency to opine as a board certified surgeon expert as well as his opinion to a reasonable medical probability that no act or omission to act caused by moving defendant caused or contributed to David White' death. Dr. Chin has opined to a reasonable medical probability, that The CMC’s attending surgeons and Dr. Daniel Black did not cause or contribute to David White's death.

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

Continue reading "Sacramento Physicians Fall Below Standard Of Care In Wrongful Death Lawsuit, Part 10 of 10" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

NO ACT OR OMISSION OF A DUTY TO ACT BY DEFENDANT CAUSED OR CONTRIBUTED TO THE DEATH OF DAVID WHITE

The standard of proof for causation in a medical malpractice action requires that the plaintiff prove that the defendant's negligence was a substantial factor in bringing about the injury or harm. Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052-53; BAJI No. 3.76 (1994).
However, a standard of reasonable medical probability was applied in Morgenroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d 521:

"Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of any intervening cause .... We consider the better rule to be that in order to comport with the standard of proof ofproximate cause, plaintiff in a medical malpractice case must prove the defendant's negligence, in probability, proximately caused the death. The authorities in this state are in accord that in a malpractice case, a mere possibility alone is not sufficient ..." Morgenroth, supra, at 533.

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

Continue reading "Sacramento Doctors Commit Malpractice At Hospital, Part 9 of 10" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

The accompanying declaration of James Chin, M.D., demonstrates his competency to opine as a board certified surgeon. James Chin, M.D., has submitted his declaration in support of moving defendants. Dr. Chin has opined that Dr. Daniel Black and the attending surgeons from The CMC complied with the standard of care in their intervention, care and treatment of David White. The surgical repair of the stab wound to the neck and the subsequent surgery to control bleeding in the neck area was performed within the standard of care. The fact that a second surgery to control bleeding was performed is not below the standard of care given Mr. White injury.

The order for placement of the Foley catheter before surgery and after surgery complied with the standard of care as it allowed the physicians to monitor fluid intake and output in a patient who was undergoing alcohol withdrawal. Typically Foley catheters are not inserted by surgeons unless there is difficulty with placement. The surgeons do not monitor the status of Foley catheters unless they are notified of problems relating to the Foley catheter such as placement or function. David White's Foley catheters continued to function properly noting normal looking urine and normal amounts of urine the green discharge from the penis and sediment noted in the urine on January 2, 2009. When the nurses noted these changes, the physician was immediately notified. The physician appropriately responded by placing a suprapubic catheter inserted through the pelvis to allow drainage of the urine.

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

Continue reading "Negligent Nursing Staff Results In Malpractice At Sacramento Hospital, Part 8 of 10" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

The physicians order for placement of a Foley catheter before surgery and after surgery complied with the standard of care as it allowed the physicians to monitor fluid intake and output in a patient who was undergoing alcohol withdrawal. Typically, Foley catheters (tubing inserted through the urinary opening of the penis with urine collected into a collection apparatus) are not inserted by surgeons unless there is difficulty with placement. Surgeons do not monitor the status of Foley catheters unless notified of problems. There was no documentation of any difficulty with placement or monitoring of the Foley catheters used in this case until January 2, 2009. Up until January 2, 2009, the facts show that the Foley catheter continued to function properly noting normal looking urine and normal amounts of urine until the green discharge from the penis was noted on January 2, 2009.

When the nurses noted green discharge the physician appropriately responded by placing a suprapubic catheter inserted through the pelvic area to allow drainage of the urine. Treatment with multiple antibiotics including Vancomycin, Zosyn, Levaquin, and Fluconazole were started appropriately in an effort to treat the infection.

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

Continue reading "Catheter Infection Results In Wrongful Death At Sacramento Hospital, Part 7 of 10" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

THE CARE AND TREATMENT RENDERED BY DEFENDANT CMC AND DR. DANIEL BLACK COMPLIED WITH THE APPLICABLE STANDARD OF CARE

Plaintiff's cause of action sounds in professional negligence based upon allegations of medical malpractice. For a prima facie case of medical malpractice, the plaintiff must establish duty, standard of care, breach of that standard, causation, and damages. Bucquet v. Livingston (1976) 57 Cal.App.3d 914, 920-921. As a general rule, in actions based upon medical malpractice, the applicable standard of care is a matter peculiarly within the knowledge of experts ... It presents the basic issue in a malpractice action and can only be proven by their testimony, barring the extremely rare case where the required conduct involved obvious facts within the common knowledge of the layman. Landeros v. Flood (1976) 17 Cal.3d 399, 410.

In medical malpractice actions the standard of care and breach of that standard must be established by the testimony of medical experts. Lawless v. Calaway (1944) 24 Cal.2d 81, 86; Simons v. West Covina Medical Clinic *1989) 212 Cal.App.3d 696, 702. When on summary judgment, a defendant submits the declaration of a medical expert establishing that his care and treatment complied with applicable standards of care, he is entitled to summary judgment absent conflicting expert testimony. Monro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985. In the present case, the care and treatment of plaintiff is not an issue within the knowledge of layperson. Expert testimony is therefore necessary to establish the applicable standard of care.

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

Continue reading "Sacramento Family Sues For Wrongul Death Against Surgeon, Part 6 of 10" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

The summary judgment procedure protects defendants from spurious or meritless complaints and expedites the administration of justice by eliminating unnecessary trials. McCreery v. Eli Lilly and Company (1978) 87 Cal. App. 3d 77, 81; DeLeon v. Commercial Manufacturing and Supply Company (1983) 148 Cal.App. 3d 336, 342.

To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the "action has no merit or that there is no defense" thereto. Code of Civil Procedure section 437 (c) (a). A defendant moving for summary judgment meets this burden by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to the action. Code of Civil Procedure section 437 c (o) (2); Addy v. Bliss & Glennon (1996) 44 Cal. App. 4th, 205. Once the defendant makes his showing, the burden shifts to the plaintiff to show a triable issue of material fact exists as to that cause of action or defense.

An expert declaration must demonstrate the basis for the opinion; a conclusory statement is insufficient to create a triable issue of fact. Kelley v. Trunk (1998) 66 Cal.4th 519, 524-525, 78 Cal.Rptr.2d 122.

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

Continue reading "Seriously Ill Sacramento Man Suffers Wrongful Death In Hospital, Part 5 of 10" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

LEGAL ARGUMENT

SUMMARY JUDGMENT IS PROPER WHEN THERE IS NO TRIABLE ISSUE OF MATERIAL FACT

It is well established that the purpose of the summary judgment procedure is to "penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues." Vanderbilt Growth Fund, Inc. v. Superior Court (1980) 105 Cal.App.3d 628, 637. Therefore, it is proper to grant a motion for summary judgment if there is no triable issue as to any material fact or if the action has no merit.

California Code of Civil Procedure § 437c provides, in pertinent part, as follows:

(a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding ...(c) The motion for summary judgment shall be granted if all papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... (o) A cause of action has no merit if either of the following exists:(1) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded ... (p) For purposes of motions for summary judgment and summary adjudication ...

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

Continue reading "Triable Issues Remain In Sacramento Medical Malpractice Case, Part 4 of 10" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

On December 28, 2008, Mr. White continued to be severely agitated and hallucinating. He required medications such as Ativan, Haldol, and Versed to control his alcohol withdrawal symptoms. He was restrained and a sitter was assigned to sit at his bedside to prevent him from climbing out of bed and pulling at his tubing. A Foley catheter was reinserted per physician's order as Mr. White continued to pull the condom catheter out. The Foley catheter was draining well after placement. Mr. White white blood cell count on this date was 7000, which is within normal range.

On December 29, 2008, Mr. White continued to hallucinate and tried to get out of bed. The Foley catheter on this date showed it was patent and draining clear yellow urine. Mr. White white blood cell count was 8100, within normal range. On December 30, 2008, the Foley catheter was draining clear yellow urine. The urine out put on this date was 1300 cc. Mr. White was still agitated in spite of being medicated with Ativan and Haldol. His white blood cell count was 13,200.

On December 31, 2008, the Foley catheter was draining clear yellow urine. The urine output on this date was 925 cc. On January 1, 2009, Mr. White’s temperature was noted to be 103.2. His white blood cell count was elevated above normal at 18,500. Dr. Nguyen performed an aspiration of a hematoma on Mr. White’s neck to try to decipher the source of infection. This area was ruled out as a source of the infection.

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

Continue reading "Surgical Malpractice Lawsuit Filed By Sacramento Family, Part 3 of 10" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

On December 23, 2008, a CT study revealed bleeding around the stab wound site. Mr. White was taken back to surgery for ligation and cauterization of the bleeding area. There were no complications. Mr. White was extubated on December 23, 2008, without difficulty. On December 23, 2008, Mr. White's Foley catheter was patent with almost colorless urine. His urine output total for December 23, 2008, was approximately 1771 cc. Mr. White's Foley catheter was patent and draining pale urine. His urine output for December 24, 2008, was approximately 1500 cc.

On December 25, 2008, Mr. White was not aware of his surroundings and having hallucinations due to alcohol withdrawal. He was maintained on ETOH withdrawal protocol. Mr. White had an elevated temperature of 102. Pan-cultures including blood, urine, and sputum were obtained in order to determine the source of the temperature elevation. On this same date, the Foley catheter was draining clear amber urine with a total urine output of approximately 1880 cc.

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

Continue reading "Hospital Infection Causes Wrongful Death Of Sacramento Man, Part 2 of 10" »

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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Memorandum of Points and Authorities in Support of Defendant CMC's Motion for Summary Judgment

INTRODUCTION

This is an alleged wrongful death case surrounding the care and treatment rendered by defendant to plaintiff's decedent David White, plaintiff asserts defendant was negligent in the post surgical management of plaintiff's decedent leading to death caused by a urethra infection due to a misplaced Foley catheter. Moving defendant, The CMC, submits it motion for summary judgment supported by defendant's expert, surgeon Dr James Chin, to the Court seeking judgment in its favor and against plaintiff on the grounds that there is no triable issue of material fact in that moving defendant did not breach the standard of care and did not cause or contribute to David White's death.

STATEMENT OF FACTS

On December 22, 2008, decedent David White, age 44 years, was brought by ambulance to County Medical Center with a stab wound to the left lateral neck. He was under the influence of alcohol. Mr. White was evaluated by trauma surgeon Dr. Daniel Black. Mr. White’s vital signs appeared stable with the pressure of 132/82, pulse rate of 110, respiratory rate of 24 with pulse ox of 100%. His blood alcohol level was 0.438, well above the legal limits.

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

Continue reading "Sacramento Man Files Medical Malpractice Suit Against Hospital, Part 1 of 10" »

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.)

UNIVERSAL'S NEGLIGENCE WAS A DIRECT CAUSE OF DECEDENT'S DEATH

And last, Universal next asserts that its conduct was not a cause of Decedent's death according to the declaration of its expert. However, Universal's expert does provide any reasoning for this opinion. The declaration instead simply states, without explanation, that nothing the nurses did or failed to do was a substantial factor in the death of decedent. Klein Decl. 10:18-20. It is also noteworthy that this statement makes no mention of the wrongdoing of Universal's CEO, who is the focus of Plaintiffs' claim against Universal.

In any even, the opinion of Universal's expert on causation is contradicted by that of Plaintiffs' expert, Dr. White. As he explains, Universal's breaches of the standard of care resulted in unnecessary delay in getting Decedent to a medical center where he could be properly treated. This delay proved fatal. Had it complied with the standard of care, in Dr. White's opinion Decedent would not have died.

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

Continue reading "Failure To Transfer Patient Leads To Wrongful Death Of Sacramento Man, Part 5 of 5" »

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.)

UNIVERSAL WAS NEGLIGENT

Turning to the merits of the first cause of action, Universal asserts that it complied with the standard of care in its care and treatment of Decedent, and submits a declaration from its expect to that effect. In response, Plaintiffs submit a declaration from their expert, Steven White, M.D., in which he disagrees with Universal's expert and opines that the standard of care was not met. Specifically, according to Dr. White, Universal Hospital fell below the standard of care on both August 10 and August 11, 2008.

In his declaration, Dr. White notes the testimony of Dr. Lee (which Universal's expert ignores entirely) indicating that he spoke with the hospital CEO, Paul Smith, on August 10, 2008, informing him that Decedent had necrotizing fasciitis and recommending his urgent transfer to a major medial center in order to receive appropriate care, and that in response Dr. Lee was told to "mind his own business." These facts are ignored in the declaration of Universal's expert. According to Dr. White, this conduct on the part of the hospital CEO is below the standard of care. The standard of care requires the hospital to act reasonably in protecting the health and safety of its patients. This standard was not met.

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

Continue reading "Medical Malpractice By Sacramento Doctors Causes Patient's Wrongful Death, Part 4 of 5" »

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.

Continue reading "Sacramento Family Files Medical Malpractice Action On Behalf Of Deceased Loved One, Part 3 of 5" »

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.)

APPLICABLE LAW

In ruling on a motion for summary judgment or summary adjudication, the court must consider all of the evidence "and all of the inferences" reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party. Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 843. The courts sole function on a motion for summary judgment is issue-finding ... not issue-determination. The judge must simply determine from the evidence submitted whether there is a "triable issue as to any material fact." CCP § 437c(c); see Zavala v. Arce (1997) 58 CA4th 915, 926; Binder v. Aetna Life Ins. Co. (1999) 75 CA4th 832, 839.

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

There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Aguilar v. Atlantic Richfield Co., supra, 25 C4th at 850. If there is a single such issue, the motion must be denied. Versa Technologies, Inc v. Sup.Ct. (Motsinger) (1978) 78 CA3d 237,240.

Continue reading "Medical Malpractice By Sacramento Hospital Results In Wrongful Death, Part 2 of 5" »

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.)

Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendant Universal Hospitals' Motion for Summary Adjudication

INTRODUCTION

Defendant Universal Hospitals, Inc., ("Universal"), brings this motion for summary adjudication of the First Cause of Action in Plaintiffs' Third Amended Complaint for negligence. It asserts three grounds: that Decedent David Hall, Jr.'s statutory heirs lack standing, that there was no negligence, and that Universal's conduct was not a cause of Decedent's death. The motion includes a voluminous recitation of certain medical records taken virtually verbatim from the recitation of the records in its expert's declaration, none of which are material facts for summary judgment purposes. Tellingly, the motion ignores entirely the facts upon which liability is sought: the conduct of Universal's Chief Executive Officer in initially refusing to transfer Decedent to another hospital where he could receive proper care for his life-threatening condition, and subsequently authorizing the hospital staff to lie about Decedent's condition in order to get him transferred. This is the conduct that is the focus of the declaration Plaintiffs submit of their expert in opposition to the motion.

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

Continue reading "Sacramento Man's Wrongful Death Due To Hospital's Malpractice, Part 1 of 5" »

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.)

PLAINTIFF'S NEW TRIAL MOTION cont.

Conversely, in Smith it is undisputed that although there are two potential alternative methods for diagnosing DRD, the only method contemplated by the Defendant Dr. Hill was a trial dose of L-dopa.

In Maher v. Saad (2000) 82 Cal.App.4th 1317, it was held to be error to give this instruction when there was no evidence that the particular procedure actually utilized was a recognized and approved method of diagnosis or treatment for the patient's condition. Maher v. Saad, supra, 82 Cal.App.4th at pp. 1318-1319, 1327. In Maher, Plaintiff's argued that the so-called T incision used by the surgeon was below the standard of care. Although the Defendant's expert did not say its use violated the standard of care, no one testified in that situation that it was a recognized or approved method of treatment. The court, over objection, gave jury instruction BAJI 6.03, but granted a new trial when the jury found no negligence.

The trial court and the appellate court held that Jury BAJI 6.03 prevented plaintiff's from receiving a fair trial on their negligence claim. (Maher v. Saad, supra, 82 Cal.App.4th at p. 1325.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Girl's Mother Sought Multiple Opinions In Birth Injury Case, Part 5 of 10" »

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.)

IRREGULARITY IN THE PROCEEDINGS AND ERROR OF LAW

Code of Civil Procedure Section 657(1) provides a new trial may be granted based upon any irregularities in the proceedings of the court, or any order of the court or abuse of discretion by which a party was prevented from having a fair trial. Section 657(7) provides for vacating a verdict and ordering a new trial due to an error of law which occurred at trial.

The grant of a new trial is a proper remedy for the giving of an erroneous jury instruction when the improper instruction materially affected the substantial rights of the aggrieved party. [C.C.P. §657.] ...'When a new trial was granted on the basis of an erroneous instruction, the order will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury ...' (Maher v. Saad (2000) 82 Cal.App.4th 1317, 1325 citing Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205, quoting Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 871; See also Brignoli v. Seabound Trans. Co. (1947) 29 Cal.2d 782, 791 : "Where it appears that an erroneous instruction confused or misled the jury, a new trial is justified.") For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It Was Substantial Error to Give the CACI 506 Instruction

The order allowing CACI 506, when there was no evidence that Dr. Hill followed an approved or alternative method of diagnosis, was erroneous as a matter of law. This instruction presumptively was prejudicial to Plaintiff, as evidenced by the jury's note.

Continue reading "Trial Court Commits Prejudicial Error In Sacramento Malpractice Suit, Part 4 of 10" »

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.)

POINTS AND AUTHORITIES

THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY THE VERDICT

Code of Civil Procedure Section 657(6) permits the vacating of a verdict and ordering of a new trial if the evidence was insufficient to justify the verdict. The Fourth District Court of Appeal has held that, in determining whether a new trial may be granted on this ground, the trial court must independently weigh the evidence and assess its sufficiency to support the verdict; a new trial may be granted even if the evidence would be considered sufficient to sustain the verdict reached by the jury on appeal. People v. Capps (1984), 159 Cal.App.3d 546, 552; Candido v. Huitt (1984) 151 Points and Authorities in Support of New Trial Points and Authorities in Support of New Trial Cal.App.3d 918, 923. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In the instant case, the testimony of the experts, including Dr. Hill herself, conclusively establishes that Dr. Hill included DRD in her differential diagnosis. She then failed to rule out this diagnosis and further failed to inform the patient of the availability of a simple medication to diagnose DRD. Given the testimony of plaintiff's expert witnesses, and Dr. Hill herself, the jury's failure to find Dr. Hill/The Medical Center negligent was clearly unsupported by the evidence and cannot be substantiated.

Continue reading "Medical Malpractice Suit Pits Sacramento Family Against Its Doctors, Part 3 of 10" »

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.)

STATEMENT OF THE CASE

During the course of the trial, the evidence of Dr. Hill's negligence was based upon her failure to appropriately confirm the differential diagnosis of dopa responsive dystonia by offering the patient a trial of Sinemet (L-dopa). The evidence was undisputed that the diagnosis is made in one of two ways: a trial of L-dopa, or a lumbar puncture with special assay. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

None of the experts testified to an alternative method of diagnosis or treatment under the circumstances at bar. Neither Dr. Hill nor any of the other expert witnesses suggested that she recommend a lumbar puncture. Plaintiff therefore objected to Jury Instruction 506, entitled Alternative Method of Care when offered by the defendant, since same would in effect remove the issue of standard of care from this jury. Initially the court agreed that the instruction may not be warranted. But after argument of counsel, the court, over objection, gave the requested instruction. The instruction states as follows:

A pediatric neurologist is not necessarily negligent just because she chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. (CACI 506)

Continue reading "Jury's Question Raises Concerns In Sacramento Medical Malpractice Case, Part 2 of 10" »

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 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" »

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.)

DEFENDANTS HAVE FAILED TO MEET THEIR BURDEN AND THEREFORE SUMMARY JUDGMENT MUST BE DENIED

Defendant submitted a Declaration by James Greene, M.D., to support the Motion for Summary Judgment. This "evidence" is insufficient, and therefore defendant's motion must fail. The declaration is improper, lacks foundation, and constitutes improper opinion testimony. Dr. Greene completely ignores those portions of the medical records that do not support his contentions, e.g., that Dr. Hall lacked experience with this type of surgery; that defendants should have halted the procedure after several drops in blood pressure attributed to "tugging on the lead;" and that he was "captain of the ship."

While expert opinions are given tremendous weight in Summary Judgment proceedings in medical malpractice cases, statements made without any notable foundation can not simply be accepted because they are made by a purported expert. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff is entitled to have a degree of scientific reliability applied to the defendants' expert declarations. Mere statements without any explanation or foundation other than I'm the expert, trust me are not persuasive. These "experts" have not been deposed in order to discover the basis for their opinions, nor have they provided any such basis in their declarations. This testimony is inadequate for purposes of summary judgment as it does not meet any kind of scientific reliability standard. See, e.g., Daubert v. Merrill Dow Pharmaceuticals. Inc. 509 U.S. 579 (1993); Frye v. United States 293 F. 1013 (D.C. Cir. 1923).

Continue reading "Doctor's Experts Present Weak Evidence In Sacramento Malpractice Case, Part 7 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.)

The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) Because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts (Sinz v. Owens (1949) 33 Cal.2d 749, 753), 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. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)

However, the expert testimony must be based on such matter as may be reasonably relied upon by an expert in forming an opinion on the subject. (Ibid.) With regard to a standard of care derived from a professional practice the induction of a rule from practice necessarily requires the production of evidence of an ascertainable practice. (Wheeler v. Bd. of Forestry (1983) 144 Cal. App.3d 522, 528, fn. 5.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FAILURE TO MEET THE PREVAILING STANDARD OF CARE IN A MEDICAL COMMUNITY IS GROUNDS FOR MALPRACTICE

As is stated in Brown v. Colm (1974), 11 Cal. 3d 639; 114 Cal. Rptr. 128, the Supreme Court held that proof of the standard of care is ordinarily provided by another physician, and if a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes to the weight of his testimony rather than its admissibility. 114. Cal. Rptr., at 130.

Continue reading "Sacramento Physicians Failed To Meet Local Standard Of Care In Patient's Death, Part 6 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.)

A defendant moving for Summary Judgment has the burden of presenting facts to negate an essential element of each cause of action or to show there is a complete defense to each cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Where, as here, the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that the material fact was true. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

In this case, plaintiff has the burden of proving by a preponderance of the evidence that defendants' treatment fell below the standard of care. To be entitled to Summary Judgment in their favor, defendants were required to present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care. Only if defendants were successful in meeting this burden does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Family From Sacramento Presents Strong Malpractice Case Against Local Doctors, Part 5 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.)

GENERAL LAW OF SUMMARY JUDGMENT

The court's sole function on a Motion for Summary Judgment is issue finding ... not issue determination. The law and motion judge must simply determine from the evidence submitted whether there is a "triable issue as to any material fact." Code of Civil Procedure §437(c)(d); Weil and Brown, Civil Procedure Before Trial (1992), pages 60-65.

The function of a trial Court on a Motion for Summary Judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. Molko v. Holy Spirit Association (1988), 46 Cal. 3d 1092; 252 Cal. Rptr. 122.

If there is a single issue of fact in conflict, the motion must be denied (emphasis added). Versa Technologies. Inc. v. Superior Court (1978), 78 Cal. App. 3d 237; 142 Cal. Rptr. 570. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A material fact is a fact which must relate to some claim or defense in issue under the pleadings. Also, it must be essential to the judgment, or if proved, would change the outcome of the case. Pettus v. Standard Cabinet Works (1967), 249 Cal. App. 2d 64; 57 Cal. Rptr. 207.

Continue reading "Surgeon's Errors Lead To Death Of Sacramento Woman, Part 4 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.)

Ms. Smith was a relatively young (44 years) woman with three minor children who had recovered from her cardiomyopathy. Her previous echo was normal and she was asymptomatic. She did not require continued use of a defibrillator. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Use of lasers to extract leads requires experience and judgment to make the determination as to how much pulling to use on a lead, how long to pull on a lead, etc. Dr. Hall had never performed this procedure and Dr. Stephen Lee had only performed it 6-7 times per his deposition. Dr. Hall has responsibility for Ms. Smith's death as captain of the ship . He was monitoring the blood pressure, and he was the surgeon in charge. Per standard of care Dr. Hall should have halted the procedure when complications arose and if necessary obtain cardiology consultation to evaluate the situation and take the proper steps. Continuing the procedure caused the major injury to the vessels which led to Ms. Smith's death. The defendant physicians were not sufficiently experienced to perform this procedure.

Continue reading "Woman Dies In Sacramento Hospital As Result Of Medical Malpractice, Part 3 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.)

Decedent was scheduled for pacemaker and lead extraction secondary to the infection at Memorial by surgeon David Hall, M.D., on January 19, 2009. This was a percutaneous laser lead extraction.

Surgery began at 1532, with purulence encountered in the pseudocapsule. The generator was explanted, and around 1655 problems began. There is a handwritten note at 1700 stating there was easy removal of A-lead, but there were problems with the V-lead. Decedent had sudden loss of blood pressure which improved with released traction, but then dropped again. The surgeons apparently attributed the drop in blood pressure to tugging on the lead. The procedure continued producing another sudden drop in blood pressure and which point sternotomy was performed.

The decision was made to open up decedent's chest. There was absolutely no blood in the pericardium. Right chest was filled with blood. Large bore catheters were placed including one on the atrium. Rapid blood and fluid infusion was implemented. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On exploration, Dr. Hall found shearing of the right subclavian vein, innominate vein and complete shredding of the superior vena cava. The AICD lead (i.e. the V-lead) was found to have a large swath of superior vena cava and parietal pleura. The azygos vein had been sheared and retracted deep into the chest and was bleeding swiftly. Consequently, Ms. Smith died as a direct result.

Continue reading "Sacramento Woman Dies In Hospital Due To Malpractice, Part 2 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.)

Plaintiff's Opposition to Defendant David Hall's Motion for Summary Judgement; Memorandum of Points and Authorities in Support Thereof. (CCP § 437c)

This opposition is based on the grounds that the care and treatment provided by defendants was below the standard of care, caused harm, and that triable issues of material fact exists mandating denial of the Motion for Summary Judgment.

These papers will be based upon this Opposition; the attached Memorandum of Points and Authorities; the Separate Statement of Disputed and Undisputed Material Facts; the Declaration of John Brown, M.D.; the Declaration of Michael Jones, Esq.; upon all of the pleadings, papers and files in this matter; and upon such other and further evidence as may be presented at the time of the hearing of this matter.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This is a medical malpractice case. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Decedent, Kim Smith developed pregnancy related cardiomyopathy in 2004 and was fitted with a AICD (Automatic Implantable Cardioverter Defibrillator). She had three children - aged 3, 9 and 12 years.

Continue reading "Sacramento Family Files Wrongful Death Suit Against Hospital, Part 1 of 13" »

(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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