Sacramento Personal Injury Lawyer Blog

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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, 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 case and its proceedings.)

Defendant Medical Center Foundation Hospitals, Inc.'s Opposition to Plaintiff's Motions in Limine

GENERAL OBJECTIONS

Defendants object to the format of Plaintiffs motions to the extent that they fail to comply with any relevant requirements indicated in the Evidence Code, Code of Civil Procedure and the Rules of Court.

The Work Product Privilege Terminates And The Expert's Knowledge And Opinions Are Subject To Discovery and Disclosure Upon Expert Designation For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It has long been recognized that the work of an expert-consultant is protected by the attorney's work product privilege. (Williamson v. Superior Court (1978) 21 Cal.3d 829, 834; Mack v. Superior Court (1968) 259 Cal.App.2d 7, 11) It is obvious why an expert's work production is shielded under the broad scope of the attorney's work-product privilege. The expert is employed by counsel to form an opinion which he may later present as a witness in court. He is also engaged as an adviser on trial preparation and tactics for the case and in this latter capacity serves as a professional consultant to counsel on the technical and forensic aspects of his specialty.

Continue reading " Medical Malpractice By Sacramento Physicians Causes Veteran's Death, Part 1 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing 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 automobile accident case and its proceedings.)

Similarly, in Bonds v. Roy (1999) 20 Cal.4th 140, the Supreme Court held that when a plaintiff fails to disclose that he intends to seek an opinion from a treating physician, the trial court may preclude that physician from testifying at trial on a subject whose general substance was not previously described in an expert witness declaration, reasoning that the whole purpose of supplying the information set forth in an expert witness declaration is to avoid surprise and gamesmanship at trial. This concept can be applied to the facts of this case. As there has been no testimony or documents supporting a causal link between the subject accident and this fusion surgery, any testimony at trial supporting a causal link would be a surprise to the defense, and should be disallowed to be introduced.

Plaintiff has had ample opportunity to find a doctor or expert that will support a nexus between the surgery and this accident, and as that nexus has not yet been found, plaintiff should be foreclosed from attempting to claim this surgery in damages at trial based upon the probative value of this evidence being substantially outweighed by the danger of an undue consumption of time, danger of undue prejudice, of confusing the issues, and of misleading the jury, per C.C.P. § 352. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Pursuant to C.C.P. § 352, Jones v. Ortho Pharmaceuticals, (1985) 163 Cal.App. 3d 396, and the Supreme Court's holding in Bonds v. Roy (1999) 20 Cal.4th 140, defendants Donna Lee and Veronica Lee request the court to order that plaintiff, plaintiff's witnesses, and his counsel are precluded from attempting to solicit, in any form or manner, any evidence from lay witnesses, non-retained treating physicians Paul White, P.A., Dr. John Brown, M.D., Dr. Devin Smith, or retained experts Sydney Chu, Dr. Andrew Greene, or Dr. Sean Finklestein, as to the causation of his claimed injuries specific to plaintiff Henry Johnson’s February 2009 L5-S1 fusion surgery at Memorial Medical Center.

Continue reading " Sacramento Man's Car Accident Back Surgery Subject Of Experts' Opinions, Part 5 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing 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 automobile accident case and its proceedings.)

Dr. John Brown, M.D., a radiologist who interpreted imaging data as a treating doctor of plaintiff Johnson, was deposed on February 2, 2009, and his transcript has not been completed by the court reporter. Dr. Brown testified that as a radiologist he is unable to determine the sources of any of the degenerative changes that he saw on plaintiff Johnson' imaging data he reviewed. For this reason, Dr. Brown's opinion on causation would be speculative, and would not assist a trier of fact in determining causation.

Based upon the standard for expert testimony in Evidence Code Section 801(a), an expert's opinion is limited to a subject that is sufficiently beyond common experience that the opinion of the expert would assist the trier of fact. In this case, it is clear that any opinion on causation would only cause to mislead or confuse the jury, as the opinions in regards to plaintiff's February 2009 fusion surgery are consistent that plaintiff's experts and treating physicians can not offer an opinion linking the subject accident and this disc injury. For this reason, there is no need for the testimony, as it may cause the jury to be confused as to why the plaintiff is claiming a surgery where not a single medical professional or doctor can causally link to the subject incident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This will then allow the jury to make a link that can not be established through the evidence. In Jones v. Ortho Pharmaceutical Corporation, (1985) 163 Cal.App. 3d 396, a similar situation arose whereby the medical experts in a case were in consensus that there was no causal link between the complained of injuries and a product that was ingested.

Continue reading " Insurance Company Fights Medical Treatment For Sacramento Driver's Accident Injuries, Part 4 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing 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 automobile accident case and its proceedings.)

Paul White, P.A. (date of deposition: January 29, 2009; page and line 31:13-17; 32:10-15)

Q: Are you going to give a medical opinion regarding Mr. Johnson's back, neck, and pain between his shoulder blade injuries as pertains to his August 9th, 2007, motor vehicle accident?
A:No.

Q: Would it be fair to say that as far as rendering opinions on causation, you are not going to render an opinion on the causation of Mr. Johnson's back, neck, or pain between the shoulder blades?
A: It would be fair to say that I'm not going to render an opinion on the cause of his symptoms.

Sydney Chu (date of deposition: January 9, 2009; page and line 27:1-6)

Q: And as it pertains to this case, is it true that you will not be offering any biomechanical opinions regarding the accident?
A: You are correct. I will not be discussing biomechanics, injury causation or anything remotely associated with those two topics.

Dr. Sean Finklestein, Ph.D. (date of deposition: February 3, 2009; page and line 42:13-23)

Q: Okay. Let's move on to the last category, and your last category is that the radiological studies suggest there is not sufficient force to cause the disk injury. Can you comment on the forces involved in that opinion?

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

Continue reading " Medical Experts Battle Over Sacramento Man's Auto Accident Injuries, Part 3 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing 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 automobile accident case and its proceedings.)

DISCUSSION

Plaintiff claims that lumbar fusion surgery on February 6, 2009 was related to alleged injuries suffered by plaintiff from the subject incident of August 9, 2007. Although this claim is being made by plaintiff, there is no documents, evidence, or testimony of his experts, retained, or non-retained, that support this causal link. In fact, quite the opposite is true. Not only has there been a consensus among all the experts that they are not willing to render an opinion on causation for this fusion surgery, but plaintiff's own expert Dr. Sean Finklestein opined that the forces involved in the subject accident were not sufficient to cause a disc injury. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The pertinent testimony is as follows:

Dr. Andrew Greene, M.D. (date of deposition: January 20, 2009; page and line 74:6-11)

Q: Do you intend on offering any opinions or have you been asked to offer any opinions about the relatedness of the surgery to the August 2007 accident?
A: Specifically to surgery?

Q: Yes.
A. No.

Continue reading " Car Accident Forces Back Surgery For Sacramento Man, Part 2 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing 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 automobile accident case and its proceedings.)

Defendants' Motion in Limine to Preclude Sydney Chu, Paul White, P.A., Dr. Smith, Dr. Greene, Dr. Finklestein, and Dr. Brown from Testifying as to Causation of Plaintiff's Disc Injury

INTRODUCTION

Defendants Donna Lee and Veronica Lee hereby move this Court for an order instructing that plaintiff, his witnesses and counsel are precluded from attempting to solicit, in any form or manner, any evidence from lay witnesses, non-retained treating physicians Paul White, P.A., Dr. John Brown, M.D., Dr. Devin Smith, or retained experts Sydney Chu, Dr. Andrew Greene, or Dr. Sean Finklestein as to the causation of his claimed injuries specific to plaintiff Henry Johnson’s February 2009 L5-S1 fusion surgery at Memorial Medical Center.

The basis for this motion is that plaintiff's counsel disclosed that retained experts Sydney Chu, Dr. Sean Finklestein, and Dr. Andrew Greene would render opinions regarding causation for injuries from the subject accident that occurred on August 9, 2007. Also disclosed was that non-retained expert and treating medical provider Paul White, P.A., would also render an opinion on causation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

At Dr. Greene’s and Mr. White's depositions, each of these medical treaters testified that they would not render an opinion regarding the causation of plaintiff's L5-S 1 disc injury that led to L5-S1 fusion surgery by Dr. Devin Smith at Memorial Medical Center, on or around February 6, 2009. As well, at deposition, Dr. Smith testified that he would not render any opinion on causation as to the L5-S1 fusion surgery that he performed.

Continue reading " Sacramento Driver Suffers Back Injury In Car Accident, Part 1 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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 MUST PRESENT AFFIDAVITS OR TESTIMONY OF COMPETENT EXPERTS TO AVOID THIS COURT'S GRANTING OF THE MOTION

In a medical negligence action, a plaintiff must present expert testimony to establish the necessary elements of the case - (1) the defendant did something in his care and treatment that fell below the standard of care and (2) the defendant's negligent conduct caused the plaintiff his injuries. Jones, supra, 163 Cal. App. 3d at 402. In other words, a plaintiff's testimony and/or Complaint are insufficient. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, in this case, unless Plaintiffs present opposing evidence from a competent expert who has rendered an opinion that the care and treatment rendered to Mr. Smith by Memorial Medical Center employees caused or contributed to Ms. Smith's death, Plaintiff simply cannot prevail in this lawsuit. See Ochoa v. Pacific Gas & Elec. Co. (1998) 61 Cal.App.4th 1480, 1487.

THE COURT'S POWER AND ROLE

Calfornia Code of Civil Procedure §437c provides the Court with authority to grant this Motion. California Code of Civil Procedure § 437c(a) provides that a defendant may move for summary judgment if it is contended that an action has no merit. A motion for summary judgment shall be granted if all of the 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. See California Code of Civil Procedure § 437c(c).

Continue reading " Sacramento Surgeons Sued For Wrongful Death And Malpractice, Part 10 of 10 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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 the present case, co-defendant, Dr. White was on staff at Memorial Medical Center. However, he was not an employee of Memorial Medical Center at any time relevant to this action. He was an independent contractor and, therefore, defendant Memorial Medical Center cannot be vicariously liable for his actions. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Additionally, defendant Memorial Medical Center cannot be found liable for the actions of an independent physician, Dr. White, on a theory of ostensible agency. Civil Code § 2300 provides: [a]n agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. The statute requires proof of three elements (1) that the person dealing with the agent must do so with a belief in the agent's authority and this belief must be a reasonable one; (2) such belief must be generated by some act of neglect of the principle sought to be charged and (3) the third person relying on the agent's apparent authority must not be guilty of negligence. See Stanhop v. L.A. College of Chiropractic (1942) 54 Cal. App. 2d 141, 123 P.2d 705.

Continue reading " Sacramento Doctors And Hospital Sued For Egregious Malpractice, Part 9 of 10 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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.)

Additionally, in its investigation, the Department of Public Health reviewed and analyzed infection rates at Memorial Medical Center's NICU, as well as the entire facility and compared it to infection rates of Pseudomonas infections at other hospitals in the community. Memorial Medical Center's infection rates in both the NICU and the general hospital were lower than the other hospitals in the community. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

B. Memorial Medical Center is not liable for the actions of physician co-defendant, Dr. White, as a matter of law, in that he is an independent contractor and not an employee or agent of the hospital.

Memorial Medical Center is not liable for the actions or inactions of Dr. Phillip White.

It is well-established law that a hospital is not licensed to practice medicine and, therefore, cannot be held responsible for overseeing the practice of medicine by licensed physicians on its staff. People v. Pacific Health Corporation (1938) 12 Cal.2d 156; Pacific Employers Insurance Company v. Carpenter (1935) 10 Cal.App.2d 592. The Court in Ware v. Culp (1937) 24 Cal.App.2d 22 determined that a hospital is not ordinarily liable for the malpractice committed by physicians on its medical staff. The Court stated:

Continue reading " Sacramento Family Files Malpractice Lawsuit On Behalf Of Deceased Woman, Part 8 of 10 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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 the instant case, Plaintiffs cannot demonstrate with sufficient medical probability that the Defendant's conduct caused or contributed to Ms. Smith's death. The opinion provided in the attached Declaration of Stanley Choo, M.D., affirmatively establishes that the care and treatment provided by Defendant Memorial Medical Center employees did not cause or contribute to Ms. Smith's death.

The Declaration of Dr. Choo states that based on his review of the pertinent records and his experience, training, and education, to a reasonable degree of medical probability, nothing Memorial Medical Center nurses or employees did or failed to do caused or contributed to the death of Ms. Smith. Ms. Smith died of surgical complications at University Memorial Hospital and not as the result of any act or omission on the part of Memorial Medical Center employees or personnel. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Ms. Smith had a postoperative infection of her CRT-D system. However, such an infection is a known risk of indicated generator replacements and cen occur in the absence of negligence. Additionally, in November 2008, the Department of Health conducted an intensive investigation into Pseudomonas infections at Memorial Medical Center based on a slightly increased rate of Pseudomonas infections which occurred in the Neonatal Intensive Care Unit (the NICU).

Continue reading " Surgical Complications Lead To Wrongful Death Of Sacramento Woman, Part 7 of 10 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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 the instant case, plaintiffs cannot establish the causation element of a negligence claim since plaintiffs cannot show any act or omission on the part of Memorial Medical Center, its employees or agents, caused or contributed to plaintiff's alleged injuries or damages.

A. Summary judgment should be granted since no act or omission on the part of Memorial Medical Center employees caused or contributed to plaintiff's alleged injury or damage:

A cause of action for negligence requires evidence of the legal duty to use due care, a breach of the legal duty, and that the breach is a proximate cause of the resulting injury. 6 Witkin, Summary of California Law, Torts, Section 732 (9th Ed. 1988). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

An essential element of a negligence cause of action is that defendant's negligence was a substantial factor in causing plaintiff's harm. CACI400 (2009). A cause "only becomes probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was the result of its action. Ibid. See also Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403.

Continue reading " Mistreatment Of Hospitalized Sacramento Woman Results In Medical Malpractice, Part 6 of 10 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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.)

DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW AS PLAINTIFFS' CLAIM HAS NO MERIT

Summary judgment is proper if there is no merit to plaintiffs cause of action. California Code of Civil Procedure §437c(a). A cause of action has no merit if one or more of the elements of the cause of action cannot be established. California Code of Civil Procedure §437c(o)(1). The essential elements to establish a claim of medical negligence are (1) a legal duty to use due care; (2) a breach of such legal duty; and (3) the breach as the proximate or legal cause of the resulting injury. 5 Witkin, Summary of California Law (9th Ed.), Torts § 732, p. 60. A defendant is held liable for a plaintiffs' injuries only if plaintiff establishes the above three elements. Id. (emphasis added). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant is entitled to summary judgment if it can disprove at least one essential element of plaintiff's claim for negligence, as provided by California Code of Civil Procedure § 437c(o)(2):
"A defendant or cross-defendant has met his burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action."

Continue reading " Sacramento Physicians' Treatment Of Patient Is Below Standard Of Care, Part 5 of 10 " »