Sacramento Personal 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 wrongful death lawsuit and its proceedings.)

The Declaration of Defendant's Medical Expert Is Insufficient On Its Face to Preclude Existence of a Genuine Issue of Fact for Trial Because He Omits Any Account or Explanation for Defendant's Failure to Treat the Decedent During the Critical 2-Day Period from December 30 to January 2, 2009.

Defendant's medical expert's, James G. Chin, M.D., declaration on its face is insufficient to preclude existence of a triable issue of fact at trial. In his declaration, he does not mention the symptoms and signs of sepsis which the Decedent exhibited on December 31, 2008. (Chin Decl. 28). Dr. Chin only mentioned the Decedent's urine output on December 31, 2008. Decl. 28). Dr. Chin acknowledges that the Decedent's temperature jumped to 103.2 and his white blood cell count was 18.5. Significantly, he does not acknowledge existence of other symptoms or signs of sepsis the Decedent exhibited on January 1, 2009, and he does not identify any treatment Defendant provided him on December 31 and January 1 for his symptoms and signs of sepsis.

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

Continue reading "Sacramento Hospital Patient Dies Of Sepsis Due To Malpractice, Part 8 of 8" »

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, 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.)

A Genuine Issue of Fact Exists for Trial Whether or Not the the Care and Treatment of the Decedent Fell Below the Standard of Care.

Plaintiff's offers expert medical testimony that the care and treatment rendered the Decedent fell below the standard of care. Plaintiff's evidence shows that for two (2) days, 48 hours, Defendants failed to treat the Decedent with broad spectrum antibiotics and surgical debridement. When Defendants got around to ordering broad spectrum antibiotics and considered surgical debridement it was too late. The need to immediately start the Decedent on a broad spectrum of antibiotics should have been apparent to the medical personnel who were caring for him. On December 31, 2008, the Decedent had multiple signs of sepsis. He had rapid increase in temperature, dramatic increase in white blood cell count, persistent tachycardia (rapid heart beat), and increasing agitation. These are telltale symptoms and sign of sepsis.

The previous day, December 30, the Decedent's white blood cell count jumped from 8.1 to 13.2, and, on December 31, his white blood cell count increased to 19.2, and, by 4 p.m., his temperature jumped to 102 degrees.

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

Continue reading "Treatment Below Standard Of Care Leads To Wrongful Death Of Sacramento Man, Part 7 of 8" »

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, 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.)

CMC Is Liable for the Decedent's Death Resulting from the Errors and Omissions of Medical Personnel

A hospital, whether private or charitable, is liable for the torts and negligence of its employees, including physicians, under the theory of respondeat superior. Czubinsky v. Doctors Hospital ( 1983) 139 Cal. App. 3d 361; and Elam v. College Park Hospital (1982) 132 Cal. App. 3d 332. A hospital is negligent if it does not use reasonable care toward its patients. It is the duty of any hospital that undertakes the treatment of an ill or wounded person to use reasonable care and diligence not only in operating upon and treating but also in safeguarding him, and such care and diligence is measured by the capacity of the patient to care for himself. Valentin v. La Societe Francaise de Bienfaisance Mutuelle (1946) 76 Cal.App.2d 1,4.

Negligence "is conduct which falls below the standard established by law for the protection of others against an unreasonable risk of harm." (Rest. 2d Torts, §282.) Defendants were required to exercise the care that a person of ordinary prudence would exercise under the circumstances.' (Citations omitted) Because application of this principle is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances.

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

Continue reading "Medical Malpractice By Doctors At Sacramento Hospital, Part 6 of 8" »

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, 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.)

REASONS WHY SUMMARY JUDGMENT MUST BE DENIED

The Standards Governing Motions for Summary Judgment

A party moving for summary judgment has both a burden of persuasion and a burden of production of evidence. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, and Evidence Code §500. The moving parties bear the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co., supra. There is no obligation on the opposing party ... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain a judgment in his favor. Consumer Cause, Inc. v. SmileCare (2001) 91 Cal. App. 4th 454, 468.

In professional malpractice cases, expert opinion testimony is required to prove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen. Garibay v. Hemmat (2008) 161 Cal. App. 4th 735, 741, citing and quoting Kelly v. Trunk (1998) 66 Cal, App. 4th 519,523. Once the moving party meets its burden of production, the burden shifts to the non-moving party to present evidence to show there is a triable issue fact as to any essential elements of its cause of action. Sanchez v. Swinerton & Walberg Co. (1996), 47 Cal. App. 4th 1461, 1465.

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

Continue reading "Negligent Hospital Staff Causes Wrongful Death Of Sacramento Man, Part 5 of 8" »

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, 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.)

According to the autopsy report of the County Coroner, the cause of death was sepsis (overwhelming infection). The Decedent died on January 3, 2009, at 8:30 a.m.
The misplaced Foley catheter balloon contributed to the sepsis in two ways: First, infected urine that cannot drain, backs up into the kidneys under pressure leading to seeding of bacteria into the blood stream and leads to rapid overwhelming infection. Second, the infection of the urine accompanied by urethral damage led to periurethral abscess formation and ultimately gangrene of the scrotum and perineum.

On December 29, 2008, the Decedent's white blood cell count had jumped from 8.1 to 13.2 on December 30, 2008, and jumped to 19.2 on December 31, 2008, the day the fevers started.
Based upon the symptoms and signs the Decedent exhibited, the appropriate treatment of the Decedent was: immediate initiation of broad spectrum antibiotics and surgical debridement.
On December 31, 2008, the Decedent had multiple signs of sepsis. He had rapid increase in temperature, dramatic increase in white blood cell count, persistent tachycardia (rapid heart beat), and increasing agitation. These are telltale signs of sepsis.

Two days (48 hours) elapsed from the time the Decedent initially began spiking fevers to the time antibiotics were started.

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

Continue reading "Nasty Infection Leads To Wrongful Death At Sacramento Hospital, Part 4 of 8" »

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, 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.)

STATEMENT OF FACTS

On December 22, 2008, David White, the Decedent, a 44-year-old male, was transported by ambulance to National Hospital, operated by Defendant (CMC), after sustaining a stab wound to his neck. The stab wound was serious but not life threatening. His injuries required two operations by the Trauma Service to stop bleeding vessels in his neck.
During his hospital stay, the Decedent exhibited signs and symptoms of alcohol withdrawal, which included tremor, hallucinations, agitation, sweating and rapid pulse. He was treated appropriately with Ativan, Haldol, and IV Thiamine supplementation for his symptoms of alcohol withdrawal.

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

Until December 30, 2008, the Decedent's behavior, vital signs, and lab work remained fairly stable. On December 30, his white blood cell count jumped from 8.1 to 13.2.
On December 31, 2008, the Decedent's white blood cell count increased to 19.2, and by
4 p.m. his temperature had jumped up to 102 degrees. He continued to have fevers throughout the night and continued with increasing temperatures on January 1, 2009 to 103.5 degrees by
6 a.m.

On January 2, 2009 at 10:30 a.m., for the first time medical personnel at National Hospital sought a source of the infection and cultures were ordered. Antibiotics were not ordered until 3 p.m. on January 2, 2009.

Continue reading "Medical Malpractice Action Filed Against Sacramento Hospital, Part 3 of 8" »

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, 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.)

For two (2) days, 48 hours, after the Decedent's white blood cell count increased to 13.2 on December 30, 2008, and to 19.2 on December 31, 2008, and he showed other telltale symptoms or signs of sepsis, rapid increase in temperature, persistent tachycardia (rapid heart beat), and increasing agitation, medical personnel at National Hospital failed to treat him for sepsis. It was not until January 2, 2009, medical personnel begin to look for a source of his infection and ordered cultures and antibiotics. Before they could begin to treat the Decedent appropriately for sepsis or presumed Fournier's Gangrene. It was much too late. David White expired.

The care and treatment medical personnel at National Hospital rendered the Decedent fell below the standard of care. The standard of care required medical personnel to immediately initiate broad spectrum antibiotics and have the patient undergo surgical debridement without waiting to identify a source or cause of the infection.

Defendant's standard of care witness, James G. Chin, M.D., in his Declaration mentions that the Decedent's temperature on January 1, 2009 was 103.2 and his white blood cell count was 18.5.

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

Continue reading "Sacramento Family Files Wrongful Death Suit Against Hospital, Part 2 of 8" »

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, 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.)

Plaintiff Paul White’s Memorandum of Point & Authorities in Opposition to Defendant the Regents of the University of California's Motion for Summary Judgment

INTRODUCTION

Plaintiff Paul White sued Defendant, the County Medical Center (CMC), for wrongful death and professional negligence (medical malpractice). Plaintiff alleges that Defendants were negligent in the care and treatment rendered his father, David White, which resulted in his death on January 3, 2009. On December 22, 2008, David White was transported by ambulance from Fairview and Main Streets in Sacramento to National Hospital in Sacramento to be treated for a stab wound to the left side of his neck.

After his admission, David White, the Decedent, remained in the hospital and was treated appropriately for symptoms of alcohol withdrawal.

The Decedent's death at National Hospital was caused by sepsis due to inflammation and abscess formation in the penile urethra due to a misplaced Foley catheter balloon.

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

Continue reading "Sacramento Man Dies In Hospital Due To Untreated Infection, Part 1 of 8" »

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.)

ARGUMENT cont.

Lack of records at the deposition also does not mean that Dr. Lee should be barred from any opinion whatsoever in the broad subject area identified by Plaintiff in the motion. Dr. Lee likely also gleaned some information about David Hill's military medical history through other sources he did review, such as the deposition of Stella Hill. Just because he does not consider the materials in the binder directly relevant to his opinions does not mean the materials are not relevant at all (it is clear why the events of February 23 and 24, 2008, are more pertinent to Dr. Lee than prior history). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The case law cited by Plaintiff is not on point. The case law cited deals with the scope of opinion an expert plans to present at trial, not the volume or scope of materials reviewed. Counsel cites to no case law that allows him to delineate the scope of opinion testimony to only the documents produced at the deposition. The cases counsel cites seem to stand for the proposition that an expert who affirmatively represents that he has no opinions outside of those provided at deposition or limits opinions to certain areas should be barred from providing opinion testimony on undisclosed areas at trial. This is simply not the case here. Dr. Lee admitted that he did not consider the military records to be as integral to his opinions as certain other records, but he never limited himself in the manner indicated in the cases cited by Plaintiff. A case that is more on point is Sinaiko v. Superior Court (Medical Board of California) 122 Cal.App. 4th 1133, 1142 which provides that an expert's lack of familiarity with certain case materials is not sufficient grounds for excluding testimony. It is clear here that Dr. Lee at least skimmed the military records.

Continue reading "Negligent Actions By Sacramento Doctors Legal Cause Of US Veteran's Wrongful Death, Part 2 of 2" »

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.)

OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE SENT SEPTEMBER 23, 2010 - EXCLUDING EXPERT OPINIONS AND TESTIMONY ABOUT MILITARY AND MEDICAL RECORDS PRIOR TO SEPTEMBER 23, 2008

INTRODUCTION

Plaintiff seeks to exclude any testimony or opinions from Emergency Room expert Dr. Lee concerning David Hill's medical, mental health, or military records for any time prior to February 23, 2008. Plaintiffs motion seems to be based on the sheer fact that Dr. Lee did not have the military records with him at his deposition. There are no legal grounds for excluding such testimony so and Plaintiffs motion in limine should be denied. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FACTS

As Plaintiff points out, Dr. Lee did not have the decedent's military medical records with him at his deposition even though Dr. Lee indicated some familiarity with the records. The deposition took place in Plaintiff's counsel's office and counsel had the records in his possession because he is the one who produced the records to all parties.

Continue reading " Iraq War Veteran Subject To Medical Malpractice By Sacramento Doctors, Part 1 of 2" »

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.)

ARGUMENT

As a threshold issue, Plaintiff cites to no authority indicating that documents, later discovered, cannot be produced in a supplemental discovery response. Plaintiff, by serving a supplement demand before trial, must be prepared for the event that additional documentation or responses would be provided. Defendants did indeed supplement and did so in a timely manner. Plaintiff is well-aware that this is acceptable because she produced her own additional documents. Plaintiff actually produces documentation of decedent David Hill's pay, documentation that most certainly existed at the commencement of this litigation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiffs sole goal in targeting this particular document for exclusion seems to be the mere fact that she does not like what the evidence proves. This is not a viable reason for excluding evidence. Most evidence is prejudicial to the party against whom it is offered. But that is not enough to exclude it under Evidence Code section 352. People v. Doolin (2009) 45 Cal.4th 390, 439 ( prejudicial is not synonymous with damaging ); Rufo v. Simpson (2001) 86 Cal.App.4th 573, 597 (Prejudicial ... does not mean "damaging to a party's case," it means evoking an emotional response that has very little to do with the issue on which the evidence is offered ).

Continue reading "Sacramento Healthcare Facility Responsible For Veteran's Wrongful Death, Part 2 of 2" »

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.)

OPPOSITION TO MOTION IN LIMINE NO. 19 - PLAINTIFF'S MOTION TO EXCLUDE EVIDENCE THAT AMBULANCE WAS CALLED

INTRODUCTION

Plaintiff argues that the Medical Center defendants should be barred from introducing evidence that an ambulance was called on behalf of David Hill simply because the evidence was produced pursuant to Plaintiff's request to supplement all discovery and was not produced earlier. Ironically, Plaintiff herself produced documentation regarding decedent David Hill's earnings through her own responses to Defendants' supplemental discovery demand and Defendant Inter-Con produced additional documentation as well through supplemental responses. Plaintiff may not seek to exclude evidence simply because she does not like the evidence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FACTS

Plaintiff sought information about whether an ambulance was called for David Hill through multiple discovery devices including requests for admission, special interrogatories and a demand for production of documents. Plaintiff's zealous and numerous discovery requests clearly indicate the importance Plaintiff places on whether or not am ambulance was called. However, Defendants take issue with Plaintiffs accusations that Defendants willfully failed to abide by discovery.

Continue reading "Sacramento Physicians Sued For Wrongful Death Of Veteran, Part 1 of 2" »

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.)

Plaintiff also takes issue with the fact that Defendants' did not disclose a nursing expert and security expert in their initial disclosure, claiming Defendants should have known that such experts would be disclosed by Plaintiff. Plaintiff ignores the purpose behind expert disclosures and also expects Defendants to read minds by knowing precisely what types of experts Plaintiff would disclose. Plaintiff herself disclosed an additional expert through her expert disclosure (a vocational rehabilitation expert). Defendants too can make the argument that Plaintiff knew that Mr. Hill's vocational prospects were a key issue in this litigation, yet Plaintiff failed to disclose anyone initially. Finally, contrary to Plaintiffs assertions, it was not obvious that either expert would be retained by Plaintiff. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Additionally, plaintiffs argument relies in part on the filing of a summary judgment and the evidence produced in opposition. However, plaintiff failed to mention that the opposition included only a single declaration from Dr. Gamble, an ER physician, to opine on nursing standard of care and security issues, in addition to physician issues.

Continue reading " Sacramento Veteran With PTSD Subject To Medical Malpractice, Part 3 of 3" »

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.)

ARGUMENT

Like most of Plaintiff's motions in limine, this motion is completely unsupported by any case law or authority supporting Plaintiff's position.

Plaintiff has no basis to exclude the photographs of Mr. Long. The disclosure only requires that the parties attach copies of any discoverable reports and writings and there is no indication that photographs would have to be included with this same disclosure (ironically, Plaintiffs ER expert came to his deposition with a detailed report of his findings, a report that was not disclosed at the time expert disclosures were served). See Code of Civil Procedure section 2034.210(c). The photographs have already been provided to Counsel. As mentioned above, Plaintiffs accusation that no attorney declaration was included with the disclosure is blatantly untrue. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiffs accusation that the designation does not adequately describe the general substance of the expected testimony also carries no weight. First, it is important to bear in mind that this is a supplemental disclosure meaning that defendants named these two experts to contest the testimony and opinions put forth by Plaintiffs experts, the Plaintiff is quite familiar with the types of opinions that will be offered.

Continue reading "Wife Sues For Damages After Husband's Wrongful Death At Sacramento Hospital, Part 2 of 3" »

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.)

OPPOSITION TO MOTIONS IN LIMINE NOS. 16 AND 17 - PLAINTIFF'S MOTION TO EXCLUDE TESTIMONY OF EXPERTS SARAH BLACK AND WILLIAM LONG

INTRODUCTION

Plaintiff inexplicably seeks to preclude Defendants from introducing any testimony from their rebuttal experts, emergency room nurse Sarah Black and security expert William Long. Plaintiff also seeks to exclude photographs taken by Mr. Long of the Sacramento Medical Center Emergency Room. Plaintiff argues that (a) no attorney declaration was provided with Defendants' supplemental disclosure; (b) that should have designated an ER Nurse and security expert in their initial disclosure; and (c) that defendants do not describe the General substance of the expected testimony in their expert disclosure. Plaintiff cites to no authority for any of these contentions.

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

FACTS

The parties exchanged their supplemental expert witness lists on August 23, 2009. Defendants' supplemental expert disclosure was indeed accompanied by an attorney declaration, contrary to what Plaintiff asserts. The declaration also included information about each expert's qualifications, what area the expert is to testify about, the experts' fees and an assertion that the expert has agreed to testify at trial and is sufficiently familiar with the action to provide a meaningful oral deposition. See Code of Civil Procedure section 2034.260. The supplemental disclosure followed the same general format of Defendants' initial disclosure, a document that Plaintiff did not object to.

Continue reading "Deceased Veteran's Family Seeks Relief After Medical Negligence, Part 1 of 3" »

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.)

California law upholds this notion of waiver of work-product privilege when a disclosure is made to a third party. The protection offered by the attorney work product privilege can be waived if work product is disclosed to third parties. (Id; See also, Meza v. H Muehlstein & Co.. Inc., (2009) 176 Cal. App. 4th 969, 981.) Dr. Gamble waived the work product privilege by disclosing otherwise protected information to a third party, to wit, Dr. Lee. The fact that the individual Dr. Gamble chose to approach was the defense expert makes no legal difference. An expert's decision to consult a third party, cannot be shielded since it is by definition related to the work done in connection with the case. That plaintiff expert consulted another doctor is discoverable whether or not it was the defense expert since it relates to the credibility and foundation of the plaintiffs expert's opinions. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

While communications with an expert retained to assist in the preparation of a defense may initially be protected by the attorney-client privilege, the privilege is waived when the expert is identified or a substantial portion of his otherwise privileged evaluation is disclosed. (Woods v. Superior Court (1994) 25 Cal. App. 4th 178, 187.) The fact that Dr. Gamble sought out advice or information from the defense expert, as well as any statements made by the physician represents a type of disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney's work product and trial preparation. (Meza v. H. Muehlstein & Co., Inc., supra, 176 Cal. App. 4th at 981.)

Continue reading "Wife Of Sacramento Veteran Seeks Damages After Husband's Wrongful Death, 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.

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.)

The statutory language in Evidence Code § 912 indicates that one must look to the words and conduct of the holder of the privilege to determine whether a waiver has occurred. The very conduct of the plaintiffs expert as well as his disclosure about the facts of this case belies a waiver. This was no accidental or inadvertent disclosure of privileged information. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Under Code of Civil Procedure §2034.201 et. seq., the attorney's work product privilege does not apply to an expert's pretrial statements once that expert is designated as a witness at trial. The statutory provisions entitles a party to request not only information about each expert retained and designated by a party, but is also includes a provision entitling a party to demand the production of all discoverable reports and writings upon which the expert bases his/her opinion. Moreover, a party is entitled to depose this same expert witness and inquire about an expert's communications conducted for the purpose of formulating and expressing an opinion in anticipation of litigation. Through expert disclosure of plaintiff's expert that work product privilege has been waived. (See e.g, United States v. Nobles (1975) 422 U.S. 225, 239-240, electing to present the expert as a witness destroys the work product privilege.)

Continue reading "Veteran With PTSD Suffers Wrongful Death In Sacramento Hospital, 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.

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.)

Plaintiff Has Effectively Waived A Privilege Which Can No Longer Be Asserted

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

Any attempt by plaintiffs counsel to argue that his expert's decision to approach the defense expert for an opinion or consultation on the case as being privileged or protected information is futile. The party asserting a privilege (plaintiffs counsel and expert) must establish whatever preliminary facts are necessary to show that the proffered evidence is privileged. (Evidence Code § 405) Here, opposing counsel will undoubtedly attempt to argue that the very fact that its ER expert sought out the opinion of the defense expert is a matter which falls under the protection of the attorney work product privilege and should remain so. This notion is contrary to California law however. Evidence Code § 912 subd. (a) states in pertinent part regarding waiver of privilege:

Continue reading " Sacramento Veteran Suffers Wrongful Death By Negligent Doctors, 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.

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.)

Under well established discovery rules, when it appears reasonably certain that the consultant-expert will give his or her professional opinion as a witness on a material matter in dispute, the attorney's work product privilege terminates and the expert's knowledge and opinions are subject to discovery and disclosure. (County of Los Angeles v. Superior Court (1990) 222 Cal. App. 3d 647, 654-655) In other words:

Once it appears reasonably certain that the consultant-expert is to become a witness in the action, the attorney's work-product privilege terminates and the expert's knowledge and opinions are subject to discovery and disclosure. (Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 202, citing, San Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d 194.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, in this case, since plaintiff's expert has been designated, the work product privilege can no longer be claimed. That privilege has effectively been terminated. This rule of termination is one of fairness.

Continue reading "Sacramento Family Sues For Medical Malpractice, 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.

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.

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" »

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.)

SUMMARY JUDGMENT MUST BE GRANTED AS A MATTER OF LAW WHEN NO TRIABLE ISSUE OF MATERIAL FACT EXISTS

A motion for summary judgment must be granted if there is no triable issue as to any material fact. California Code of Civil Procedure §437c(c). The court has no discretion to refuse summary judgment where the evidence before the court discloses no triable issue as to any material fact; the moving party is entitled to judgment as a matter of law. Drasley v. Superior Court (1980) 101 Cal.App.3d 425, 427; see also Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759. Summary judgment is an efficient and expeditious method of disposing of unmeritorious cases. Judge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70 (holding that [i]t is in the public interest, including the court's interest in the efficient and economical administration of justice and the parties' interest in the prompt and affordable resolution of unmeritorious cases, to expeditiously rid the judicial system of a case in which a party is entitled to judgment as a matter of law, without requiring protracted litigation and a trial on the matter ).

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

The proper case for summary judgment is one in which the plaintiff cannot prevail because there is no substantial controversy as to any of the issues raised.

Continue reading "Negligent Doctors Cause Death Of Sacramento Woman, Part 4 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.)

STATEMENT OF FACTS

Plaintiffs' decedent, Kim Smith, was admitted to Memorial Medical Center on November 7, 2008, by Dr. Phillip White for replacement of a cardiac-resynchronation implantable defibrillator (CRT-D) pulse generator that had reached the battery's elective replacement indicator. Insertion of a coronary sinus lead for left-ventricular pacing was also planned. The previously implanted system consisted of a Medtronic Model 7277 InSync Marquis pulse generator, Model 5076 transvenous atrial lead, Model 6947 transvenous right-ventricular lead, and Model 5071 epicardial left-ventricular lead. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On November 8, 2008, Dr. White performed a CRT-D generator replacement (with a Medtronic Model C154DWK Concerto generator), pocket revision, and removal of lipoma. The coronary sinus was cannulated, but no lead was deployed because the target vessels were too small. No complications were noted. Postoperatively, Ms. Smith did not exhibit any signs or symptoms of infection. She was discharged home on November 10, 2008.

Subsequent to her discharge from Memorial Medical Center, Ms. Smith was seen in office for a follow-up by her general practitioner, Dr. Hernandez. On November 15, 2008, Dr. Hernandez diagnosed Ms. Smith with left chest wall wound infection and prescribed her Rocephin and Keflex. Dr. Hernandez continued to follow Ms. Smith in his office on November 18, November 25, November 27, November 30, and December 7, 2008. On December 20, 2008, Ms. Smith presented to the Emergency Room at Memorial Medical Center with complaints of redness and pain at the site of the CRT-D pulse generator. She was diagnosed with an infected CRT-D pocket and cellulitis.

Continue reading "Surgical Errors Cause Sacramento Patient's Death, Part 3 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.)

As will be discussed more fully below, and in the declaration of defendant's expert, Dr. Stanley Choo, no act or omission on the part of Memorial Medical Center employees caused or contributed to any injury or damage to the plaintiffs' decedent, Ms. Smith. The infection that occurred subsequent to Ms. Smith's surgery is a known risk of the procedure and a risk that can occur in the absence of negligence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further, as is set forth in the declaration of Deborah Wong, infection control officer for Memorial Medical Center, 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). The Department of Public Health determined that none of the adult patients infected with Pseudomonas at Memorial Medical Center in November and December 2008 were infected with the same strain of Pseudomonas that occurred in the NICU. Therefore, Ms. Smith's Pseudomonas infection was not related to the "outbreak" of Pseudomonas in the NICU in 2008, as alleged by the plaintiffs in this case.

Continue reading "Family From Sacramento Sues Doctors For Malpractice, Part 2 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.)

Motion for Summary Judgment; Memorandum of Points and Authorities in Support

Defendant MEMORIAL MEDICAL CENTER, will move this Court for an Order granting summary judgment in their favor and dismissing, with prejudice, Plaintiffs' Complaint on file herein.

INTRODUCTION

This is a wrongful death/product liability/medical malpractice action against Memorial Medical Center and others in connection with the death of plaintiff's decedent Kim Smith at University Hospital on January 19, 2009. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Ms. Smith underwent surgery by co-defendant, Dr. Phillip White at Memorial Medical Center in November 2008, for replacement of a pacemaker generator and defibrillator device (CRT-D). (Dr. White was not an employee of Memorial Medical Center.)

Continue reading "Sacramento Woman Sues Hospital For Wrongful Death, Part 1 of 10" »

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

Plaintiffs Cannot Establish Causation: Nothing the Universal Medical Center Staff, or Dr. Greene, Did or Failed to Do Caused or Contributed to Mr. Ryan's Death, as He Was Clinically Dead When He Arrived at the Emergency Room

Mr. Ryan was found in full cardiac arrest in his home. Paramedics arrived on scene approximately 15 minutes after Mr. Ryan was first found unresponsive, and he did not respond to the advanced life support efforts rendered by the paramedic team for over 30 minutes, between 2251 and 2322. In other words, by the time Mr. Ryan arrived at Universal, he had been unresponsive and lifeless (i.e., dead) for approximately 45 minutes. The emergency room staff undertook further resuscitation efforts which were overseen by Dr. Greene for yet another 23 minutes, with no success. Dr. Fine has reviewed the medical records from Universal which reflect the treatment rendered during the code, the medications given and the efforts undertaken to revive Mr. Ryan. It is her expert opinion that not only was this care well within the standard of care for emergency room treatment, but that the code could have been called even earlier than it was.

It is Dr. Fine's opinion that Mr. Ryan was clinically dead by the time he reached the hospital, and there was nothing the staff or Dr. Greene could have done that would have brought Mr. Ryan back to life. Because Mr. Ryan was already dead on arrival at the hospital, nothing the hospital did could have caused his death, which had already occurred. Therefore, plaintiffs cannot establish the necessary elements of breach of standard of care or causation, and summary adjudication as to their wrongful death cause of action against Universal must be granted.

Continue reading "Elder Abuse Leads To Death Of Sacramento Man, 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 wrongful death/elder abuse case and its proceedings.)

A medical practitioner is not to be held responsible merely because his treatment of a patient was not successful or was accompanied by untoward consequences. The practitioner is not omniscient or capable invariably of knowing that his professional acts will achieve the desired result; he is responsible only where it is established that he did not act with the knowledge or foresight of practitioners generally or as a reasonably skillful and experienced practitioner would have acted in the same circumstances.

The law does not require that a physician have the highest skill medical science knows. He or she is deemed to represent that he has only that reasonable degree of learning and skill possessed by practitioners of the same school or method in the locality and which is ordinarily regarded by those conversant with his type of practice as necessary to qualify him to engage therein. And the law makes allowance for human weakness in the application of skill and learning. The practitioner is required to use his best judgment in exercising his skill and applying his knowledge, but mere errors in judgment are not ground for liability unless the skill and judgment actually employed fall below the standard. Negligence on the part of a doctor is never presumed.

In a malpractice case, generally speaking, the doctor must be tested with respect to his knowledge and skill by the average knowledge and skill of practitioners of the same school of medicine in the locality where the doctor carries on his profession. It should be noted that Dr. Leonard was a general practitioner and did not claim to be a specialist, and that the amount of care to be expected from a general practitioner in a given locality is not as great as that expected from a specialist. (Allen v. Leonard (1969) 270 Cal.App.3d 209, 215-216.)

Continue reading "Children of Sacramento Man File Wrongful Death Suit, 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 wrongful death/elder abuse case and its proceedings.)

Plaintiffs Cannot Establish Negligence Against Universal: The Treatment Rendered to Mr. Ryan in the Emergency Room at Universal Medical Center Was Within the Standard of Care

With regard to Dr. Greene and the care rendered in the emergency room, the standard of care for a medical professional is indicated as follows:

An emergency room physician is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful emergency room physicians would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as the standard of care. (CACI No. 501.)

The standard of care is determined by expert testimony. (Ibid.) In this case, in order to establish that Dr. Greene and Universal staff were negligent, plaintiffs must demonstrate by a preponderance of evidence that treatment rendered to Mr. Ryan in the emergency room by Dr. Greene and the Universal staff fell below the standard of care, specifically with respect to the resuscitation efforts in the emergency room. It should be remembered that a doctor is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. A medical practitioner is negligent only if he was not as skillful, knowledgeable, or careful as other reasonable medical practitioners would have been in similar circumstances. (CACI No. 505.)

Continue reading "Elder Abuse By Sacramento Healthcare Provider, 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 wrongful death/elder abuse case and its proceedings.)

Plaintiffs Cannot Establish the Necessary Elements of Their Wrongful Death Cause of Action Against The, As All Treatment Was Within the Standard of Care and Did Not Cause Mr. Ryan's Death

The essential factual elements of plaintiffs' negligence/wrongful death claim against the The are:
1. That the staff of Universal Medical Center was negligent;
2. That Mr. Ryan was harmed (i.e, he died); and
3. That the staff negligence was a substantial factor in causing Mr. Ryan's death. (CACI No. 500.)

Once again, for purposes of this motion only, it will be presumed that Dr. Greene was either an employee or agent of The Medical Center. In other words, plaintiff must be able to establish that the staff at The Medical Center fell below the standard of care applicable to then in treating Mr. Ryan during his emergency room visit while he was in full cardiac arrest, and that such treatment was a substantial factor in causing Mr. Ryan's death. Notably, the complaint is entirely devoid of any allegations of negligence against any staff member at The Medical Center; rather, the complaint merely alleges that Dr. Greene did not undertake all necessary measures to revive Mr. Ryan.

Plaintiffs allege that Dr. Greene was an agent or employee of The. While this is untrue and in fact disputed by Universal, for purposes of this motion only, it will be presumed that Dr. Greene was acting it the course and scope of some agency relationship with Universal. Thus, if plaintiffs cannot establish that his treatment of Mr. Ryan was negligent, and that his negligence was a substantial factor in causing Mr. Ryan's death, then summary adjudication as to Universal is warranted. It should be noted that Dr. Greene is not represented by counsel for Universal, and summary adjudication of the negligence/wrongful death cause of action is not sought as to Dr. Greene via this motion.

Continue reading "Physicians From Sacramento Sued For Wrongful Death, 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 wrongful death/elder abuse case and its proceedings.)

Once defendant has shown in its moving papers that a valid defense to the action exists or that one or more elements of a cause of action (such as elder abuse), even if not separately pleaded, cannot be established, defendant has met its initial burden of showing that the cause of action has no merit. (Code of Civ. Proc. §437c(p)(2).) Once the defendant has met that initial burden, the burden then shifts to plaintiffs who must then show that a triable issue of one or more material facts exists as to each element of that cause of action. (Code of Civ. Proc. §437c(p)(2).) However, this burden which plaintiffs must satisfy is quite stringent.

Plaintiffs must set forth specific facts which prove the existence of a triable issue of material fact relative to the clements of the cause of action. (Code of Civ. Proc. §437c(p)(2); Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Mere allegations or denials of the pleadings, or factually devoid responses to discovery, are simply not sufficient to demonstrate that a triable issue of material fact exists. (Code of Civ. Proc. §437c(p)(2); Lopez, supra at 1014; Saelzler, supra at 767; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583-84.) If plaintiffs fail to satisfy this burden, judgment in favor of the moving defendants shall be granted as a matter of law. (Code of Civ. Proc. §437c(c).)

Less well known is that plaintiffs opposing a motion for summary adjudication must actually go well beyond merely raising a nominal issue of fact. Plaintiff must produce evidence which is legally sufficient to satisfy the applicable evidentiary standard of proof they will ultimately bear at trial, such as preponderance of the evidence. (Leslie G. v. Perry & Associates (1996) 43 Cal.4th 472, 487.)

Continue reading "Elder Abuse By Sacramento Doctors Leads To Patient's Death, 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 wrongful death/elder abuse case and its proceedings.)

LAW AND ARGUMENT

Applicable Standards for Granting Summary Adjudication

The complaint frames the issues to be determined on summary judgment. (Varni Bros. Corp. v. Wine World, Inc. ( 995) 35 Cal. App. 4th 880, 887, ) When no triable issue of material fact exists, the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (f)(2).) Hence, a motion for summary adjudication should be granted in a personal injury case such as this if all the papers submitted show there is no triable issue as to any material fact with respect to the elements of the causes of action sought to be adjudicated. (Id., at subd. (f).) Summary adjudication must be granted if it disposes of a cause of action. (Ibid.)

A cause of action has no merit, and is therefore subject to summary adjudication, where "one or more of the elements of the cause of action cannot he separately established, even if that element is separately pleaded." (Id., § 437c, subd. (n)(1).) Accordingly, summary adjudication is appropriate if any element of the challenged cause of action cannot be established.

California law also recognizes the appropriateness of summary adjudication ... even if there are disputed factual issues, when the defendant's showing negates an essential element of the plaintiff's case. In this regard, "no amount of factual conflict upon other aspects of the case will preclude summary judgment." (Shivley v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627.) The court is required to consider all the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence. (Code Civ. Proc. § 437c, subd. (c).)

Continue reading "Sacramento Hospital Sued For Wrongful Death, 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 wrongful death/elder abuse case and its proceedings.)

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

At 2255, paramedics arrived at the residence of Sean Ryan in Stockton, California after a 911 call had been placed at 2251. Once on the scene, the paramedics found a 61 year-old male weighing approximately 400 pounds in full arrest. Ryan had no pulse and apneic with fixed and dilated pupils. He was cool to the touch in a warm house. Paramedics were advised by a man on the scene that Mr. Ryan had been down for less than 15 minutes. CPR was initiated and Mr. Ryan had no pulse electrical activity with an initial cardiac rhythm of 20 beats per minute, followed by asystole. The patient was hyperventilated prior to intubation.

Epinephrine and normal saline were given down the endotrachcal tube. The patient remained in asystole. IV access was attempted twice with no access gained. Mr. Ryan was transported to The Medical Center with ALS C-3 with one fire on board. He was turned over to the Emergency Department physician and nursing staff at 2321, approximately 26 minutes after the paramedics arrived on the scene, and approximately 41 minutes after Mr. Ryan was first determined to be down.

At 2322, after being presented to the Emergency Department, Mr. Ryan's pupils were fixed and dilated and he had no pulse electrical activity. CPR was administered. At 2329, medications were administered via IV. Mr. Ryan remained in asystole throughout the hold count.

At 2330, Mr. Ryan continued to be asystolic with medications and CPR being administered. He remained asystolic throughout the next 13 minutes with additional doses of medication, hold counts, and CPR administered. At 2345, Dr. Greene called the end of the Code, at which time the patient was pronounced deceased.

Continue reading "Family Of Deceased Sacramento Man File Elder Abuse Suit, 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 wrongful death/elder abuse case and its proceedings.)

Procedural Background

Mr. Ryan died on June 1, 2008. Plaintiffs filed a complaint on September 23, 2008. Plaintiffs named as defendants Gary Greene, M.D.; Physicians Medical Corporation, Inc. (Dr. Greene's employer); The Medical Center; and James Black (Chief Operating Officer of The Medical Center). Plaintiffs' Complaint for Damages set forth causes of action for: (1) wrongful death; (2) negligent hiring; (3) negligent supervision; (4) civil conspiracy; (5) intentional infliction of emotional distress; (6) elder abuse; and (7) negligent infliction of emotional distress.

On November 3, 2008, the TMC defendants filed a demurrer to all six causes of action for failure to state facts sufficient to constitute a claim for any of the above-enumerated causes of action. Presumably due to the numerous deficiencies, plaintiffs did not file an opposition to defendants' demurrer, but they filed an Amended Complaint for Damages on December 3, 2008.

Plaintiffs' Amended Complaint for Damages frames the issues for this motion for summary adjudication. It sets forth five causes of action. By way of demurrer, the TMC defendants have challenged the fourth and fifth causes of action for negligent infliction of emotional distress and elder abuse, respectively. The demurrer is set for hearing on March 8, 2009.

Continue reading "Wrongful Death Of Sacramento Man In Hospital, 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 wrongful death/elder abuse case and its proceedings.)

Plaintiffs' complaint alleges wrongful death, failure to report and civil conspiracy, intentional and negligent infliction of emotional distress and elder abuse, against the various defendants. Defendant Dr. Gary Greene was the physician who oversaw the treatment of Mr. Ryan in the emergency room.

Notably, the complaint is completely devoid of any allegations of negligence against any staff or employee of Universal Medical Center with respect to the treatment Mr. Ryan received in the emergency department. Plaintiffs allege, rather, that Dr. Greene was negligent in treating Mr. Ryan, and they further allege that Dr. Greene was either an agent or an employee of Universal Medical Center.

The core grievance throughout plaintiffs’ complaint is their claim that Dr. Greene formed an intent to steal Mr. Ryan watch while in the emergency room, and thus he did not perform all necessary measures to resuscitate Mr. Ryan. Plaintiffs allege that Universal Medical Center is liable for Dr. Greene's allegedly criminal actions. There is evidence in this case that Dr. Greene may have stolen the watch. The staff at Universal Medical Center, however, recovered the watch, which was returned to the family that night. There has been a grand jury indictment against Dr. Greene for the theft of the watch. The alleged theft, whether it occurred or not, however, is not germane to the issues herein. Whether or not the watch was stolen by Dr. Greene, however, is irrelevant to the issues presented in this motion for summary adjudication against the wrongful death cause of action.

Continue reading "Elder Abuse Suit Filed By Sacramento Family, 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 wrongful death/elder abuse case and its proceedings.)

Memorandum of Points and Authorities in Support of Defendant TMC, Inc.’s, dba Universal Medical Center's Motion for Summary Adjudication

INTRODUCTION AND PROCEDURAL BACKGROUND

This motion for summary adjudication is brought on behalf of defendant TMC, Inc., dba Universal Medical Center (hereinafter collectively referred to as "Universal") against plaintiffs' first cause of action for wrongful death. Plaintiffs Sean Ryan, Jr. and Nancy Smith (hereinafter collectively referred to as "plaintiffs") have alleged several additional causes of action against defendants, all of which they claim arose out of the death of their father, Sean Ryan, Sr. (hereinafter "Mr. Ryan") on June 1, 2008.

Background Facts and Issues Presented

Mr. Ryan was a 61-year-old man weighing over 400 pounds. A neighbor called 911 after Mr. Ryan, had collapsed and was non-responsive for about 15 minutes. Emergency personnel arrived at approximately 2251 and found Mr. Ryan in full arrest with fixed and dilated pupils and cold to the touch. Mr. Ryan was intubated, and the paramedics attempted resuscitation for about 31 minutes, both at his home and en-route to the emergency room. During this time, Mr. Ryan remained non-responsive and had no pulse. The paramedics attempted to insert an intravenous line on-scene, but they were unable to gain access to a vein. Mr. Ryan was brought into the emergency room at Universal Medical Center at approximately 2322, still unresponsive.

Continue reading "Sacramento Family Files Wrongful Death Suit, Part 1 of 10" »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF'S ELEVENTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Plaintiff was present in the hospital when Robert Lee was being mistreated by his doctors. As such, she is a bystander victim. Further, Plaintiff was in contact by telephone during the incident. There is clearly a duty owed by Defendant ODA to Plaintiff, as they assumed that duty when they reached out to her claiming to be ethical, concerned, professionals in the subject of organ donation. As experts in a highly specialized and professional area, organ donation, Defendant ODA owed a duty to Plaintiff to disclose what they knew about her son, and to inform Plaintiff of the facts relevant to her decision to donate organs. (See Tyler v. California Children's Home (1994) 29 Cal.App.4th 51 1, 548 (duty of ethical principled professionals to disclose and inform). (See also Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 783-784 (homeowners relying on a brokers expertise, there was a duty to disclose various details on behalf of the broker).)

The demurrer should be overruled.

PLAINTIFF'S TWELFTH CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Plaintiff's claim for unfair business is not about medical negligence. Plaintiff has stated sufficient facts to support a claim regarding Defendant's business practices. Plaintiff respectfully submits that the complaint, read as a whole, makes clear that Plaintiff is alleging that Defendants are engaged in unscrupulous business practices, engaging in outright fraud and deceit in their effort to find organ donors, and supply organs to others. Plaintiff's claim for unfair business practices is properly pled. Demurrer should be overruled.

Continue reading "Sacramento Parents Watch Son Mistreated And Die At Local Hospital, Part 11 of 11" »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF'S TENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Plaintiff alleges that Defendant ODA (a) intentionally committed fraud upon Cindy Lee in an effort to obtain her consent to harvest Ruben's organs, and that (b) ODA did so knowing that Ruben was not an appropriate candidate for organ donation, and that (c) ODA and its employees intentionally bartered, abused and attempted to kill Robert Lee illegally in violation of all legal and ethical standards, including disconnecting him from life support without consent, and injecting him with lethal doses of drugs in an effort to hasten his death.

Defendant states that Plaintiff has failed to show any extreme or outrageous conduct on the part of Defendants

Defendant's argument lacks merit. According to Defendant, intentional fraud, devious failure to inform Cindy Lee of her son's prognosis and unsuitability for organ donation, illegal and intentional disconnection from life support and injection with lethal doses of drugs is not extreme and outrageous.

Plaintiff specifically alleges that ODA did these things, and that they directly lied to her in a fraudulent effort to gain her consent. Clearly, the conduct was directed at Plaintiff, as well as her deceased son Ruben.

Continue reading "Local Doctors Sued For Malpractice And Wrongful Death By Sacramento Woman, Part 10 of 11" »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF'S EIGHTH CAUSE OF ACTION FOR FRAUD IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Defendant's sole argument against the fraud cause of action is that specific facts were not pleaded. Plaintiff respectfully disagrees. Extensive factual allegations of fraud exist throughout the complaint.

Defendant's demurrer on grounds of "uncertainty" lacks merit. First, Plaintiff's complaint pleads numerous specific facts and allegations. [S]pecificity in the pleadings is not required because any doubts are more properly resolved through discovery. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) Furthermore, any specificity requirements are relaxed when, as here, the defendants necessarily have superior knowledge of the facts. (Committee on Children's Television, Inc v. General Foods Corp (1983) 35 Cal.3d 197, 213-214.)

Fraud is either actual or constructive. (Cal. Civil Code 1571.) Plaintiff's complaint alleges both.

California Civil Code section 1572 defines actual fraud provides as follows:
1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
3. The suppression of that which is true, by one having knowledge or belief of the fact;
4. A promise made without any intention of performing it; or,
5. Any other act fitted to deceive.

Continue reading "Fraud By Sacramento Donor Organization Leads To Malpractice Suit, Part 9 of 11" »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF'S SIXTH CAUSE OF ACTION FOR NEGLIGENCE IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Defendant's own arguments are self-defeating, and indicative of exactly why the demurrer should be overruled. On one hand, Defendant argues in its demurrer that "ODA cannot practice medicine" and therefore should not be subject to the seventh cause of action for medical malpractice. On the other hand, Defendant argues that the negligence claims are duplicative and thus should be stricken without leave to amend. Defendant cannot have it both ways. Defendant cannot argue that (a) it should be released (at pleading stage) from medical causes of action, and (b) it should be released from negligence causes of action because they are duplicative.

Plaintiff, on the other hand, is allowed to plead it both ways. In general, a plaintiff is entitled to plead alternative theories and even inconsistent allegations. (See Adams v. Paul (1995) 11 Cal.4th 583, 593.) Given that Plaintiff alleges that Defendant ODA was directing Doctors and Nurses, and that it did in fact employ medical professionals and direct their work, ODA is a proper defendant in both causes of action.

Defendant's concerns can be dealt with in discovery. Its demurrer should be overruled.

Continue reading "Sacramento Physicians Sued For Malpractice After Improper Organ Donation, Part 8 of 11" »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiff's Third Cause of Action for Negligence Per Se (Violation of Elder Abuse and Dependant Adult Civil Protection Act, hereinafter, "EADACPA") is Properly Pled

Plaintiff's third cause of action is not solely a negligence per se claim. While the third cause of action refers to EADACPA as a basis for a negligence per se claim, the cause of action itself is titled as a "Violation" of that act. The third cause of action is not duplicative of anything. It is a stand alone cause of action for Abuse of an Adult Dependent.

Defendant's demurrer on grounds that the complaint contains allegations of intentional conduct and negligence on the same facts wholly lacks merit In general, a plaintiff is entitled to plead alternative theories and even inconsistent allegations. (See Adams v. Paul (1995) 11 Cal.4th 583, 593.)

Plaintiff's Fourth Cause of Action for Negligence Per Se (Prescription of Controlled Substance Without Legitimate Medical Purpose) and Fifth Cause of Action for Negligence Per Se (Violation of Uniform Anatomical Gift Act)

Defendant's demurrer to the fourth and fifth causes of action should be overruled. It is clear from the complaint that these statutes are two separate statutory basis for negligence per se claims. They are not duplicative. Duty, breach, causation and damages are all pled, as well as the statutory grounds for negligence per se claims. In general, a plaintiff is entitled to plead alternative theories and even inconsistent allegations. (See Adams v. Paul (1995) 11 Cal.4th 583, 593.)

Continue reading "Elder Abuse Action Filed Against Sacramento Healthcare Facility, Part 7 of 11" »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiff's Third, Fourth And Fifth Causes Of Action For Negligence Per Se Are Sufficiently Pled And Supported By Factual Allegations

Defendant's argument in support to demurrer to the Third, Fourth and Fifth causes of action are essentially that (a) Plaintiff's complaint is too organized, and (b) the causes of action do not specifically identify how each defendant supposedly violated the specific statutes.

Plaintiff's effort to be clear and specific by pleading a "Negligence Per Se" cause of action for each separate and distinct statute involved is not grounds for demurrer.

California Evidence Code section 669 provides, in pertinent part, as follows:

The failure of a person to exercise due care is presumed if:
(1) He violated a statute, ordinance, or regulation of a public entity;
(2) The violation proximately caused death or injury to person or property;
(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and
(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

In an effort to specifically and clearly plead the causes of action and claims at issue in this case, Plaintiff delineated a separate and distinct cause of action for Negligence Per Se for each separate and distinct statute involved.

Continue reading "Medical Malpractice Lawsuit Filed By Sacramento Family, Part 6 of 11" »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF'S NEGLIGENCE BASED CAUSES OF ACTION ARE SUFFICIENTLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Defendant demurrers to Plaintiff's cause of action for battery on grounds that (1) plaintiff failed to specifically identify which defendants committed the battery, and that (2) there is not one scintilla of fact or evidence that the defendant intended to cause harm to the decedent.

Plaintiff's First Cause Of Action For Wrongful Death Is Proper

Defendant's sole argument in support of demurrer to the first cause of action for wrongful death is that it is "duplicative." That argument lacks merit. The cause of action for wrongful death is not duplicative simply because it involves the same facts as other causes of action.

Defendant ODA states that there is a single. statutorily created cause of action for wrongful death. (Code Civ. Proc., §377.60 et seq.) CCP section 377.60 simply enumerates those persons who may assert "a cause of action for the death of a person caused by the wrongful act or neglect of another." That does not mean that there can only be one cause of action that somehow relates to someone's death. Defendant's argument has no support in fact or law.

Continue reading "Sacramento Hospital Sued For Violating Organ Donor Statute, Part 5 of 11" »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF'S CAUSE OF ACTION FOR BATTERY IS SUFFICIENTLY PLED AND SUPPORTED BY THE ALLEGATIONS OF THE COMPLAINT

Defendant demurrers to Plaintiff's cause of action for battery on grounds that (1) plaintiff failed to specifically identify which defendants committed the battery, and that (2) there is not one scintilla of fact or evidence that the defendant intended to cause harm to the decedent.

The Complaint Clearly Alleges Battery Against All Defendants

Defendant's demurrer to battery is first premised on the statement that plaintiff failed to specifically identify which defendants committed the battery. (Id.) Defendant's argument fails for two reasons.

First, Defendant fails to cite any authority whatsoever to indicate that Plaintiff must "specify which Defendant" committed the acts of battery. There is no such requirement. California is a notice pleading state, and the cause of action for battery is sufficient to put Defendant ODA on notice that Plaintiff is alleging that ODA is responsible for battery.

Second, even if Plaintiff was required to specify which Defendant committed the acts of battery, the complaint does so. The complaint clearly alleges which Defendants committed the battery. The cause of action for battery is against all Defendants. The cause of action for battery specifies (a) taking Robert Lee off a respirator (b) administering a lethal dose of morphine and Ativan to him, intentionally and/or recklessly and/or in conscious disregard of his rights. Plaintiff alleges that Defendants Hill and Brown were employees and/or agents and/or representatives of Defendant ODA, and were acting on ODA's behalf.

Continue reading "Wrongful Death Suit Filed By Sacramento Family, Part 4 of 11" »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Organ Donor Association And Its Staff Violated California Law And The UAGA

California Health and Safety Code section 7182 provides, in pertinent part, as follows:

Neither the physician making the determination of death under Section 7155.5 nor the physician making the independent confirmation shall participate in the procedures for removing or transplanting a part.

Plaintiff's complaint further alleges that as provided by California law, transplant doctors are not to direct the treatment of potential organ donors before they are declared dead. Plaintiff alleges that Defendants, including specifically David Hill, M.D., whom Plaintiff alleges was an employee and/or agent and/or representative of Defendant ODA, "violated California law by taking part in Robert Lee's care and treatment before his own and independent physician declared him dead."

Defendant ODA Did Not Attempt In Good Faith To Act In Accordance With The Provisions Of The Chapter At Issue

It is clear from the allegations of Plaintiff's complaint that Plaintiff is alleging that Defendant ODA violated numerous provisions of California law, and that ODA did not attempt in good faith to act in accordance with the provisions of the UAGA. Plaintiff alleges that ODA attempted to obtain her consent for organ donation when she was "in shock, and terribly upset." ODA repeatedly attempted to obtain her consent, after she already told them she had to leave and could not give consent.

Continue reading "Sacramento Woman Sues For Elder Abuse After Organs Illegally Removed, Part 3 of 11" »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

HEALTH AND SAFETY CODE SECTION 7155.5(c) DOES NOT BAR ANY OF THE CAUSES OF ACTION CONTAINED IN PLAINTIFF'S COMPLAINT

California Health and Safety Code section 7155.5(c) states as follows:

(c) A hospital, physician, surgeon, coroner, medical examiner, local public health officer, enucleator, technician, or other person, who acts in accordance with this chapter or with the applicable anatomical gift law of another state or a foreign country or attempts in good faith to do so is not liable for that act in a civil action or criminal proceeding.

Defendant's demurrer with respect to this section is based on misstatement of the allegations contained in Plaintiff's complaint and a misreading of the statute.

Defendant ODA Did Not Act In Accordance With The Provisions Of The Chapter At Issue

The chapter at issue as referenced by the statute is the Uniform Anatomical Gift Act, (California Health and Safety Code section 7150 et seq.). Plaintiff's complaint contains several allegations and causes of action which make it explicitly clear that Defendant Organ Donor Association and its agents, employees and co-conspirators did not act in accordance with the provisions of the Uniform Anatomical Gift Act ( UAGA ).

Continue reading "Man From Sacramento Dies During Surgery, Part 2 of 11" »

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

PLAINTIFF'S OPPOSITION TO DEFENDANT ORGAN DONOR ASSOCIATION'S DEMURRER TO FIRST AMENDED COMPLAINT

INTRODUCTION

For sake of brevity, Plaintiff will not repeat all the facts alleged in the complaint. Defendants wilfully misled Plaintiff about the condition of her son, and fraudulently obtained her consent to donate his organs. Defendants ignored Robert Lee’s doctors, who said he should not be a candidate for organ donation, and then violated California law and illegally injected him with lethal doses of drugs in an effort to hasten his death. Defendant David Hill has been charged with three felony counts by the Sacramento County District Attorney. This civil action is filed against all those who are responsible for what happened to Robert Lee.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF'S CAUSES OF ACTION AND RELATED FACTS ARE SUFFICIENTLY PLED

In a valiant effort to leave no stone unturned, Defendant ODA demurrers to literally every single cause of action contained in Plaintiff's complaint. Each argument made by Defendant to each cause of action shares something in common; they all lack merit. Defendant's demurrer should be overruled in its entirety.

Continue reading "Sacramento Family Sues Doctors For Wrongful Death, Part 1 of 11" »

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

OTHER OUT OF STATE CASES HOLD THAT AMUSEMENT PARK RIDES CAN BE CONSTRUED AS COMMON CARRIERS

Defendants cite cases from Georgia, Virginia, Iowa, Florida and Utah to make the argument that common carrier liability should not extend to operators or owners of an amusement park. As Plaintiff has demonstrated by the Elmer case, the most recent trend allows recovery for amusement rides under common carrier liability. Likewise, other states have held amusement rides to be common carriers. See e.g., Lyons v. Wagers (1966 Tenn. Ct. App.) 404 SW2d 270 (operator of amusement ride known as the Mary Mixer held to highest degree of care equivalent to that of a common carrier); Coaster Amusement Co. v. Smith (1940 Fla.) 194 So. 336 (operator of roller coaster held to highest degree of care equivalent to that of a common carrier); Bibeau v. Fred W. Pearce Corp., (1928 Minn.) 217 N.W. 374 (operator of roller coaster held to highest degree of care equivalent to that of a common carrier); Cooper v. Winnwood Amusement Co., (1932 Mo. Ct. App.) 55 S.W.2d 737 (operator of a roller coaster held to the highest degree of care for passenger safety); Sand Springs Park v. Schrader (1921 Okla.) 198 P. 983 (operator of a scenic railway held to the duty of highest care, skill and diligence).

The most recent case, Elmer v. Speed Boat Leasing, Inc., et al., supra, illustrated the connection of amusement rides to common carrier liability as demonstrated above. The court in Elmer relied on an out of state court decision, i.e. the Supreme Court of Colorado, as persuasive authority. While these court decisions are not binding on the Court in the present case, they should be heavily considered in weighing the decision to factor amusement park rides in as common carriers.

Continue reading "Sacramento-Area Amusement Park Sued By Family For Wrongful Death, 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 wrongful death/personal injury case and its proceedings.)

Additionally, the California Supreme Court addressed this very issue in Smith v. O'Donnell (1932) 215 Cal. 714, an airplane collision case. In Smith, the California Supreme Court held that an airplane sightseeing ride over the ocean beginning and ending at the Long Beach Airport should have common carrier liability imposed regardless of the departure and arrival having the same location.

Further, it would be unsound that two passengers seated side- by-side on a tour bus who might have been injured during the carriage would be entitled to different standards of care depending of where each departed. If defendants' argument is followed, a passenger who exists a tour bus before returning to the place of departure would be entitled to a higher standard of care, while the passenger who stayed on to return to the original point of departure would be, by virtue of the fact that he started and ended up at the same place, entitled to a lower standard of care.

A PASSENGER'S INTENT IS NOT DETERMINATIVE IN DECIDING WHETHER COMMON CARRIER STATUS ATTACHES

Defendants argue against the application of common carrier status to the Dinosaur Attraction on the basis that carriage on the ride is sought for entertainment rather than transportation purposes. However, the subjective intent of a passenger is not determinative of the level of care that should attach to a carrier. The court in Squaw Valley upheld common carrier liability against a ski-lift operator irrespective of the fact that undoubtedly people go to ski resorts for entertainment and thrills.

Continue reading "Sacramento Family Files Suit For Wrongful Death At Theme Park, 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 wrongful death/personal injury case and its proceedings.)

POINT OF DEPARTURE AND FINAL DESTINATION NEED NOT BE DIFFERENT TO WARRANT THE IMPOSITION OF COMMON CARRIER STATUS

Defendants argue that because the Dinosaur Attraction picks up and returns passengers to the same location it does not qualify as carriage in accordance with California's common carrier statute as the ride does not transport passengers from one place to another. The fact that the attraction may start and finish at the same location does not exempt it from common carrier liability.

As demonstrated above, the court in Elmer v. Speed Boat Leasing, Inc., et al., supra, held that despite the fact that the boat ride commenced and ended in the same location, common carrier liability still applied. Likewise, in the Buckskin Joe's case, the court did not find the absence of transporting the stagecoach from "point A to point B" to be a determining factor in its decision to uphold common carrier liability.

In its demurrer, defendants try to differentiate the Squaw Valley case to the present case by stating that under Civil Code §2168, an entity must transport goods or persons from place to place for profit. Defendants erroneously suggest that because the Dinosaur ride starts and finishes in the exact location, a common carrier liability theory is inapplicable.

Continue reading "Sacramento-Area Thrill Ride Leads To Wrongful Death, 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 wrongful death/personal injury case and its proceedings.)

The California legislature intended the definition of common carrier to be broad. Absent a specific exclusion from the statute, amusement park rides fall within this realm. Thus, the Dinosaur Attraction is likewise a common carrier for which Universal Theme Park owes a duty to use the utmost care and diligence to its guests. This duty is imposed upon them by Civil Code §2100.

Additionally, a California court upheld common carrier liability against a ski lift operator. Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal. App. 4th 1499. That court also stated that had the legislature intended to exempt chair-lift operators from common carrier status for the purpose of tort liability, it easily could have amended Civil Code §2168 to accomplish this objective. Id. at 1514. Ski-lift operators were not exempted from §2168, nor were amusement park operators. Until the legislature imposes this limitation, these entities can be subject to common carrier liability as long as they meet the requirements mentioned above.

MORE CASE LAW FAVORS PLAINTIFF'S POSITION THAT AMUSEMENT PARK RIDES SHOULD BE TREATED AS COMMON CARRIERS

As demonstrated by the court in Elmer, the split in authority whether amusement park rides and/or operators constitute common carriers tends to favor Plaintiff. Neubauer v. Disney, supra, identifies California cases which have further found attractions analogous to amusement park rides to be considered common carriers. For example, in McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489 the court found common carrier status in a guided tour mule ride which carried sightseeing passengers over a designated route between fixed points for a round trip fare. As noted above, the court in Squaw Valley found common carrier status on a chair lift carrying skiers at a fixed rate from the bottom to the top of the ski run.

Continue reading "Dinosaur Ride At Amusement Park Kills Sacramento Woman, 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 wrongful death/personal injury case and its proceedings.)

CALIFORNIA LEGISLATIVE INTENT DEMONSTRATES A BROAD DEFINITION UNDER THE COMMON CARRIER LIABILITY STATUTE TO ENCOMPASS AMUSEMENT PARK RIDES

California is unique in that it has a statute for common carrier liability and therefore does not need to rely solely on case law authority. California Civil Code §2100 states:
A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.

Civil Code §2168 defines who and/or what constitutes a common carrier in a tort action. This section states that everyone who offers to the public to carry persons, property, or messages, excepting only telegraph messages, is a common carrier of whatever of what he thus offers to carry. California has gradually adopted a broader definition of common carrier to encompass airplanes, buses, taxicabs, escalators, elevators, mule trains and ski-lifts. (Lopez v. Southern Calif. Rapid Transit Dist. (1985) 40 Cal. 3rd 780; Larson v. Blue & White Cab Co. (1938) 24 Cal. App. 2nd 576; Hendershott v. Macys (1958) 158 Cal. App. 2nd 324; Parker v. Manchester Hotel Co. (1938) 29 Cal. App. 2nd 446; McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489; Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal. App. 4th 1499).

Universal Theme Park amusement park rides have been held to be common carriers under California's broad statutory definition of a common carrier. See Neubauer v. Disney (C.D. Cal. 1995) 875 Fed. Supp. 672 (Universal Theme Park's "Pirate Ship" was held to be a common carrier falling within California's statutory definition of a common carrier). The Neubauer court found that under California law a duty of utmost care and diligence upon a common carrier of paying passengers applied to Universal Theme Park. The court relied on the California legislature's long history of broadly defining a common carrier.

Continue reading "Suit Filed For Wrongful Death Of Sacramento Woman At Theme Park, 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 wrongful death/personal injury case and its proceedings.)

In the present case, defendant erroneously argues that Ms. Demers' voluntary decision to ride the Dinosaur Attraction coupled with the fact that it was strictly for pleasure, disallows recovery under common carrier liability. Defendants' argument lays heavily in the fact that the Dinosaur Attraction starts and ends in the same location. However, an application of the reasoning in both Elmer and Buckskin Joe's to the case at hand clearly shows that Plaintiff has properly pled common carrier liability irrespective of destination and intention. Ms. Demers surrendered herself to defendants' custody and control when she placed herself on the ride, lost her freedom of movement and actions, and was a helpless passenger in the care of defendants. Ms. Demers could not have prevented the incident, nor was she in any way at fault in causing or contributing to her wrongful death.

This example is analogous to a passenger on an airplane. Should that airplane plummet to the ground, the passenger should not be held accountable simply because he voluntarily chose to board that particular airplane. Similarly, Ms. Demers' decision to ride the Dinosaur Attraction should in no way detract from Defendants' liability. Defendant had sole possession and power over her once the ride began and should be held accountable under the highest degree of care.

Continue reading "Woman From Sacramento Suffers Traumatic Brain Injury At Amusement Park, 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 wrongful death/personal injury case and its proceedings.)

This test, hereinafter referred to as the "Buckskin Joe's" test, is a critical factor in light of all the controversy surrounding common carrier liability. While many courts focus on the destination and/or intention of passengers, the Buckskin Joe's test narrows the focus to the heart of the issue, i.e., who had control of the situation, and who had the power to prevent and/or cause the injury.

The Buckskin Joe's case involves a stagecoach ride patterned after the historic stagecoach rides enjoyed by early settlers in Colorado. This ride commenced and ended in the same place. The ride consisted of horses drawing a stagecoach wagon along a designated path. The pace of the ride varied from a slow walk to a gallop, to give paying riders thrill and excitement, simulating the sensation of the old west. Regardless of the fact that the ride did not transport passengers from "point A to point B," and was purely for entertainment, the court still determined that the absence of freedom of movement and control warranted a finding of common carrier liability.

This concurs with Plaintiff's allegations that neither destination nor intention are determining factors in whether a ride is deemed a common carrier. Rather, the focus lays heavily on the operator of the ride, who is in control and who has the ability to prevent and/or cause the wrongful death/injury to riders. This is the crux of the Elmer case. (See Part 5 of 10.)

Continue reading "Deadly Sacramento-Area Amusement Park Ride Results In Traumatic Brain Injury, 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 wrongful death/personal injury case and its proceedings.)

DEFENDANTS OWED DECEDENT THE HIGHEST STANDARD OF CARE UNDER COMMON CARRIER LIABILITY BECAUSE DECEDENT LOST HER FREEDOM OF MOVEMENT AND ACTION ONCE SHE WAS PLACED IN DEFENDANTS' CUSTODY

In the most recent decision involving an amusement ride, a Texas appellate court found an operator of a business providing speed boat rides for amusement to be held liable under a common carrier theory for personal injuries suffered by the appellant on the boat ride. Elmer v. Speed Boat Leasing, Inc., et al. (2002) Tex. App. LEXIS 4670. The boat ride was designed solely for the purpose of providing an exciting and fun-packed ride. Its destination commenced and ended in the same location. Irrespective of these facts, the court reversed the district court's decision and remanded the cause for a new trial, finding that the defendant owed a high standard of care rather than merely a standard duty of care under a common carrier liability theory.

The Elmer case is the latest case to analyze the trend across the United States regarding the application of common carrier liability to amusement rides. The court recognized the split in authority whether amusement park rides should be properly labeled as common carriers. After extensive and widespread research of existing cases, the court determined the better reasoned cases upheld common carrier liability for amusement rides. The court was especially persuaded by the reasoning in Lewis v. Buckskin Joes's, Inc. (Colo. 1964) 396 P.2d 933 (the Supreme Court held that the highest standard of care should be applied to amusement rides). As stated, the court in Elmer endorse[d] the rationale of those courts which have held amusement ride operators to a higher standard of care. Tex. App. LEXIS 4670 at 10. The court found:
While appellees have argued, and some courts have stated, that amusement ride operators are not common carriers because they do not offer transportation from one locale to another, we find that reasoning unpersuasive... Instead, we find persuasive the analysis of the Supreme Court of Colorado, which stated:

Continue reading "Woman Sues Sacramento-Area Theme Park Over Deadly Ride, 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 wrongful death/personal injury case and its proceedings.)

SUMMARY OF FACTS
This is an action for damages for wrongful death brought by the personal representative of the Estate of Claudia Demers, on behalf of the Estate and on behalf of the heirs of Claudia Demers against various separate and distinct corporations affiliated with The Universal Co. One of the Defendants is Universal World Co., the admitted owner and operator of Universal Theme Park.

One of the theories of liability alleged against Universal World Co. is based upon common carrier liability pursuant to Civil Code §2100 and §2101. Plaintiff will demonstrate how common carrier liability attaches to Universal World Co. with respect to the Dinosaur Attraction.

PLAINTIFF HAS PLED SUFFICIENT FACTS IN ITS COMPLAINT TO CONSTITUTE A CAUSE OF ACTION PURSUANT TO CCP SECTION 430.10.

In the fourth and fifth causes of action, dealing with common carrier liability, Plaintiff has alleged that certain of the Defendants operated the Dinosaur Attraction at Universal Theme Park. The Dinosaur Attraction is described as consisting of a vehicle, referred to as a dynamic ride vehicle, which is used to enhance the sensation of vehicular motion and travel that passengers in the vehicle experience. Paragraph 49 of Plaintiff's Second Amended Complaint states that the vehicle used in the Dinosaur Attraction is used to transport passengers while, at the same time, providing them with entertainment and thrill. The configuration of the vehicle resembles an off-road jeep. The vehicle moves along a predetermined path on a track.

Continue reading "Theme Park Ride Results In Wrongful Death Of Sacramento Woman, 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 wrongful death/personal injury case and its proceedings.)

Plaintiff's Opposition to Defendants' Demurrer to Plaintiff's Second Amended Complaint

MEMORANDUM OF POINTS AND AUTHORITIES
SUMMARY OF ARGUMENT

This is an action for damages arising out of the injury to, and subsequent wrongful death of, Claudia Demers. On June 25, 2000, Ms. Demers, a young Sacramento woman on her honeymoon, rode the Dinosaur Attraction at Universal Theme Park. As a result of the unsafe and violent nature of the ride, she suffered a subarachnoid hemorrhage and hydrocephalus that required extensive hospitalization and multiple brain surgeries. She died of these injuries after incurring over $1 million in medical expenses.

The Complaint in this action was originally filed on September 25, 2001. Defendants thereafter filed a Notice of Removal of this action to federal court. That removal was untimely and ultimately a stipulation to remand the matter back to state court as signed by the Defendants and the Plaintiff, and Defendants paid to Plaintiff's counsel attorneys fees and costs in the amount of $2,850.00 for the untimely removal.

Plaintiff filed a First Amended Complaint for damages on or about January 30, 2002. Defendants filed a Demurrer June 7, 2002. The Court granted part of the demurrer allowing Plaintiff ten days for leave to amend the Complaint. Plaintiff filed a Second Amended Complaint on September 3, 2002.

Defendants filed another demurrer alleging that despite Civil Code §2100 and §2101, and the cases interpreting those Code sections, they cannot be held liable under common carrier law.

Continue reading "Sacramento Woman Dies At Amusement Park, Part 1 of 10" »