Sacramento Medical Malpractice Lawyer Blog

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

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 a personal injury case present such issues to the court.

In Morales v. Thompson (1959) 171 Cal. App.2d 405, 407, the appellate court, citing former Vehicle Code section 488 (the predecessor to V.C. section 20013), noted that "the trial court properly precluded a police report plaintiff's attorney sought to introduce..." As explained in Summers v. Burdick (1961) 191 Cal. App.2d 464, 470, Vehicle Code sections 488 and 488.5 (now sections 20012 to 20015, inclusive), preclude police reports from being admitted into evidence.

In addition, any witness statements contained within the report are inadmissible hearsay, and not subject to any recognized exception. Evidence Code section 1200, et seq.

Not only is the traffic collision report inadmissible, but the plaintiff should be precluded from introducing statements contained therein through the back door by way of their experts. As explained by the court in the recent case of Garibay v. Hemmat (2008) 161 Cal. App.4th 735, 743, an "expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural..." The expert in that case based his opinions from medical records which were hearsay, and therefore, the court concluded that the expert's opinion based on assumptions of fact without evidentiary support has no evidentiary value. Id.

The court in Garibay disapproved of the back door method of admitting otherwise inadmissible evidence through experts: Physicians can testify as to the basis of their opinion, but this is not intended to be a channel by which testifying physicians can place the opinion of out-of-court physicians before the trier of fact. Id. In other words, experts should not be used as a method to put inadmissible evidence before the jury. "[T]he expert's opinion may not be based on assumptions of fact without evidentiary support..." People v. Richardson (2008) 43 Cal.4th 959.

Continue reading " Sacramento Traffic Collision Report Subject Of Scrutiny In Medical Malpractice Case, Part 2 of 2 " »

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

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 a personal injury case present such issues to the court.

Motion in Limine to Preclude Evidence of Traffic Collision Report

Defendants, X, Y, Z Medical Center and Edward W., M.D., hereby move for an in limine order precluding evidence of the traffic collision report prepared in regard to the Sacramento traffic accident giving rise to this accident. This motion is based on the grounds that the traffic collision report is not admissible as evidence pursuant to Vehicle Code section 20013, and on the grounds that the witness statements contained therein are inadmissible hearsay. It is also based on Evidence Code section 352.

The defendants request that the plaintiff be precluded from introducing the traffic collision report into evidence and that her counsel be precluded from exhibiting the report to the jury during the trial. The defendants also request that the plaintiff's witnesses, including experts, be precluded from referencing the report and the contents thereof in their testimony and from basing any opinion on the contents of the report.

MEMORANDUM OF POINTS AND AUTHORITIES
I.
THE TRAFFIC COLLISION REPORT IS INADMISSIBLE

This medical malpractice action arises out of an auto versus pedestrian accident that occurred on July 2, 2006. Following the accident, a law enforcement officer investigated, and a traffic collision report was prepared.

That report is inadmissible, pursuant to Vehicle Code section 20013, which provides, No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident... In Box v. California Date Growers Ass'n (1976) 57 Cal. App.3d 266, the appellate court held that the trial court properly refused to admit into evidence either the police accident report or the diagram portion thereof.

Continue reading " Sacramento Auto Accident Victim Sues For Medical Malpractice, Part 1 of 2 " »

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

The following four blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.

SPECIAL INSTRUCTION #1 MUST BE USED BECAUSE THERE IS NO CACI INSTRUCTION THAT INFORMS THE JURY OF THE PLAINTIFF'S BURDEN IN ESTABLISHING CAUSATION

The other CACI instructions (CACI 400, as modified by CACI 500, and CACI 200) instruct the jury that the plaintiff must establish causation, but they do not instruct the jury as to what satisfies causation here. Plaintiffs incorrectly assert that establishing the burden of proof for the overarching action is equivalent to explaining the standard for causation.

Further, plaintiffs' assertion that the phrase reasonable medical probability would be unduly confusing to the jury is without merit. Medical probability is not legalese; it is simply using the additional word medical to demonstrate that the probability must be judged by a medical professional rather than a layman. Any jury instruction contrary to Special Instruction #1 would provide the jury with a clear understanding of an incorrect burden of proof.

Continue reading " Sacramento Plaintiff Must Prove Causation In Medical Malpractice Action, Part 4 of 4 " »