Sacramento Medical Malpractice Lawyer Blog

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

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

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 Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

While there is no general rule for what qualifies an individual under section 720(a) to render an expert opinion in a medical malpractice case, the Supreme Court explained that the expert must have a general foundation for his testimony, basic education, training, occupational experience as well as practical knowledge of what is customarily done by the health care provider under similar circumstances:
The proof of that standard is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wigmore has classified as occupational experience - the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood.

Continue reading " Injured San Francisco Woman Files Suit Against Her Chiropractor, Part 4 of 9 " »

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

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

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 Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

As the above facts show, Plaintiff is currently suffering from ongoing psychological problems which he traces to his CRPS/RSD injury. These psychological problems are such that he has attempted suicide twice, has received several weeks of inpatient psychiatric care, and has received ongoing outpatient psychiatric care and mental health counseling. These psychological problems are also the reason Plaintiff has given for being unable to complete his deposition in this case. Defendant respectfully submits that Mr. Smith's mental health is undeniably at issue in this case and that good cause exists for a mental examination. This examination would be performed by a licensed psychiatrist, David Black, M.D., in San Jose, California.

CONCLUSION

For the reasons set forth above, Defendant requests an order requiring Plaintiff Randall Smith to undergo a mental examination by David Black, M.D., a psychiatrist, at Dr. Black’s office located in San Jose, CA.

Continue reading " Patient In San Jose Develops Complex Pain Syndrome Due To Medical Malpractice, Part 4 of 4 " »

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 present such issues to the court.

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

Expert Review of the Instant Case Establishes that the Conduct of Dr. Lee Did Not Cause Plaintiff's Alleged Injuries.

In a personal injury action, causation must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. Jones v. Ortho Pharmaceutical Company (1985) 163 Cal.App.3d 396, 402 02 (citations omitted); Dumas v. Conney (1991) 235 Cal.App.3d 1593, 1603. Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. Budd v. Nixon (1971) 6 Cal.3d 195,200. In Dumas, the court declined to establish a more lenient standard of causation in medical malpractice cases to account for the theory of lost chance:

Relaxing the causation requirement might correct a perceived unfairness to some plaintiff who could prove the possibility of the medical malpractice cause and injury but could not prove the probability of causation, but at the same time could create injustice. Health care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result.

Continue reading " Sacramento Man Left Disabled Due To Surgical Malpractice, Part 8 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.

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

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 Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Only an expert can determine what relationship Plaintiff’s mental health problems have to his CRPS/RSD, and/or whether they are related to or caused by pre-existing mental health issues. Defendant understands that Plaintiff may attempt to present Plaintiff's severe mental health problems at trial as side effects of his CRPS/RSD, and as a component of his damages. As such, a mental examination of Mr. Smith is necessary to Defendant's defense. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Defendant therefore requests a court order allowing plaintiff to undergo a psychiatric examination by David Black, M.D., a psychiatrist, in San Jose, California. Defense counsel understands that the examination will involve a discussion between Plaintiff and Dr. Rappaport regarding Plaintiff's relevant personal, medical and mental health history and his ongoing mental health problems and medical and psychological stressors.

Continue reading " Hospital In San Jose Sued For Medical Malpractice, Part 3 of 4 " »

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 present such issues to the court.

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

Additionally, it is well settled that:

California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. Munro v. Regents of the University of California, supra, 215 Cal.App.3d at pp. 984-985 (quoting Hutchinson v. United States (1988) 838 F.2nd 390.) [Emphasis added.]

Expert Review of the Instant Case Establishes that the Conduct of Dr. Lee Was Within the Community Standard of Care.

The instant case is a medical malpractice action involving allegations which are beyond a layman's knowledge. Thus, under Landeros and Munro, whether or not the care ar d treatment rendered by Dr. Lee was within the standard of care is a matter exclusively with: In the province of expert testimony. Therefore, Dr. Lee supports his motion with an expert declaration from Robert White, M.D. establishing that the care and treatment rendered by him was within t he standard of care for a vascular surgeon.

Continue reading " Sacramento Man Suffers Multiple Injuries Due To Medical Malpractice, Part 7 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.

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

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 Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

The role of expert testimony in a medical malpractice action was explained in Willard v. Hagenmeister, (1981) 121 Cal.App.3d 406:

Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of care and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skills is not a matter of general knowledge and can only be supplied by expert testimony. Willard, supra, at page 412; citations omitted. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

See also Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943 (holding that the standard of care in a professional negligence case can be proven only by expert testimony); Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1250-1251 (discussing presentation of expert testimony with respect to the standard of care in an elder abuse case.)

Continue reading " San Francisco Chiropractor Fights Expert In Malpractice Lawsuit, Part 3 of 9 " »

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

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

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 Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

As far as Defendant is aware, Plaintiff continues to have ongoing mental health problems. Plaintiff has asserted these problems as the reason why he has not yet completed his deposition in this case. Plaintiff's complaint alleges that, because of Defendant's alleged negligence, he is going to be required to seek medical and/or psychological services in the future. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff has testified in his deposition that he has a pre-existing history of depression which was debilitating enough to cause him to miss work and to receive social security disability. Defendant's medical records suggest other pre-existing mental health problems. Defendant has not been able to fully question Plaintiff about these matters, because Plaintiff has been unavailable for his deposition.

Because Plaintiff has ongoing psychiatric problems, which he alleges are related to, or caused by, his alleged CRPS/RSD, Defendant requested in November 2008 that Plaintiff stipulate to a mental examination. Plaintiff's counsel refused.

Continue reading " San Jose Doctors Sued For Medical Malpractice, Part 2 of 4 " »

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

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

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 Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

DR. STRONG IS NOT QUALIFIED TO RENDER EXPERT OPINION TESTIMONY AS TO THE STANDARD OF CARE APPLICABLE TO DEFENDANTS

To prevail against Defendants in this professional negligence action, Plaintiff has the burden of proving that Defendants' care and treatment fell below the standard of care, and further, that Defendants' conduct, if below the standard of care, caused or substantially contributed to Plaintiff's alleged injuries. The prevailing standard of care applicable to defendants can be introduced only through the use of qualified expert testimony. Flowers v. Torrance Memorial Medical Center, 8 cal.4th 992 (1994); Munro v. Regents of the University of California, (1989) 215 Cal.App.3d 977, 983-984; and Jones v. Ortho Pharmaceutical Corp. (1985) 63 Cal.App.3d 396, 402. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

The requisite standard of care is determined by the applicable standard of care that exists in a particular professional community. Barton v. Owen (1977) 71 Cal.App.3d 484. Thus, a health care provider is only required to exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances Mann v. Cracchiolo, (1985) 38 Cal.3d 18, at 36.

Continue reading " Woman Requires Surgery After Malpractice By San Francisco Chiropractor, Part 2 of 9 " »

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 present such issues to the court.

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

UNCONTRADICTED EXPERT TESTIMONY ESTABLISHES THAT THE CARE AND TREATMENT RENDERED BY DR. LEE WAS WITHIN THE STANDARD OF CARE AND DID NOT CAUSE PLAINTIFF'S ALLEGED INJURIES

The Accepted Standard of Care in Medical Malpractice Actions Must Be Established By Qualified Experts.

In a medical malpractice action based on professional negligence, a plaint must establish the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; a breach of that duty; a proximate causal connection between the negligent conduct and the resulting injury; and actual loss or damage resulting from the professional's negligence. Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230. When the defendant is accused of failing to adhere to accepted standards of practice, such standards may be established only by qualified expert testimony. Stephenson v. Kaiser Foundation Hospital (1961) 203 Cal.App.2d 631, 635.

Specifically, the inherent nature of a medical malpractice action, along with the applicable standards of care, involve subject matter that is beyond the competency of laymen to address and therefore, must be addressed by a qualified expert. Landeros v. Flood (1976) 17 Cal.3d 399, 410.

Continue reading " Physicians and Surgeons From Sacramento Hopsital Must Defend Malpractice Action, Part 6 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.

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

Defendant Universal Medical Center ("Defendant") moves for a mental examination of plaintiff Randall Smith ( Plaintiff) by David Black, M.D., a psychiatrist, at his office located in San Jose, California.

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 Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

FACTUAL BACKGROUND

This is a medical negligence case. Plaintiff Randall Smith claims to have developed complex regional pain syndrome ( CRPS ), also known as reflex sympathetic dystrophy ( RSD ), from an IV needle insertion he received prior to undergoing an endoscopy on December 7, 2006, at General Hospital, part of defendant Universal Medical Center. Plaintiff claims that his CRPS/RSD went undiagnosed until January 24, 2007. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff has sought, and alleges that he will be required to seek, psychological services because of his alleged CRPS/RSD. In early January 2007, he sought psychiatric treatment at ABC Psychiatric Facility, because he experienced suicidal and homicidal thoughts related to his pain after the above IV placement. Both Plaintiff’s counsel, and his medical records, disclose that in September or October, 2008, Plaintiff sought inpatient psychiatric care, apparently because Plaintiff attempted suicide.

Continue reading " San Jose Man Files Medical Malpractice Suit, Part 1 of 4 " »

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

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

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 Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

PLEASE TAKE NOTICE PLEASE TAKE NOTICE that Defendants, Paul Davis, D.C. and Universal Chiropractic, Inc. (hereinafter "Defendants"), hereby move this Court in limine before jury selection or the trial's commencement for an order precluding Plaintiff's expert, Steven Strong, M.D., from providing any standard of care testimony against Defendants on the ground that Dr. Strong is not qualified to render such opinions. This motion is based upon the accompanying Memorandum of Points and Authorities, the records and files of this action, and such further evidence or argument as may be submitted before or at the time of the hearing of this matter. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiff, Sylvia White (hereinafter "Plaintiff"), sought chiropractic care and treatment with Defendant, Paul Davis, D.C., at his facility, Universal Chiropractic, Inc., on an intermittent basis between July 2004 and October 2006. Plaintiff filed an action for professional malpractice against the defendants based on professional malpractice and intentional infliction of emotional distress related to the underlying alleged malpractice.

Continue reading " San Francisco Woman Sues Chiropractor For Malpractice, Part 1 of 9 " »

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 present such issues to the court.

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

SUMMARY JUDGMENT IS APPROPRIATE WHEN THERE IS NO TRIABLE ISSUE AS TO ANY MATERIAL FACT

California Code of Civil Procedure Section 437(c)(f) provides authority for the grant of summary judgment if a party contends the cause of action (for medical malpractice) has no merit.

The entry of summary judgment is mandatory where the documents disclose no triable issue of material fact. Kraslev v. Superior Court (1980) 101 Cal.App.3d 425, 432. A defendant is entitled to summary judgment where the record establishes, as a matter of law that a cause of action asserted against him cannot prevail. County of Los Angeles v. Security Insurance Comparny of Hartford (1975) 52 Cal.App.3d 808, 816.

A defendant has met his or her 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 cannot be established. (Code Civ. Proc. §437c(o)(2)) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exist is to that cause of action. Munro v. Regents of University of California (1989) 215 Cal.App.3d 977. In Fraser Dame, etc. v. Bacarro Blum, etc. (1977) 70 Cal.App.3d 331, 338, the court stated:

Continue reading " Sacramento Hospital Sued For Medical Malpractice, Part 5 of 8 " »