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.

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.)

Although, out of context, the terms full-body physical therapy and the absence of special precautions do exist in the cited passage, it is clear from the outset that Dr. Lee did not want any therapy done on the neck. As he said, above Very important now. I say again, therapy is not for neck. The contrary claim by Plaintiffs is simply an attempt to falsely re-characterize very clear testimony. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It should also be noted that Plaintiffs' only standard of care expert, Dr. Goldstein, testified specifically as to the nature of physical therapy that he would criticize at one point in his trial testimony, and that was as follows (Reporter's transcript, page 160, line 28 to page 161, line 5):

Q. [by Mr. Howard] All right. And did you find that Dr. Lee had done any of these things?
A. No. And actually ordering physical therapy probably wasn't a good idea. Generally speaking, if someone has a possibility of a broken neck, I would not order physical therapy of the neck.

Continue reading " Doctor's Negligence Leads To Wrongful Death Of Sacramento Patient, Part 4 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.)

PLAINTIFFS APPEAR TO MISUNDERSTAND THE LEGAL REQUIREMENTS FOR A JUDGMENT NOTWITHSTANDING OF THE VERDICT

As mentioned in Defendant's previous filing, a JNOV must be denied if there is ANY substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict. See authorities cited therein.

Instead, ignoring the testimony cited in the prior Opposition, Plaintiffs appear to argue that there was evidence that COULD support a verdict for the Plaintiffs, and base their arguments for both motions thereon. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Unfortunately, even the cited testimony is mischaracterized in their moving papers.

Physical Therapy Order By Dr. Lee

First, Plaintiffs claim (Points and Authorities, pg. 5, lines 15-17) that Dr. Lee's treatment plan was overall full body physical therapy... [Emphasis added], appearing to suggest that the plan included physical therapy of the neck.

Continue reading " Sacramento Man Dies After Medical Malpractice, Part 3 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.)

MEMORANDUM OF POINTS AND AUTHORITIES

BOTH OF PLAINTIFFS' MOTIONS SHOULD BE DENIED AT THE OUTSET BECAUSE PLAINTIFFS HAVE ENTIRELY FAILED TO FILE THEIR SUPPORTING MEMORANDA OR OTHER DOCUMENTATION WITHIN THE REQUIRED TIME LIMITS

As mentioned in Defendant's prior filing, California Code of Civil Procedure, Section 629, requires that the entire Motion for Judgment Notwithstanding the Verdict (hereinafter, JNOV ) be filed at the same time as the Notice of Intent to Move for a New Trial. Other than the brief reference to a JNOV in the Notice, as cited above, no supporting documentation was presented for such a motion. Based upon that failure alone, the Motion for JNOV should be denied.

Now, Plaintiffs have similarly failed to comply with applicable time limits in which to file supporting documents for their Motion for New Trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Wrongful Death Of Sacramento Man Follows Trip And Fall, Part 2 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.)

Defendant John Lee, M.D.'s Opposition to Motion for New Trial (Supplemental); Memorandum of Points and Authorities in Support Thereof

SUPPLEMENTAL INTRODUCTION

Counsel for Plaintiffs served his Notice of Intention to Move for New Trial, which included reference to “The motion for judgment notwithstanding the verdict,” but which included no Memorandum of Points and Authorities, and no citations whatsoever to any testimony from the trial.

Because of the rapidly approaching March date for hearing on Plaintiffs' motions for JNOV and new trial, counsel for Defendant filed an opposition to both motions, based on information available at that time and arguments by Plaintiffs suggested in the Notice of Motion. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Sacramento Family Seeks New Trial In Wrongful Death Case, 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, 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 brain injury case and its proceedings.)

Mr. Lee alleges that he saw thick meconium, decreased fetal heart rate, and his son born lifeless. As a layperson, he could not have known at the time that the injury was caused by the medical treatment being rendered. For a layperson, seeing thick meconium, decreased fetal heart rate, and a child born "lifeless" does not amount to the layperson's contemporaneous awareness of the cause of the injury. The key element missing in this case as set forth by the Court in the Thing case is that the plaintiff "is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim." Mr. Lee was present and he witnessed some events, but he has alleged no facts by which he could have been aware at the time that any conduct on the part of the defendants was causing injury to the child.

Mr. Lee witnessed various symptoms, and he may have even witnessed the injury-producing event, but he did not know, at least based on what is alleged, that he knew at the time that what he was witnessing was conduct on the part of Dr. White that was causing injury to his son. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The issue ultimately comes down to whether the father could have known that the child was being injured by conduct on the part of Dr. White, and not merely suspected that the child was being injured. Like Mr. Lee, both fathers in the Justus case suspected that their children were being injured during the delivery, but they did not know that they were being injured.

Continue reading " Sacramento Newborn Suffers Brain Injury Due To Doctors' Malpractice, Part 7 of 7 " »

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 brain injury case and its proceedings.)

The complaint alleges that the father witnessed "thick meconium" during the labor and that he knew the meconium was impeding his son's breathing ... (Paragraph 44.) However, the complaint is silent as to how the father knew the significance or the effect of meconium at the time. It is not alleged that the father is a health care provider or has any background by which he would know that witnessing thick meconium would cause a lack of oxygen to the child's brain. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The plaintiff alleges that he witnesses his son's heart rate decrease. (Paragraph 45.) However, as noted above, the father in the Justus case witnessed "the diminution of the fetal heart tones," but even that did not give rise to the NIED cause of action. Id. at 584.

The plaintiff also alleges that he witnessed his son to be "lifeless and in severe distress" (paragraph 45), but that is no different that the father in Justus who aw the manipulation of the fetus with forceps and by hand, and the emergency procedures performed on his wife in connection with the attempted Cesarian section. Id. at 584.

Continue reading " Sacramento Child Suffers Brain Injury Due To Physicians' Medical Negligence, Part 6 of 7 " »

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 birth injury case and its proceedings.)

In Justus v. Atchison (1977) 19 Cal.3d 564, the California Supreme Court made it clear that a layperson's witnessing events during delivery does not give rise to a cause of action for NIED, because a layperson is not aware of the significance of the events. Justus involved two factually similar actions for medical malpractice and wrongful death, each predicated on alleged negligence occurring during delivery. The fathers in both actions sought to recover for NIED for what they witnessed during the delivery, but the Supreme Court held that they did not have a cause of action. The Court succinctly summarized the facts of the two cases, which are remarkably similar to the facts in the instant action:

Each plaintiff-husband asserts he was present in the delivery room and in close proximity to his wife, and observed the defendants ministering to the latter. In Justus, plaintiff then alleges he saw the manipulation of the fetus with forceps and by hand, and the emergency procedures performed on his wife in connection with the attempted Cesarian section. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Parents Witness Botched Delivery Of Child In Sacramento Hospital Then Sue For Malpractice, Part 5 of 7 " »

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 birth injury case and its proceedings.)

The Court in Bird cited approvingly (at 921) the case of Golstein v. Superior Court (1990) 223 Cal. App.3d 1145, in which the plaintiffs were the surviving parents of a nine-year-old boy who died as the result of the negligent administration of an overdose of radiation while undergoing treatment for curable cancer.

Although they were present and witnessed the results of the negligent over-radiation, and although they observed the deteriorating and worsening condition of their son on a daily basis as well as his pain and suffering up to the time of death, the court of appeal held that the plaintiffs could not recover on a bystander theory because the plaintiffs did not experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury. Id. at 1427. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Parents File Action Against Sacramento Hospital For Emotional Distress Due To Child's Birth Injury, Part 4 of 7 " »