Sacramento Medical Malpractice 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 personal injury lawsuit and its proceedings.)

Not long ago, the U.S. Supreme Court, in Tory v. Cochran (2005) 542 U.S. 965, struck down an injunction issued by a judge of this court (and upheld by the Court of Appeal), prohibiting petitioners from picketing, displaying signs, placards or other written or printed material, and from orally uttering statements about one Johnnie L. Cochran, Jr., and about Cochran's law firm in "any public forum."

In so holding, the Supreme Court found that the injunction ... amounts to an overly broad prior restraint upon speech, lacking plausible justification, and that "Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." (Tory. supra)

Then, just three years ago, in ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 135 Cal.App.4th 841, Justice Epstein, for Div. 4 of our 2nd District, affirmed a courageous (conservative Republican) judge, (Stephen Peterson, who sits in Van Nuys) who held unconstitutional, strictly on 1st Amendment grounds, Civil Code. Section 2527, a statute compelling speech, with severe consequences for its violation.

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

Continue reading " Birth Injuries Suffered By Sacramento Girl Lead To Medical Malpractice Lawsuit, Part 5 of 5 " »

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 personal injury lawsuit and its proceedings.)

IT IS APPROPRIATE FOR A PLAINTIFF TO INCLUDE A PRAYER FOR A SPECIFIC DOLLAR AMOUNT. AS WELL AS A PRAYER FOR PUNITIVE DAMAGES. AS CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 425.13(a) (AS IS C.C.P. SECTION 425.10) IS PATENTLY UNCONSTITUTIONAL

Preventing plaintiffs from stating the amount of damages they seek violates a litigant's First Amendment right to free expression, as the two cited statutes command prior restraint on freedom of expression.

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

To put this matter in perspective, we start with the dissenting opinion of our late, beloved Justice Mosk, who, more than a decade past, in Schwab v. Rondel Homes, Inc. (1991) 53 Cal. 3d 428, 440-441, 280 Cal.Rptr. 83, wrote:

"A statutory scheme that forbids a party to provide useful information-a form of compulsory silence-and that creates anomalous results ... urgently needs reexamination. Moreover, in a newsworthy case, a lawyer or party can always call a press conference and trumpet the claims to the heavens, or at least to the terrestrial media. Thus, not only are (Code of Civil Procedure) sections 425.10 and 425.11 bad law and bad policy, they are an ineffective means of implementing the legislature's apparent intent. Nor can they be made effective: I cannot conceive of legislation that could constitutionally prevent plaintiffs with sensational personal injury damage claims from announcing those claims in any forum whatsoever."

Time marches on.

Continue reading " Punitive Damages Sought Against Sacramento Physician for Malpractice, Part 4 of 5 " »

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 personal injury lawsuit and its proceedings.)

PLAINTIFF HAS PLEADED EACH AND EVERY ELEMENT OF A CAUSE OF ACTION
FOR WILLFUL MISCONDUCT

Defendants Stanley Black, M.D. and ABC Medical Group next demur to Plaintiff's third cause of action, for Willful Misconduct.

Defendants' demurrer is replete with colloquy about how plaintiff has failed to plead any facts demonstrating that defendants' conduct rose above the level of mere negligence. Defendants Black and ABC Medical Group have offered no judicial authority as to just why plaintiff's pleaded claim for willful misconduct fails to meet the requirements of that well accepted tort.

The elements of willful misconduct are as follows:

1. Actual or constructive knowledge of the peril to be apprehended;2. Actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and3. Conscious failure to avoid the peril.(Witkin, 6 Summary of California Law, 9th edition, Torts, section 761)

This standard was tested in New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681. New involved two motorcyclists who sued a landowner to recover for injuries sustained while they were riding their motorcycles on defendant's property.

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

Continue reading " Sacramento Family Sues Doctor for Birth Injuries, Part 3 of 5 " »

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 personal injury lawsuit and its proceedings.)

LEGAL ARGUMENT

IT IS WELL SETTLED THAT INCONSISTENT PLEADINGS ARE PERMITTED

Defendants' Stanley Black, M.D., and ABC Medical Group's demurrer to Plaintiffs Complaint is based (initially) on the grounds that Plaintiffs first cause of action, for medical negligence, is duplicative of Plaintiff's second cause of action for Wrongful Birth.

It is well established that a plaintiff is entitled to plead inconsistent causes of action. Rader Co. v. Stone (1986) 178 Cal.App.3d 10.

Rader Co., supra, involved an appeal from an Order of dismissal following the sustaining of demurrers, without leave to amend.

In holding that inconsistent causes of action are appropriate, the Rader Co., supra, court, stated, at p.29, of 178 Cal.App.3d, as follows:

Moreover, Rader is not precluded by law from alleging in one cause of action the breach of a contract and an inconsistent theory of recovery in another cause of action. To the extent Rader's allegation in one cause of action of a fully executed contract with Stone is at odds with an allegation in a separate cause of action that PSR interfered in Rader's advantageous relationship with Stone, such inconsistency is not fatal to Rader's claims at the pleading stage, as "a plaintiff is permitted to plead inconsistent or ..., alternative counts." (Rader Co., supra at p.29, Emphasis Added, citing Skelly v. Richman (1970) 10 Cal.App.3d 844)

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

Continue reading " Doctor At Sacramento Hospital Commits Malpractice, Part 2 of 5 " »

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 personal injury lawsuit and its proceedings.)

Plaintiff, by counsel, serves and files this Memorandum of Points and Authorities in Opposition to Defendants Stanley Black, M.D. and ABC Medical Group's Demurrer to, and Motion to Strike portions of Plaintiffs Complaint.

POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS STANLEY BLACK, M.D, AND ABC MEDICAL GROUP'S DEMURRER TO AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

INTRODUCTORY STATEMENT

In response to Plaintiff's Complaint, defendants Stanley Black, M.D., and ABC Medical Group have filed a demurrer to, and Motion to Strike portions of, Plaintiff's Complaint.

Defendants Black and ABC Medical Group argue that Plaintiff's First Cause of Action, for medical negligence, on the grounds that it duplicates the Second Cause of Action, for Wrongful Birth.

As will be seen from the following Points and Authorities, inconsistent pleadings have long been permitted, and therefore defendants Black and ABC Medical Group's demurrer, upon grounds of inconsistency, is without merit.

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

Continue reading " Sacramento Hospital Sued for Medical Malpractice, Part 1 of 5 " »