B. THE JUDGE HAS REPEATEDLY ABDICATED HIS RESPONSIBILITIES AS JUDGE AND DELEGATED SOLE ARBITRARY AUTHORITY TO THE DEFENSE TO SCHEDULE THE DATES OF ALL OF PLAINTIFF'S DEPOSITIONS OF DEFENSE EXPERTS

Plaintiff hereby incorporates by reference thereto the Declaration of John J. Green in support of this objection.

On at least two occasions Plaintiff applied to the Court to required the Defendant to present himself and his medical malpractice experts for depositions in a more timely manner, instead of setting the depositions for weeks and months after the date set forth in Plaintiff's notice. On each occasion Judge Smith absolutely refused to hear much less requested an explanation from defense counsel (Betty Howe) as to why the depositions had been scheduled so for out, but simply told her to get the best dates available and confirm them with Plaintiff's counsel by 5 pm today . On each occasion defense counsel contacted Plaintiff's counsel with the same dates that she had previously offered and Plaintiff's counsel was thereby forced to accede to dates that pushed his discovery up to July 13 with a July 27 trial call.

Likewise at the July 5, 2005 hearing the Judge improperly violated Plaintiff's constitutional rights to due process by first taking up defense counsel's request that Plaintiff's noticed depositions of treating experts be limited in time and that the location be changed. No prior notice had been given that any such request would be made, only a frivolous request to quash the depositions. The Judge ignored Plaintiff's objection on due process grounds and without giving Plaintiff's counsel an opportunity to object quickly agreed with an attorney for Dr. Brown that the latter's deposition be taken at the latter's office and limited to two hours.

MEMORANDUM OF POINTS AND AUTHORITIES

Cal. Code of Civil Procedure 170.1 provides:
(a) A judge shall be disqualified if any one or more of the following is true: ...(6) For any reason (A) the judge believes his or her recusal would further the interests of justice, (B) the judge believes there is a substantial doubt as to his or her capacity to be impartial, or (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. Bias or prejudice towards a lawyer in the proceeding may be grounds for disqualification.

Cal. Code of Civil Procedure 170.3 provides:

(a) (1) Whenever a judge determines himself or herself to be disqualified, the judge shall notify the presiding judge of the court of his or her recusal and shall not further participate in the proceeding, except as provided in Section 170.4, unless his or her disqualification is waived by the parties as provided in subdivision (b).

Canons of Code of Judicial Ethics provides:

Canon 1. A judge shall uphold the integrity and independence of the judiciary.

Canon 2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.

Canon 3. A judge shall perform the duties of judicial office impartially and diligently.

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

Evidence set forth in the declaration of John J. Green filed with this objection establishes that the Judge repeatedly and knowingly:

a. violated Plaintiffs' rights due process;

b. violated controlling statute and case authority in an effort to frustrate and delay Plaintiff's trial preparation.

A. INTENTIONALLY & REPEATEDLY VIOLATED CONTROLLING LAW IN ORDER TO FAVOR THE DEFENSE AND FRUSTRATE PLAINTIFF'S TRIAL PREPARATION

On July 5, 2005, the parties appeared before Judge Smith on Defendant White's ex parte application to quash Plaintiff's duly noticed deposition of treating medical malpractice experts, Drs. Mary Bean and Dr. Stanley Brown. Both of these experts were identified in the parties CCP §2034 exchange. CCP §2025(d) gave Plaintiff the right to depose these experts up to the 15th day prior to trial.

The Judge acknowledged the law and Plaintiff's right to depose the experts, however, he then entertained a request by non-party expert, Stanley Brown's attorney, to have the deposition at Dr. Brown's office instead of at the court reporter's office in downtown Sacramento where it was duly noticed. Plaintiff explained that in light of the fact that Dr. Brown's deposition was going to be tape recorded and Dr. Jones's deposition was scheduled before Brown's and would conclude minutes before Brown's was to begin that it would be logistically impossible to take Brown's deposition at Brown's office to begin at 11:30 am as noticed.

Further, although there had been no prior notice of a request by an person that the amount of time of Brown's deposition be limited, the Judge ordered that it be limited to two (2) hours, and that it be taken during Brown's lunch break.

Further, although Dr. Jones was not represented at the hearing and had made no request of any kind of the court the Judge initially indicated that her deposition be taken at her office. When the undersigned was permitted to address the Court and informed Judge Smith that Dr. Jones had informed the undersigned that the day of her noticed deposition, viz., July 7, 2005, was her day off from work and indicated no objection to the location of the deposition, the Judge changed his order and stated that her deposition could be taken at the place noticed. However, he voluntarily ordered that her deposition should be limited to three (3) hours time.

In light of the trial call scheduled for July 27, 2005, the undersigned respectfully explained to the Judge that his sua sponte change of the location of Dr. Brown's deposition would throw a monkey wrench into Plaintiff's trial preparation the Judge simply responded. Well you'll have to work it out. (See Part 5 of 5.)

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

There cannot be a clearer display of bias than Judge Smith's refusal to grant any relief to Plaintiff from Defendant's wrongful tampering with Plaintiff's medical malpractice expert.

In addition, he has violated Plaintiff's constitutional rights to due process by issuing orders of subjects that were not properly before him by way of noticed motion. For example, at the 7-05-05 ex parte hearing even though no party had given prior notice of any intent to request that Plaintiff's noticed depositions of treating experts Brown and Jones's depositions be limited in time and at a different location, the Judge entered such an order and in doing so knowingly and deliberately deprived Plaintiff of the deposition of Dr. Brown by ordering that his deposition take place at Dr. Brown's office at Children's hospital located some 10 miles for the noticed location and which made it logistically impossible for Plaintiff's counsel to comply with the Judge's order.

During the 7/8/05 hearing the Judge again repeatedly interrupted and precluded Plaintiff's counsel from making a record that could be read by the court of appeal, but instead made his own record favorable to defense counsel. Further, the Judge's comments would support an inference that he had not even read Plaintiff's moving paper nor Plaintiff's reply papers.

Based upon the above it is apparent that Judge Smith's track record of preferential treatment for the defense will continue as long as he is permitted to preside over this case.

Consequently, because of his apparent bias he should disqualified and be recused per CCP §170.1. (See Part 4 of 5.)

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

In addition, the Judge has made comments on the record that support the inference that he views fair rulings for the Plaintiff required by the facts and the law to have been favors for which he expects gratitude. For example the following exchange took placed during the July 8 hearing:

MR. GREEN: You repeatedly, throughout the case, you've been the advocate for the defense
THE COURT: To me this case is an example of the expression, No good deed goes unpunished. I have in this case devoted more time to this case than about any other medical malpractice case I can recall.

MR. GREEN: Most of it --
THE COURT: I've made myself available to you and the other attorneys. I've resolved numerous discovery disputes. I haven't kept track, but I know that some have gone in your favor and some have not. I feel like I performed a very high level of service for you in this personal injury case.

MR. GREEN: I disagree.
THE COURT: I know in my heart I'm trying, I always try, to do the right thing, and so I'm kind of saddened that this is coming -- you are not perceiving it in the same way I perceive it.

MR. GREEN: Could I make my arguments, your Honor?
THE COURT: Sure.

MR. GREEN: Thank you.

MR. GREEN: On June 13 when you told me to file a motion, you suggested to defense counsel that they get a declaration from Ms Glaser in support of their opposition to this. I felt that was improper because the judge should not be directing defense counsel as to how to proceed, but this is typical--
THE COURT: You don't think I've ever done anything to help you?

MR. GREEN: You have on occasion rendered justice, which is all we requested. We do not ask for favors. But I think what you have done for the defense has been over and above board. And I'm not making any personal aspersions against your Honor, I think you are a fine person, you are a judge with a lot of experience. I'm not taking that tact with your Honor. I don't want to offend your Honor personally. But I have to present my client's position, which is all I'm trying to do.

The July 8, 2005 hearing was held on Plaintiff's Motion for relief based upon the eve of trial revelation that defense counsel had tampered with Plaintiff's sole OBGYN expert in this medical malpractice cases. The defendant and the expert both admitted that the defense counsel had retained the expert after he had been designated by the Plaintiff in this case to work on the same type of case for defense counsel. In addition it was admitted that defense counsel had paid Plaintiff's expert money and had obtained his opinions on brachial plexus birthinjuries. Ample case and statutory authority was presented to the Judge clearly establishing the impropriety of defense counsel's contracting with Plaintiff's expert, yet the Judge turned a blind eye toward the damage thereby done to Plaintiff's case and denied Plaintiff's request to substitute another OBGYN expert for the tainted one as well as his request for additional sanctions und CCP §2023. (See Part 3 of 5.)

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

PLAINTIFFS HEREBY OBJECT to Judge Paul S. Smith presiding at the trial of this medical malpractice action or in any further proceedings concerning this action.

This objection is based upon each of the following:

A person aware of the facts concerning the Judge's conduct and handling of the matters that have been presented to her in this personal injury case might reasonably entertain a doubt that the judge would be able to be impartial.

As set forth in the declarations submitted herewith, Judge Smith has repeatedly assumed the role of advocate for the defense; repeatedly cut off Plaintiff's counsel's efforts to make a record; while making a record favorable to the defense; and repeatedly violated Plaintiff's constitutional rights to due process by ordering Plaintiff to do things without any prior notice or opportunity to prepare for and brief the issue.

In addition, the facts support an inference that Judge Smith has abdicated his duties as a Superior Court Judge to fairly resolve issues based upon a fair application of the facts to the law. Instead his comments on the record reflect his view of his role as an anti-solomon like mediator position in which he repeatedly attempts to "split the baby" so as to more often than not bestow improper favors upon defense counsel even when the latter is completely in the wrong on the law and facts before the court. The following is an excerpt from the July 5 ex parte hearing in Judge Smith's chambers:

THE COURT: Essentially, a lot of times we've sort of split the baby, we've
compromised, we've done everything we can to speed-up and
simplify the discovery process and to give what I think is
reasonable discovery. (See Part 2 of 5.)

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

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

Plaintiffs cannot make an argument for ostensible agency in this case. Mejia states that....a patient is presumed to have looked to the hospital for care unless he or she was treated by his or her personal physician, .... (Mejia, supra, 99 Cal.App.4th at 1455, emphasis added.) Ms. White was treated by her own obstetrician - Dr. Cindy Brown - during her hospitalization at UMH in March 2005.

Further, Dr. Brown is not an employee of UMH, although she did, and still does, have staff privileges at UMH. Physicians with staff privileges are not employees or agents of the hospital. Dr. Brown does not have an office in UMH. Dr. Brown's office is located at 2601 East Main Street in Ventura, California. Dr. Brown's practice was not established by UMH and is not considered an outpatient clinic of UMH. Dr. Brown's office/practice is called the Moss Medical Clinic. Dr Brown's employees were not employees of UMH, and were not paid by UMH. UMH did not bill for Dr. Brown's services; UMH only billed for services provided by UMH at UMH.

Based on the foregoing, plaintiff's cannot establish a claim for ostensible agency, as none of the factors to make such a finding are present in this case. As such, defendant UMH's motion for summary judgment should be granted.

It has been demonstrated by the arguments presented herein that plaintiffs cannot prove the essential elements of breach of duty or causation. Accordingly, defendant's motion for summary judgment should be granted, and plaintiffs' complaint against UMH should be dismissed in its entirety.

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

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

THERE WAS NO AGENCY BETWEEN UMH AND DR. BROWN

Agency may be either actual or ostensible. (Civ. Code, § 2298; Vallely Investments v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th 816, 826.) Actual agency exists when the agent is really employed by the principal. (Civ. Code, § 2299.) Ostensible agency "may be implied from the facts of a particular case, and if a principal by his acts has led others to believe that he has conferred authority upon an agent, he cannot be heard to assert, as against third parties who have relied thereon in good faith, that he did not intend to confer such power..." (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 644.)

The doctrine establishing the principles of liability for the acts of an ostensible agent rests on the doctrine of estoppel [citation]. The essential elements are representations by the principal, justifiable reliance thereon by a third party, and change of position or injury resulting from such reliance [citation]. Before recovery can be had against the principal for the acts of an ostensible agent, the person dealing with an agent must do so with belief in the agent's authority and this belief must be a reasonable one. Such belief must be generated by some act or neglect by the principal sought to be charged and the person relying on the agent's apparent authority must not be guilty of neglect [citation]. (Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942, 960.)

The requirements for finding ostensible agency within the medical context are: (1) the service of the physician is performed on what appears to be the hospital's premises; (2) a reasonable person in plaintiffs position would believe that the physician's services are part and parcel of services provided by a hospital; and (3) the hospital does nothing to dispel this belief. (Seneris v. Haas (1955) 45 Cal.2d 811, 831-832; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 166;Stanhope v. L. A. Coll. of Chiropractic (1942) 54 Cal. App. 2d 141, 146;Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1457.) (See Part 9 of 9.)

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

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

NO ACT OR OMISSION OF UMH CAUSED PLAINTIFF'S CLAIMED INJURIES

The law is well settled in California that causation must be proved within a reasonable medical probability based on competent expert testimony. Mere possibility is insufficient to establish a prima facie case. (Jones v. Ortho Pharmaceutical Corporation (1985) 163 Cal.App.3d 396, 402.) The cause of an injury has been defined as something that is a substantial factor in bringing about an injury. (Mitchell v. Gonzales (1991) 54 Cal.App.3d 1041.) Thus, to recover from UMH for medical negligence in this action, plaintiff must prove that the purported negligence of UMH was a substantial factor in bringing about the claimed injuries.

Sandy Singer has opined that no act or omission by UMH's nursing staff caused or contributed to plaintiffs alleged injuries. It is a physician function, rather than a nursing function, to order treatment for patients. Nurse Singer has opined that the nurses properly observed and reported Ms. White's condition and progress to her treating physician. The nurses appropriately monitored Ms. White during her early labor, and followed the doctor's orders. The nurses appropriately observed and reported on the condition and progress of the fetuses's based on the fetal monitor. The nurses appropriately recorded their observations in Ms. White's chart and on the fetal monitoring strips. The nurses also followed the appropriate protocols for medication administration during early labor, as well as the protocols for early labor, and for the labor and delivery of extremely premature infants.

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

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

UMH DID NOT BREACH ITS DUTY OF CARE TO PLAINTIFFS DECEDENTS
A hospital such as UMH owes its patients a duty of reasonable care. In a wrongful death action that is based on medical malpractice, the evidence must be sufficient to allow the jury to infer that in the absence of defendant's negligence, there was a reasonable probability that the plaintiff would have obtained a better result. (Espinoza v. Little Company of Mary (1995) 31 Cal.App.4th 1304, 1315.) The measure of such duty is the degree of care and skill ordinarily used by hospitals generally in the community, according to what the undertaking to treat the particular patient requires in each instance. (Contreras v. St. Luke's Hospital (1978) 78 Cal.3d 919,927.)

The declaration of Sandy Singer, RN, establishes that she has sufficient credentials to qualify as an expert witnesses with regard to the care and treatment provided to plaintiff Joan White and plaintiffs decedents by UMH's nursing staff. She has opined, based upon a review of the relevant documents, that UMH did not breach its duty of care to plaintiff and plaintiffs decedents as the staff properly followed doctors' orders, properly monitored, observed and reported the condition of Joan White and the twins to the doctors and cared for Ms.. White and the twins appropriately. Nurse Singer has also stated that it is a physician function, rather than a nursing function, to order treatment for patients.

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

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

As is evidenced by the attached declaration of Sandy Singer, UMH provided care and treatment to plaintiff Joan White, and plaintiff decedents (Owen and Tomas White), which met the standard of care. Ms. Singer has opined that the nurses the nurses properly observed and reported Ms. White's condition and progress to her treating physician. The nurses appropriately monitored Ms.. White during her early labor, and followed the doctor's orders regarding treatment. The nurses appropriately observed and reported on the condition and progress of the fetuses's based on the fetal monitor. The nurses appropriately recorded their observations in Ms.. White's chart and on the fetal monitoring strips.

The nurses followed the appropriate protocols for medication administration during early labor, as well as the protocols for early labor, and for the labor and delivery of extremely premature infants. In addition, Ms. Singer has opined that UMH did everything possible for the twins, but due to their extreme prematurity, nothing could be done to save their lives. Accordingly, plaintiffs cannot establish that UMH breached its duty of care, and UMH's motion for summary judgment should be granted.

A PARTY SUBMITTING UNCONTRADICTED EXPERT EVIDENCE MUST PREVAIL

California courts have held that where a defendant's expert testimony is uncontradicted, no triable issue of fact remains for the jury to consider, and the defendant must prevail as a matter of law. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406.) The Willard opinion describes the preemptive weight of expert testimony in a malpractice action as follows:

Unless plaintiff comes forward with competent expert testimony to dispute the opinions of Sandy Singer, RN, on the issue of the applicable standard of care and causation, defendant's motion must be granted. (See Part 6 of 9.)

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

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

THE ISSUE OF NEGLIGENCE CAN ONLY BE RESOLVED BY EXPERT TESTIMONY IN THIS CASE

Based on the allegations of the complaint, plaintiffs contend that the twins died because of the alleged professional negligence of the hospital. Generally speaking, actions for professional negligence center on an allegation that the professional breached the applicable standard of care. Proving what the applicable standard of care is, under most circumstances, requires testimony of a properly qualified expert. In Jambazian v. Borden, (1994) 25 Cal.App.4th 836, 844, the court stated:

The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts. Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of lay persons.

In Evans v. Ohanesian (1974) 39 Cal.App.3d 121, at 128, the court set forth the standards to be met when one offers the testimony of a medical expert:

To qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional knowledge, learning, and skill of the subject under inquiry sufficient to qualify him to speak with authority on that subject; and (2) is familiar with the standard required...under similar circumstances...

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

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

ARGUMENT

SUMMARY JUDGMENT MUST BE GRANTED WHEN MOVING PARTY DEMONSTRATES THAT THE ACTION IS WITHOUT MERIT

A defendant may move for summary judgment in any action or proceeding if it contends the cause of action has no merit. (Code Civ. Proc., § 437c, subd. (a).) The cause of action has no merit if:

1. One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded, or

2. A defendant establishes an affirmative defense to the cause of action. (Code Civ. Proc., § 437c, subd. (n).)

The motion shall be granted if all of the papers submitted show there is no triable issue as to any material fact and the defendant is entitled to summary judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Any alleged disputes must concern material facts.
... [O]nce a party bears the initial burden of demonstrating an entitlement to judgment as a matter of law, the opposing party may not defeat summary judgment by attempting to generate a factual dispute as to immaterial issues ... (Romero v. American President Lines, Ltd. (1995 38 Cal.App.4th 1199, 1203.)

The elements for a wrongful death action include (1) a wrongful act or neglect on the part of one or more persons that (2) causes (3) the death of [another] person. (Code Civ. Proc. § 377.60; see also, Norgart v. Upjohn Co. (1999) 21 Cal.4th 383.) To prevail on this cause of action, plaintiffs must plead and prove duty, breach of duty, causation and damages. (St. Francis Medical Center v. Superior Court (1987) 194 Cal.App.3d 668, 671.) As has been argued in detail, infra, defendant did not breach any duty of care owed to plaintiffs decedents, and defendant did not perform any act or omission which caused decedents death.

Plaintiff's have contended that due to the professional negligence of UMH, and the neglect with which they treated the twins, caused their injuries, which in turn led to their deaths. (See, plaintiffs complaint.) UMH was not negligent in their care and treatment of the twins. Defendant has presented uncontroverted evidence that it did not breach its respective duties of care to plaintiffs decedents. Plaintiffs therefore cannot prove their causes of action for negligence and accordingly, defendant's motion for summary judgment should be granted. (See Part 4 of 9.)

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

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

STATEMENT OF FACTS

Joan White was a 26-year-old G2, P1 who was under the obstetrical care of Dr. Cindy Brown. Ms. White had previously been under the care of Dr. Brown for the delivery of her first child only 11 months before this incident. At the time of this incident, Ms. White was pregnant with diamnaiotic, dichorionic twins. Dr. Brown's notes indicate that Ms. White had been without significant complaints until she was admitted to Universal Memorial Hospital at 23 weeks, two days gestation for tocolysis due to premature labor.

Ms. White underwent tocolytic therapy for two days at the hospital before it became apparent that the drugs were not working. She continued to go into labor and became fully dilated. At that point, Dr. Brown had discussions with Ms. and Mr. White about the poor prognosis for babies at such an early gestation. Dr. Greene, a neonatologist, also discussed the poor prognosis for babies born with such extreme prematurity.

The babies were delivered by cesarean section on XX/XX/2005. Baby A had APGARs of 2, 6 and 8, with a birth weight of 532 grams. Baby B had APGARs of 5 and 7 (no value reported for 10 minutes), with a birth weight of 560. Both babies were admitted to the NICU with a multitude of system problems, as would be expected of such premature infants.

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

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

PLEASE TAKE NOTICE that defendant Universal Memorial Hospital of (hereinafter "UMH" ) will, and hereby does, move this court for an order that no substantial controversy or triable issue of material fact exists as to said defendant, and for entry of judgment in favor of said defendant and against plaintiffs.

This motion is made pursuant to Code of Civil Procedure section 437c of the on the ground that no triable issue of material fact exists as to UMH, in that said defendant breached no duty of care to plaintiff.

The motion will be based on this notice, the separate statement of undisputed facts filed concurrently herewith, the accompanying memorandum of points and authorities, the declaration of Sandy Singer, RN, Mary Black, Daniella Jones, the exhibits , and all pleadings, papers and other documents on file with this Court and, on such other evidence, oral or documentary, as may be presented at the hearing of this motion.

MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF THE CASE

This is a medical malpractice/wrongful death action arising out of allegations that plaintiffs' decedents were negligently examined, diagnosed and/or treated while they were patients of Universal Memorial Hospital. Ms. White was pregnant with twins when she was admitted to Universal Memorial Hospital at 23 weeks, two days gestation for tocolysis due to premature labor.

Plaintiffs have filed suit against Cindy Brown, M.D., SAC Medical Group, and Universal Memorial Hospital. The complaint contains two causes of action for wrongful death, one for each of the two babies. Plaintiffs contentions against UMH are that the hospital was negligent in its hiring of nursing and support staff, negligent in its supervision of is nursing and support staff and was negligent in granting privileges to physicians. Plaintiffs also contend that UMH was negligent in its care and treatment of Tomas and Owen White and failed to carry our the orders necessary to diagnose the injuries and conditions which caused or contributed to the deaths of Tomas and Owen White. (See Part 2 of 9.)

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

(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.)

Plaintiff Signed the Conditions of Services Agreement and is Bound by Its Provisions.

The Conditions of Services form was signed and dated November 3, 2003, prior to the bulk of the treatment provided at UMC and by Dr. Cruz, and two days prior to the subject surgery. California law uniformly holds that one who signs an instrument may not avoid the impact of its terms on the grounds that she failed to read it before signing. In Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119, the plaintiff, a driver injured while participating in a sports car race, sought to avoid the impact of a release agreement on the ground that he failed to read it before signing. In affirming the trial court's grant of defendants' motion for summary judgment, the Court of Appeal stated:

[M]istake, as plaintiff has argued it, is not a viable ground for not enforcing the release. His position on this point we liken to a person who comments upon leaving the movie, Had I known what it was about, I never would have bought a ticket. In sum, plaintiff cannot now claim he was mistaken about what was in the release when he failed to read it before signing [Citation]. Id. at 126.

Any explanation as to his lack of understanding about the relationship between UMC and Dr. Cruz (i.e., he had many papers to sign and was in pain) is irrelevant. In the case of Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158 [21 Cal.Rptr.2d 245] the plaintiff argued that she was literate in Greek but not English and therefore could not read the subject agreement. The Court of Appeal stated that the plaintiffs contention is not well taken , and suggested that the plaintiff should have had the instrument read to her. Id. at 163.

For these reasons plaintiff cannot meet the test of Mejia, supra, to establish an ostensible agency relationship between independent contractor physicians and hospital in order to impute their alleged liability upon UMC. Plaintiff had actual notice through the Conditions of Services agreement and cannot satisfy the first of the three-part test for ostensible agency (the plaintiff believed that the physician was an agent of the hospital, and this belief was reasonable [Mejia, supra, 1156 -1157); and he has presented no evidence in support of the second of the three tests, that his belief must be generated by some act or neglect of UMC. (Id.)

Plaintiffs Have Failed to Meet Their Substantive Burden Entitling Them to Summary Judgment/ Adjudication

Plaintiffs have failed to establish in their moving papers that Dr. Cruz was an agent or employee of UMC. Plaintiffs have thus failed to meet their burden. Notwithstanding, UMC has established by the aforementioned evidence that Dr. Cruz is not a UMC employee or agent, or at a minimum, that there is a triable issue as to whether Dr. Cruz is a UMC agent. Either way, summary adjudication must be denied.

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