San Jose 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 wrongful death case and its proceedings.)

It is worth noting that situations similar to those described in this medical negligence action 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.

Plaintiff Must Join All Persons Necessary for Just Adjudication

A complaint shall state the names, if known to the pleader, of any persons who, by their absence, may leave the defendant subject to risk of incurring multiple or inconsistent obligations. If such persons are not joined as parties, the pleader must state in the complaint why they are not joined. C.C.P. §389(a) & (c).

If any person is allied in interest with plaintiff, but refuses to join as a co-plaintiff, he or she may be sued as a defendant. In such cases, the complaint must state the reasons why such person was so joined. C.C.P. §382. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff alleges that he is the "surviving heirs (sic) at law" of decedent. It is unclear whether there are other persons with standing to bring suit in this wrongful death action.

Continue reading "Negligent San Jose Hospital Fights Family's Wrongful Death Lawsuit, Part 6 of 6" »

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 case and its proceedings.)

It is worth noting that situations similar to those described in this medical negligence 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.

Plaintiff's Complaint is Uncertain Because There Are No Facts to Support a Cause of Action for Unfair Business Practices

Business & Professions Code §17200 (aka Unfair Competition Law or UCL ) prohibits unfair competition, which includes any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with section 17500) of Part 3 of Division 7 of the Business and Professions Code. An unfair business act occurs if it offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. To plead Business & Professions Code §17200, plaintiff must state with reasonable particularity facts to support the statutory elements of the violation. Khoury v. Malv's of California, Inc. (1993) 14 Cal.App.4th 612.

Here, plaintiff's complaint, at page 5, sets forth a claim titled Unfair Business Practices and alleges that plaintiff's allegations as set forth before and general allegations below constitute the facts in support of this claim. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Continue reading "San Jose Healthcare Facility's Negligence Results In Patient's Wrongful Death, Part 5 of 6" »

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 case and its proceedings.)

It is worth noting that situations similar to those described in this medical negligence 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.

Plaintiff's Complaint for Professional Negligence is Barred by the Statute of Limitations.

A complaint is subject to a demurrer under Code of Civil Procedure § 430.10, subparagraph (e), if the facts alleged in the complaint and matters of which the court is entitled to take judicial notice show the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995; Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

The statute of limitations for medical malpractice claims is set out in Code of Civil Procedure §340.5. It provides, in pertinent part:

In an action for injury or death by a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through use of reasonable diligence should have discovered, the injury, whichever occurs first. C.C.P. §340.5. (emphasis added)

Continue reading "San Jose Woman's Son Files Malpractice Action Against Hospital, Part 4 of 6" »

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 case and its proceedings.)

It is worth noting that situations similar to those described in this medical negligence 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.

LEGAL ARGUMENTS

Plaintiff's Complaint is Uncertain Because the Facts Support Only a Cause of Action for Professional Negligence and Not for General Negligence

California Code of Civil Procedure §430.10 provides, in pertinent part:
The party against whom a complaint...has been filed may object, by demurrer ... to the pleading on any one or more of the following grounds:
(e) The pleading does not state facts sufficient to constitute a cause of action.
(f) The pleading is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

A demurrer may be taken to the entire complaint or to any of the causes of action stated in the complaint. Code Civ. Proc. §430.50. For the purposes of testing the sufficiency of the cause of action, the demurrer assumes all material facts alleged in the complaint to be true. Serrano v. Priest (1971) 5 Cal.3d 584, 591, cert denied, 432 U.S. 907.

Continue reading "San Jose Family Files Medical Malpractice Suit Against Physicians, Part 3 of 6" »

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 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.

STATEMENT OF FACTS

Pro per plaintiff Vernon Hill filed his complaint on May 11, 2009, alleging wrongful death relating to the treatment and care defendant provided to his mother and decedent, Abigail Hill. According to plaintiff, defendant NMC's treatment on various days in 2006 resulted in plaintiff's mother's death. The date of death is not alleged. Plaintiff alleges that he is the surviving heirs (sic) at law of decedent. Plaintiff does not identify his relationship with the decedent although defendant understands she was his mother. Plaintiff does not identify others who may have standing, nor does he state that he is the only person with standing. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

COMPLAINT ALLEGATIONS

Plaintiff's cause of action titled General Negligence alleges various facts regarding the care and treatment rendered to decedent by NMC. Plaintiff then alleges that NMC's negligent conduct led to decedent's pain and suffering and death.

Continue reading "Medical Negligence By San Jose Doctors Results In Patient's Death, Part 2 of 6" »

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 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.

Memorandum of Points and Authorities in Support of Defendant National Medical Center's Demurrer

INTRODUCTION

Plaintiff's complaint is based on the medical care provided to his mother and decedent, Abigail Hill, by defendants. Plaintiff alleges defendants' negligent medical care resulted in his mother's death.

The demurrer of National Medical Center to plaintiff's complaint and its causes of action should be sustained without leave to amend for the following reasons:

The complaint is uncertain. On the first page of the complaint, plaintiff checked boxes indicating causes of action for "Malpractice/Negligence" and "Wrongful Death." On page 3, plaintiff checked boxes indicating causes of action for General Negligence and Unfair Business Practices. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Continue reading "San Jose Woman Dies Due To Hospital's Negligence, Part 1 of 6" »

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 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.

PLAINTIFFS SHOULD BE COMPELLED TO ARBITRATE ALL OF THEIR CLAIMS AGAINST DR. LEE BECAUSE THE FEBRUARY 27, 2005, PHYSICIAN-PATIENT ARBITRATION AGREEMENT GOVERNS ALL OF PLAINTIFFS' CLAIMS AGAINST DR. LEE.

A physician-patient arbitration agreement in compliance with Code of Civil Procedure section 1295 binds the signatory patient, as well as certain non-signatories. In Bolanos v. Khalatian, (1991) 231 Cal.App.3d 1586, the Court of Appeal ruled on the issue of whether an arbitration agreement applies to disputes by non-signatories. The facts in the Bolanos case are similar to those in the present case. Bolanos was a medical malpractice action brought against an obstetrician. (Id. at 1588.) The patient signed a physician-patient arbitration agreement, which was written in Spanish, because the patient did not read English. (Id. at 1589.) The defendant obstetrician moved to compel arbitration, and the plaintiffs challenged the submission of the matter to arbitration, in part, because the patient's husband did not sign the physician-patient arbitration agreement. (Id. at 1591.)

Continue reading "San Jose Family Sues Doctor For Malpractice For Birth Injury, 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 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 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.

In addition to the above language, an arbitration agreement must include immediately before the signature line provided for the individual contracting for the medical services the following language in at least 10-point bold red type:

NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE I OF THIS CONTRACT. (Code of Civil Proc. §1295(b).) For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Here, the February 27, 2005, Physician-Patient Arbitration Agreement complies with the requirements of Code of Civil Procedure section 1295(a) and (b). The language proscribed by subsection (a), of Code of Civil Procedure section 1295, translated into Spanish, is included in Articulo 1 (Article 1) of the Physician-Patient Arbitration Agreement Mrs. Hernandez signed on February 27, 2005.

Continue reading "Arbitration Agreement At Center Of Controversy In San Jose Malpractice Suit, 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 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 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.

ARGUMENT

PLAINTIFFS SHOULD BE COMPELLED TO ARBITRATE ALL OF THEIR CLAIMS AGAINST DR. LEE BECAUSE THE FEBRUARY 27, 2005, PHYSICIAN-PATIENT ARBITRATION AGREEMENT IS VALID.

The State of California has a strong public policy favoring arbitration over litigation as a speedy and relatively inexpensive means of dispute resolution which eases court congestion. (Pietrelli v. Peacock, (1993) Cal.App.4th 943, 946.) A court should use every effort to enforce arbitration agreements because arbitration is a highly favored forum for settling disputes. (Pacific Inv. Co. v. Townsend, (1976) 58 Cal.App.3d 1, 9.) A written arbitration agreement is valid and enforceable and irrevocable as consistent with standard principles. Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699. Once a document is signed, a proper arbitration agreement governs all subsequent open book account transactions for medical services unless rescinded by written notice within thirty days of signature. (Code of Civ. Proc. § 295(c).)

Continue reading "San Jose Physician Tries To Compel Arbitration In Malpractice Suit, 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 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.

Defendants' Memorandum of Points and Authorities in Support of Petition to Compel Binding Arbitration and to Dismiss Defendant David Lee, M.D., without Prejudice

BACKGROUND

This medical malpractice action arises from a fetal demise. On May 27, 2008, plaintiffs Kim Hernandez and William Hernandez (collectively referred to as Plaintiffs ) filed a complaint against defendants National Hospital and Dr. David Lee ("Dr. Lee") alleging a cause of action for medical malpractice. Mr. Hernandez alleged a cause of action for a loss of consortium. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

On February 27, 2005, Mrs. Hernandez signed a Physician-Patient Arbitration Agreement. (Color copy of the Physician-Patient Arbitration Agreement is attached as Exhibit A ; a courtesy copy of the Physician-Patient Arbitration Agreement, in English, is attached as Exhibit B. ) Mrs. Hernandez spoke Spanish so the Physician-Patient Arbitration Agreement Mrs. Hernandez signed was written in Spanish. The Physician-Patient Arbitration Agreement stated that all disputes as to medical malpractice will be determined by submission to arbitration and not by a lawsuit.

Continue reading "San Jose Parents Sue Hospital For Medical Malpractice, 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, 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 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" »