How is the Standard of Care for a Doctor Decided?

Author: Sheila Baker

Guest Editor: Grace Shuman

December 3, 2021 9:00am

The central issue in any medical malpractice case is whether the medical provider breached the applicable standard of care.  The California state appeals court recently clarified the standard of care for a physician in an unpublished case. Generally speaking, the medical standard of care is defined as the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice. The standard of care is only proven by expert testimony, unless the circumstances are such that the required conduct is within the layperson’s common knowledge.

A Recent California Case Reminds Us of the Importance of Motions in Limine

Author: Kelley Harman

Guest Editor: Grace Shuman

October 29, 2021 9:00am

A strategic and thoughtfully prepared motion in limine can allow a party to assert control over the facts that will be presented to a jury and are a commonly used tool for raising evidentiary issues relating to expert witness testimony.  A successful motion in limine can shape the course of a trial. In Valderrama v. Beautologie Cosmetic Surgery, Inc., the use of thoughtful motions in limine to preclude irrelevant testimony and prevent plaintiffs’ experts from relying on the irrelevant testimony, allowed defendants to succeed at trial.

Connecting the Dots: Prep The Experts

Author: Kimberly Sayre

Guest Editor: Kiran Gupta

October 4, 2021 3:17pm

It is important to prepare experts for anything they may encounter on the stand. In Sampson v. Surgery Center of Peoria, the Supreme Court discussed an issue regarding testimony from an expert witness who testified in a medical malpractice case.

National Deaf Academy, LLC v. Townes: Medical Malpractice Claims Made Murkier

Author: Allison Lawrence

July 9, 2018 9:00am

Florida courts have grappled with the issue of whether or not claims for quasi-medical injuries occurring in a hospital, medical clinic, or physician’s office, automatically fall under the regulations of Florida’s medical malpractice statutes, or should be brought as ordinary negligence claims. Likewise, plaintiffs claiming damages resulting from these quasi-medical injuries were torn between filing claims under the purview of medical malpractice statutes, or simply filing claims asserting ordinary negligence. Does the classification make any difference? The short answer is, yes.

California Case Law Updates

Author: Emily Berman

May 31, 2018 10:49am

Products Liability-Record $70 Million Punitive Damage Award Pending Appeal

Kuhlmann et al. v. Ethicon Endo-Surgery Appellate Case No. A147945, Court of Appeal, First District

A record high $70 million punitive damages verdict against Johnson & Johnson in a lawsuit over a defective surgery stapler is up on appeal.  Johnson & Johnson contends the evidence does not support the jury’s finding  the stapler manufacturer acted with malice. If the verdict is allowed to stand, it will be the highest punitive award affirmed by a California court. Johnson & Johnson’s attorneys claim the amount is excessive, as it far exceeds what courts have approved for cases involving far more reprehensible alleged misconduct, such as harm caused by asbestos or the tobacco industry.

California Case Law Updates

Author: Emily Berman

April 3, 2018 3:41pm

Coalition Against Distracted Driving et al. v. Apple Inc. et al.[1]

In this appeal recently brought before the Second Appellate District (downtown Los Angeles), appellant urged the Court to revive a suit in he and a coalition brought against Apple, Google, Samsung and Microsoft. In that suit, it was alleged these tech giants should be required to warn consumers about the dangers of using smartphones while driving.  Plaintiffs argued the four tech companies must apply warning labels regarding the dangers of distracted driving to their products.  The trial court dismissed the case, ruling the coalition had no standing to sue.

California’s Delayed Discovery Rule in the Medical Malpractice Context

Author: Emily Berman

Guest Editor: Jeremy Freedman

March 5, 2018 12:41pm

Statutes of limitations are an integral component of the legal system enacted as a matter of public policy and designed “to give defendants reasonable repose, that is, to protect parties from defending stale claims [and] to require plaintiffs to diligently pursue their claims.”[1] In California, there is an important exception to the general rule that a cause of action accrues when appreciable harm occurs. This is known as the Delayed Discovery Rule. The Rule applies in certain circumstances where it is not reasonably possible for a person to discover the cause of injury or even know that an injury has occurred, until an extended period of time after the act which caused the alleged injury.  In these situations, the Delayed Discovery Rule operates to “postpone the accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.”[2]  The principal purpose of the rule permitting postponed accrual of certain causes of action is to protect aggrieved parties who, with justification, are ignorant of their right to sue.[3]

How to Win Big and Early: ANTI-SLAPP Motions

Author: Robert Tyson

May 9, 2014 4:51pm

Superior Court grants a dispositive Anti-SLAPP motion dismissing defamation claims arising from a defendant’s speech to his primary care physician about the treatment and insurance/billing practices of the specialist doctor to whom the patient was referred by that primary care physician.

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