Legal News

Selvidge v. Tang (2018), Case No. C083427, Recent decision about CCP section 364 notices of intent to sue.

This week the Third Appellate District of the California Court of Appeal held actual notice is not required for a CCP section 364 notice of intent to commence a medical negligence action... ... Read more »

Martinez v. Department of Health Care Services (2018) Case #B278117, recent decision on calculation of Medi-Cal liens in med mal settlements.

Division Six of the Second Appellate District recently explained how to properly allocate the amount of noneconomic damages in a medical malpractice settlement in which a Medi-Cal lien has been asserted but no allocation of medical versus noneconomic damages has been made in the... ... Read more »

Stewart v. Superior Court (St. Joseph’s Health) (October 12, 2017) 17 C.D.O.S. 10024, recent decision holding substantial impairment of an elder’s autonomy in making medical decisions may constitute cause of action for neglect under the Elder Abuse Act.

In Stewart v. Superior Court (St. Joseph’s Health) (October 12, 2017) 17 C.D.O.S. 10024, Division 2 of the Fourth Appellate District Court of Appeal granted a writ of mandate. Petitioner sought the writ after the trial court granted real parties’ motion for summary adjudication of petitioner’s elder abuse causes of action. In a decision certified for partial publication, the appellate court ruled that impairment of a patient’s right to make his own medical decisions (right of personal autonomy) could constitute neglect under the Elder Abuse Act... ... Read more »

Johnson v. Open Door Community Health Centers, (2017) 17 C.D.O.S. 9016, recent decision on determining whether negligence is general or professional for purposes of determining applicable statute of limitations.

In Johnson v. Open Door Community Health Centers, Division Four of the First Appellate District held an action by a patient who was injured when she tripped and fell over a scale in defendant’s medical facilities after her appointment had ended was one for general, not professional, negligence. Since there was no “direct” relationship between plaintiff’s injury and the rendition of medical care or treatment, her case was one of simple premises liability not subject to the MICRA one-year statute of limitations for professional negligence found at CCP section 340.5. The court’s concise opinion applied the Supreme Court’s decision... ... Read more »

Kumari V. Hospital Committee For The Livermore-Pleasanton Areas, (2017) 17 C.D.O.S. 6637, recent desicion stating that in which division five of the first appellate district held plaintiff’s subjective motivation for writing a letter to a health care provider is not relevant to a determination of whether the letter constitutes a notice of intent to sue.

During plaintiff Veena Kumari’s hospitalization for childbirth, she fell and broke her right shoulder. Plaintiff sustained her injury on October 29, 3013, and on February 19, 2014, she wrote a letter to ValleyCare Health System (ValleyCare) which detailed the nature of the injury and the basis for her claim against ValleyCare, requested monetary compensation, and indicated she would “move to the court” if she did not receive a check within 20 days. The hospital investigated and then denied her claim. Thereafter, she and her husband retained counsel who wrote a 90-day notice letter pursuant to CCP section 364 to ValleyCare on October 27, 2014. This second letter also set out the allegations of negligence against the hospital, the nature of plaintiff’s injuries as a result of that alleged negligence, and an intention to commence a lawsuit “after the expiration of 90 days from the date of this notice.” On January 23, 2015—more than a year after her injury—plaintiffs sued ValleyCare for professional negligence and loss of consortium. ... Read more »

Sanchez v. Kern Emergency Medical Transportation Corp., (2017) 17 C.D.O.S. 1066, recent decision stating that holding plaintiff cannot demonstrate existence of a triable issue of fact by relying on portions of an expert declaration that were speculative, not based on the evidence and properly excluded by the trial court.

The Fifth Appellate District of the California Court of Appeal found no error by the trial court and affirmed the court’s grant of defendant’s motion for summary judgment (MSJ). Defendant’s MSJ was supported by multiple expert declarations which were based upon a detailed timeline of events, as well as the medical records and other evidence, while plaintiff’s expert’s declaration in opposition to the motion was speculative and not based on or supported by the evidence of the case. Defendant’s objections to the declaration were properly sustained by the trial court, and the objectionable portions of the declaration could not be relied upon to create a triable issue of fact. ... Read more »

Moore V. Mercer, (2016) 4 CAL.APP.4TH 424, recent decision on determination of reasonable costs of past medical care and whether howell v. hamilton meats applies in cases involving uninsured plaintiffs who use third-party medical finance companies.

Embarking on an exploration of the “rabbit hole into the upside down world of health care billing,” the Third Appellate District Court of Appeals recently held in Moore v. Mercer (2016) 4 Cal.App.4th 424, that the application of the principles of Howell v. Hamilton Meats (2011) 53 Cal.4th 54, will not be expanded to cap damages at the amount actually paid to a physician by a medical finance company for a plaintiff’s medical care when the plaintiff is uninsured and signed a lien agreement that obligated her to pay the entirety of the cost for her medical care. ... Read more »

Perry v. Bakewell Hawthorne, LLC, recent decision on use of declarations by undisclosed expert witness in support of MSJ.

The California Supreme Court recently looked at the legal requirements of expert disclosure as they pertain to a motion for summary judgment in Perry v. Bakewell Hawthorne, LLC (Feb. 23, 2017) 17 C.D.O.S. 1641. Under the Code of Civil Procedure (“CCP”), parties may demand exchange of expert witness information once the initial trial date is set. A party’s “unreasonable failure to respond” to a demand for disclosure can render that “party’s expert opinion inadmissible, unless the court grants relief.” ... Read more »

McNair v. City and County of San Francisco (Nov. 22, 2016) 16 C.D.O.S. 12417, recent decision on interplay between confidentiality of medical information act and civil code section 47(b) litigation privilege.

A physician who wrote a letter to the DMV to report that her patient should not be driving a school bus due to her concern for his safety and that of the public, was held not to have violated the patient’s right to privacy of his medical information under the Confidentiality of Medical Information Act (“CMIA” at California Civil Code (“CC”) section 56, et seq.) even though the patient objected to the release of that information. ... Read more »

Markow v. Rosner, (16 C.D.O.S. 10703), recent decision on whether independent contractor physician is ostensible agent of hospital.

Recently, Division One of the Second Appellate District of the California Court of Appeal held that a physician who is selected by the patient and is identified as an independent contractor in a variety of hospital forms the plaintiff acknowledged reading and signing, is not the ostensible agent of the hospital where treatment was rendered. ... Read more »

Gerner v. Superior Court (Department of Consumer Affairs), recent decision on psychotherapist-patient privilege in the context of a complaint to the Medical Board of California.

Division One of the Second Appellate District recently held the exception to the physician-patient privilege found in Business and Professions Code (B&P) Section 2225 does not apply to a patient’s psychotherapist-patient privilege set out in Evidence Code (Ev.C) section 1014. In Gerner v. Superior Court (Department of Consumer Affairs) (2016) 16 C.D.O.S. 7380. ... Read more »

Brooks v. Mercy Hospital, recent decision on statute of limitations tolling in medical negligence actions by imprisoned plaintiffs.

The Fifth Appellate District of the California Court of Appeal recently held that a prisoner serving a life sentence with the possibility of parole can invoke the tolling provision of Code of Civil Procedure (CCP) section 352.1 in Brooks v. Mercy Hospital (July 1, 2016) 16 C.D.O.S. 7164. ... Read more »

Flores v. Presbyterian Intercommunity Hospital, recent decision on general vs. professional negligence for purposes of applying statute of limitations.

Division Three of the Second Appellate District issued its decision in Flores v. Presbyterian Intercommunity Hospital (Feb. 27, 2013) 13 C.D.O.S. 2163, a troubling decision for healthcare defendants and their counsel. The Flores court analyzed the question of whether a plaintiff's case sounds in general v. professional negligence for purposes of determining the applicable statute of limitations. ... Read more »

Garrett v. Howmedica Osteonics Corp., recent decision on products liability and admissibility of expert testimony.

In Garrett v. Howmedica Osteonics Corp. (March 6, 2013) 13 C.D.O.S. 2479, Division Three of the Second Appellate District reversed the trial court's grant of a motion for summary judgment, in part, and also interpreted the reach and application of the recent Supreme Court decision in Sargon Enterprises, Inc. v. U.S.C. (2012) 55 Cal.4th 747, which addressed the court's role as gatekeeper with respect to the admissibility of expert opinion testimony. The Garrett court held ... Read more »

Luttrell v. Island Pacific Supermarkets, Inc., recent decision holding Howell v. Hamilton Meats applies to cases involving Medicare and Medi-Cal payments.

In an unambiguous application of Howell v. Hamilton Meats, Inc., (2011) 52 Cal.4th 541, Division Five of the First District Court of Appeal held in Luttrell v. Island Pacific Supermarkets, Inc. (4/8/13) 13 C.D.O.S. 3838, that a plaintiff in a personal injury action for premises liability could only recover the amounts actually paid by Medicare for his medical treatment, not the amounts billed to Medicare by plaintiff's healthcare providers. ... Read more »

Corenbaum v. Lampkin: Recent decision in which the appellate court applied Howell v. Hamilton Meats to hold evidence of the full amount billed by a healthcare provider is not relevant to a determination of past or future medical expenses, or general damages, and is therefore not admissible.

In a very important decision on personal injury damages post-Howell v. Hamilton Meats, Division Three of the Second Appellate District held in Corenbaum v. Lampkin (April 30, 2013) 13 C.D.O.S. 4370, that evidence of the full amount billed by healthcare providers is not relevant to the determination of the amount of past medical expenses sought by plaintiff in a personal injury action and is therefore not admissible. Only the amount actually paid and accepted for services rendered--the amount the healthcare provider accepted as payment in full pursuant to a prior agreement, also called the "negotiated rate differential"--is relevant and admissible ... Read more »

Recent Federal Court decision interpreting California bad faith insurance law, Du v. Allstate Insurance Co.

Recently, the Ninth Circuit issued its opinion in Du v. Allstate Insurance Co. (June 2012) 12 C.D.O.S. 6368, an interesting decision in the field of bad faith litigation. In affirming the district court judgment in favor of Allstate, the Ninth Circuit observed that Du's appeal raised the following issue: "Does an insurer have a duty, after liability of the insured has become reasonably clear, to attempt to effectuate a settlement in the absence of a demand from the claimant?" The court answered affirmatively and held that "under California law, an insurer has a duty to effectuate a settlement where liability is reasonably clear, even in the absence of a settlement demand." ... Read more »

Recent decision on requirements of valid 998 offer, Puerta v. Torres

In Puerta v. Torres (Dec. 2011) 195 Cal.App.4th 1267, Division Three of the Fourth District Court of Appeal held that a 2006 amendment to CCP section 998 rendered defendant's 998 offer invalid because the offer did not include a written provision for the accepting party to accept the offer. In Puerta, an auto accident case, the court held that CCP 998 requires a party making an offer to compromise to include not only a written statement of the offer (which contains the terms and conditions of the judgment or award) but also a provision that "allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted." ... Read more »

Leung v. Verdugo Hills Hospital (Aug. 23, 2012) 12 C.D.O.S. 9646, in which the California Supreme Court abolishes the common law release rule

Briefly, at the center of the Leung case was the sympathetic young plaintiff, Aidan Leung, who suffered irreversible neurologic injury at 6 days of age after he developed kernicterus. At issue was who bore responsibility for the failure to diagnose and treat the condition which resulted in severe brain damage to the infant. Through his mother and guardian ad litem, Aidan sued his pediatrician, Dr. Steven Wayne Nishibayashi, and Verdugo Hills Hospital, where he was delivered and cared for after birth. ... Read more »

Proposed Order Regarding San Francisco Asbestos General Orders

In September 2011, Judge Harold Khan of San Francisco Superior Court circulated to the Asbestos Bar a proposed Order rescinding most of the asbestos General Orders. The court set a schedule for comments and a hearing on the proposed Order. After reviewing the written submissions and hearing the oral comments, Judge Teri Jackson ordered the Asbestos Bar to form a joint committee consisting of six representatives each from the defense and the plaintiff sides to meet and confer and submit three separate reports per a set schedule identifying those General Orders that the parties mutually agree are outdated and should be vacated, those the parties agree should remain in effect either as written or revised in a mutually agreeable fashion, and those on which the parties could not reach agreement. ... Read more »

Alameda County Superior Court Judge Lee to Commence Including New Provision in Initial CMC Statements Limiting Defense Deposition Examination to 18 Hours

On March 21, 2012, Judge Jo-Lynn Lee informed the asbestos bar that after some consideration of the matter and discussion with some plaintiff and defense counsel, she has decided to put a time limitation on plaintiff depositions by inserting a provision into her standard Initial Case Management Order starting immediately. Despite the fact that the limitations placed by both San Francisco and Los Angeles come with certain conditions and are set at 20 hours, Judge Lee’s intended provision includes no conditions and sets the limit at 18 hours. As written the language implies that anyone wishing to shorten or lengthen the time limit must do so prior to the start of the deposition. ... Read more »

Los Angeles Superior Court’s Presiding Judge Announces Courtroom Closures

The Los Angeles Superior Court announced plans for the most significant reduction of services in its history. By June 30, 2012, the Court will reduce its staff by nearly 350 workers, close 56 courtrooms including 24 civil courtrooms, reduce its use of court reporters and eliminate the Informal Juvenile Traffic Courts. Court reporters will no longer be provided for civil trials as of May 15th and after June 18th court reporters will be available on a limited basis only for civil law and motion matters. The court’s press release did not specifically identify which court rooms will be closing. However, since the asbestos cases are now managed through the Coordination Proceeding, it does not appear that the closures will directly affect asbestos cases until the time for remand to a trial department. San Francisco and Alameda had previously limited court provided reporters. Los Angeles is coming into line with that policy now.

Proposed Bill Would Overturn Howell

California Senate President Pro Tem Darrell Steinberg introduced SB 1528 on February 24, 2012. The bill, sponsored by the Consumers Attorneys and California, is intended to overturn the California Supreme Court's decision last August in the case of Howell v. Hamilton Meats. ... Read more »

Bill Would Limit Plaintiff Depositions to 7 Hours

Assemblyman Mike Gatto, D - Burbank, introduced a bill on February 22nd to add a section to the Code of Civil Procedure that would limit a deposition of any person to one day of seven hours unless stipulated to or ordered by the court. A court would be required to allow additional time “if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” ... Read more »

Recent Decision Holds Premises Owner Not Liable for “Take-Home” Asbestos Exposure Claimed by Contractor Employee’s Family Member

On May 21, 2012, the Court of Appeal for the Second Appellate District, issued its opinion in Campbell v. Ford Motor Company (2012 WL 1820919), holding Ford Motor Company was not liable for the plaintiff’s decedent’s asbestos-related illness (mesothelioma) that was allegedly caused by her inhalation of asbestos fibers carried home on her father and brother’s clothing. ... Read more »

California Court of Appeals Finds Punitive Damages Restrictions Set Out In C.C.P. §425.13 Inapplicable To Health Care Service Plans

On February 15, 2012, the California Court of Appeal for the Second Appellate District held the CCP Section 425.23 requirement that a plaintiff obtain a court order before being permitted to seek punitive damages against a health care provider does not apply to claims for punitive damages against a health care service plan. ... Read more »

California Supreme Court Continues to Limit Liability of Product Manufacturers for Harm Caused by Another Manufacturer’s Products

On January 12, 2012, the California Supreme Court issued its long anticipated opinion in the case of O’Neil v. Crane Co. regarding the component parts defense. The case involved the claims of plaintiffs that Patrick O’Neil developed mesothelioma, which caused his death in 2005, as a result of exposure to asbestos while stationed aboard the aircraft carrier the USS Oriskany. Mr. O’Neil’s family claimed that manufacturers of pumps and valves used in the steam propulsion system were liable for Mr. O’Neil’s death because asbestos-containing ... Read more »

Court of Appeal Holds Plaintiffs’ Expert’s Declaration Sufficient To Create Triable Issue By Relying On Medical Records Submitted And Authenticated By Moving Party

On September 22, 2011, Division Eight of the Court of Appeal, Second Appellate District, published its previously issued but unpublished opinion in Shugart v. Regents of the University of California (2011) 11 C.D.O.S. 12223. Appellants Christine and Michael Shugart had sued the Regents, Ja Hong Kim, M.D., and another surgeon, Linda Warren, M.D. for medical negligence. ... Read more »

Court of Appeal Affirms Constitutionality Of MICRA $250,000 Cap On General Damages

On September 1, 2011, the Court of Appeal, Fifth Appellate District, upheld the constitutionality of the MICRA $250,000 cap on non-economic damages in medical negligence cases. In Stinnett v. Tam (2011) 11 C.D.O.S. 11441, the appellate court affirmed the trial court's reduction of plaintiff's non-economic damages from the jury's $6,000,000 award to the $250,000 cap under Civil Code ("CC") section 3333.2. The appellate court found the cap did not violate plaintiff's constitutional right to equal protection or to a jury trial. ... Read more »

California Supreme Court Limits Recovery of Medical Expenses to Amounts Actually Incurred

The Supreme Court’s much awaited decision in Howell v. Hamilton Meats was issued on August 18, 2011. The question before the court was whether an injured person may recover from a tortfeasor the undiscounted sum stated in a healthcare provider’s bill but never paid by or on behalf of the injured person due to a negotiated rate reduction between the health care provider and the injured party’s insurance company. Further, is whether or not the tortfeasor is entitled to present evidence of the medical costs actually paid or incurred... Read more »

Hassard Bonnington Attorneys Selected for Inclusion in Super Lawyers - Northern California 2011

Hassard Bonnington partners Joseph Gharrity, James Goodman, Phillip Ward, and Marc Zimmerman have each been selected multiple consecutive years for inclusion among the top attorneys listed in Super Lawyers - Northern California. All four have been selected again for inclusion in Super Lawyers - Northern California 2011. Additionally, partner Nicole Roberts, has been selected for inclusion in the Super Lawyers - Northern California Rising Stars for 2011.