Legal Question in Medical Malpractice in California

Do you think Defendant (a small Health Clinic) has a chance of prevailing @ pleading stages (having their Demurrer sustained without leave to amend and/or Defendant's Judgment on the Pleadings sustained) in a proposed Medical Malpractice action? ,,,,,The proposed case is of Elderly In Pro Per Plaintiff (with no assets/"judgment-proof") to sue a small clinic for Medical Malpractice & Negligent Infliction of Emotional Distress, in Superior Court (Unlimited Jurisdiction) because the young clinic staff put a splint (for a hairline fracture/small broken elbow) on Plaintiff's arm too tight that caused damage & injury, such as : 1.) left small bruise in the arm, 2.) restricted blood flow and 3.) caused discomfort,,,,,,,, Then Plaintiff had to go to another different ER in a bigger hospital a couple days later, to have another splint put on, which was comfortably done, and their Medical report states and proves that there was degenerative changes on the skin (which was due from the earlier improperly placed splint from the small clinic) . ,,There were small temporary after-effects from the 1st improperly put splint, like a mental distrust to ever go again to another small clinic ever again,,,,A couple Medical Malpractice firms (faggellaw.com) rejected to take the case because they said that the damages are minimal and they only do cases with long term serious damage effects, Another attorney also said it would be difficult to prove damages because Plaintiff is an elderly and the skin/body is sensitive to damages anyways,,,,.,,,The clinic's defense counsel also said that Plaintiff's case is weak and that they will offer, at first, $2,000 to settle, then they doubled to $4,000, after they were given information that In Pro Per Plaintiff had litigation experience and has been deposed years ago (because defense counsel was given a copy of Plaintiff's front page of an old deposition w/ Plaintiff's name on it).... Then they said that Plaintiff will have to hire a Medical Expert and that would cost thousands of dollars more, and that from his past experience, doctors/Healthcare professionals have a high rate of defense verdicts.

Would they prevail at Demurrer stages if Plaintiff does not use an expert witness when opposing their demurrer, and just relies on the subsequent Hospital's Med's report that states that there was degenerative changes to skin (which was done from the overtightened previous splint)?


Asked on 9/21/14, 8:49 am

1 Answer from Attorneys

Joel Selik www.SelikLaw.com

Winning motions such as these are fact specific, depnding on what you pled, and can also be affected by how it was presented, and the judge. Generally, unless there are punitive damages or time limitation issues, there should not be difficult to amend a complaint to make sure the basic facts are pled. An expert is not necessary at this starge, unless you need to have a conversation with an expert to learn about the case.

As to winning a case like this it is another story. There are many requirements you must fulfil, almost always must have an expert in medical malpractice trial, and convincing a jury of the damages.

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Answered on 9/21/14, 9:19 am


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