Sample Mandatory Settlement Conference Brief

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1. PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE BRIEF

I. PARTIES

Garnet Bellamy is plaintiff, represented by Linda Marks, 1234 Main Street, Los Angeles, CA (91011), telephone (213) 312-4412, facsimile (213) 312-4411. Central Valley General Hospital (“CVGH”) is defendant, represented by James Hurlbutt, Hurlbutt, Clevenger, Long, Vortmann & Rauber, 4312 Oak Street, Sacramento, CA (92025), telephone (415) 983-2345, facsimile (415) 983-5432.

II. STATUS OF LITIGATION

Defendant was served with a Section 340.5 notice on May 24, 1993 and the complaint in this action was filed with this court on August 23, 1993. After defendant’s demurrer was overruled the parties commenced discovery, which is now complete except for expert witness discovery. Expert witness designations were exchanged last week and the parties are in the process of scheduling expert depositions. Plaintiff served a Section 998 offer to compromise for $17,000 shortly after this court ruled on defendant’s demurrer, and another for $18,500 immediately upon the close of discovery; defendant has failed to respond to either. Plaintiff also has offered to submit to binding arbitration with a low of $15,000 and a high of $20,000 but defendant has refused this as well.

III. FACTS

A. Undisputed Facts

On May 22, 1992, Garnet Bellamy sustained injuries when she fell onto her head from a rolling x-ray table. The rolling x-ray table was temporarily unattended by defendant’s staff when plaintiff fell. Defendant’s staff had not secured plaintiff to the rolling x-ray table. Defendant’s staff had not set any brake on the rolling x-ray table while plaintiff was on it. All of this occurred while plaintiff was a patient at defendant’s hospital. Defendant is a health care provider under Cal. Civ. Proc. section 340.5.

B. Disputed Facts

Plaintiff contends that defendant had a duty to either secure plaintiff to the table, set a brake on the table, not leave the table unattended, or any combination of the foregoing that would ensure plaintiff’s safety while on the table; that defendant breached this duty; that defendant’s breach is the proximate cause of plaintiff’s injuries; and that plaintiff suffered damages as a direct result of plaintiff’s breach. Plaintiff further asserts that her injuries are the result of defendant’s professional negligence under Cal. Civ. Proc. section 340.5 because plaintiff was receiving professional services at the time of her fall. Defendant contends that it owed no duty to plaintiff as alleged by plaintiff because her medical, physical and emotional condition, as well as her age and state of alertness, at the time did not require her to be secured to the table or to have a brake set or constant attendance by staff. Defendant also contends that if it is liable for any negligence, it would be liable for nothing more than strict liability and it is not liable for professional negligence because no high level of skill was required for securing plaintiff to the table, setting a brake, or being in constant attendance.

The parties have attempted to resolve the disputed issues over the course of much telephonic and written dialogue, to no avail, and believe this case must resolved at trial.

IV. DAMAGES

Plaintiff has suffered special damages in a total amount of $14,820 and general damages of approximately $5,000. Plaintiff’s special damages consist of medical bills, loss of earnings, domestic services for house and yard maintenance, and transportation services. Plaintiff suffered a blunt trauma to the head resulting in a concussion and requiring ten stitches and an overnight stay in the hospital for observation. Plaintiff’s aftercare consisted of bed rest for ten days, during which time she was unable to go to work and was required to return to the hospital for evaluation every two days. After the initial ten days plaintiff was instructed to refrain from housework, yardwork or other physical activity, as well as operating equipment or driving, for another fourteen days and return for evaluation once weekly during that time. Plaintiff was required to retain the services of a housecleaner, gardener, and taxicabs for her return evaluations, grocery shopping, and maintenance of her home and yard for a total of one month, during which time she was deprived of the quality of life to which she was accustomed, including social activities and recreation. Plaintiff is actively involved in a gardening cooperative in her community which requires her physical involvement every Saturday – she missed four Saturdays. Plaintiff also belongs to a local ballroom dance club which competes with other dance clubs in the area and requires that plaintiff practice with her partner four or five times weekly and participate in competitions about twice monthly – she missed not less than sixteen practice sessions and three competitions. Plaintiff has medical insurance through her employer, which carrier is informed of this lawsuit and has requested reimbursement from plaintiff should she receive any award. Plaintiff is fully recovered and has no residual injuries.

V. SUMMARY OF DAMAGES

A. Medical bills: $11,270

Emergency room, $4,432
Inpatient overnight, $5,252
Return evaluations, $1,243
Prescription medications and bandages, $343

B. Loss of earnings: $2400

Plaintiff earns $1200 per week and missed two weeks of work.

C. Domestic services and transportation: $1150

Housecleaning, $400
Gardener, $200
Transportation, $550

VI. VALUATION AND LIABILITY

Plaintiff intends to prove at trial that defendant, as a health care provider under Cal. Civ. Proc. section 340.5, owed a duty to plaintiff, breached that duty; proximately caused plaintiff’s injuries thereby, plaintiff suffered damages as a direct result of plaintiff’s breach, and that her injuries are the result of defendant’s professional negligence under Cal. Civ. Proc. section 340.5 because plaintiff was receiving professional services at the time of her fall.

As it is undisputed that defendant is a health care provider under Cal. Civ. Proc. section 340.5, plaintiff need only prove professional negligence under that section which reads in pertinent part that “’professional negligence’ is defined as a negligent act or omission to act by a health care provider in the rendering or professional services, which act or omission is the proximate cause of a personal injury, provided that such services are within the scope of services for which the provider is licensed and which are not within the any restriction imposed by the licensing agency or licensed hospital.” However, defendant intends to show that placing plaintiff on an x-ray table does not constitute professional services in and of itself, and that only the actual interpretation of plaintiff’s x-rays by a licensed professional comprise professional services. Plaintiff intends to overcome this defense by showing that, as a matter of law, the placement of plaintiff on an x-ray table constitutes professional services under Murillo v. Good Samaritan Hospital, 99 Cal. App. 3d 50 (1979). There, the court held that the test for a hospital’s professional negligence “is not whether the situation calls for a high or a low level of skill, or whether a high or low level of skill was actually employed, but rather the test is whether the negligent act occurred in the rendering of services for which the health care provider is licensed.” Therefore, plaintiff will show that defendant was rendering professional services to plaintiff at the time of her injury, and that such services are within the scope of services for which defendant is licensed and which are not within the any restriction imposed by the licensing agency or licensed hospital.

The nature and extent of plaintiff’s injuries and resulting damages are not at issue herein, and defendant has not contested or questioned them in the context of liability. Providing plaintiff can overcome the issue of whether or not defendant was professionally negligent, the only matter left for this court will be the issue of general damages. Plaintiff believes this court will find an equitable award in that regard to be approximately $5,000.

VII. LIST OF EXHIBITS

Exhibit A: medical bill and records from CVGH emergency room
Exhibit B: medical bill and records from CVGH inpatient services
Exhibit C: medical bills and records from CVGH outpatient services for return evaluations
Exhibit D: receipts for prescription medications and bandages
Exhibit E: affidavit of lost wages from ABC, Inc., plaintiff’s employer
Exhibit F: invoice from Homeclean, Inc. for domestic house cleaning
Exhibit G: invoice from Yardworkers, Inc. for yard maintenance
Exhibit H: receipts for taxicabs to and from grocery store trips and all return medical evaluations

VIII. CONCLUSION

Plaintiff can prove special damages in the amount of $14,820. Plaintiff also believes she will prove, as a matter of law, that defendant had a duty to either secure plaintiff to the table, set a brake on the table, not leave the table unattended, or any combination of the foregoing that would ensure plaintiff’s safety while on the table; that defendant breached this duty; that defendant’s breach is the proximate cause of plaintiff’s injuries; and that plaintiff suffered damages as a direct result of plaintiff’s breach. Based on plaintiff’s special damages, it is her contention that an equitable award for general damages would be approximately $5,000. Therefore, based on defendant’s failure to accept either of plaintiff’s section 998 offers to compromise for either $17,000 or $18,500, plaintiff anticipates entitlement to attorneys’ fees and suit costs according to proof.
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PROOF OF SERVICE BY MAIL (Cal. Civ. Proc. section 1013(a)

1. I am over the age of 18 years and not a party to this action. I am a resident of or employed in the county where the mailing took place.

2. My residence or business address is 1234 Main Street, Los Angeles, CA (91011).

3. I served the copy of Plaintiff’s Mandatory Settlement Conference Brief by enclosing it in an envelope and depositing the sealed envelope with the United States Postal Service with postage fully prepaid.

4. The envelope was addressed and mailed as follows on April 11, 2005 at Los Angeles, California:

James Hurlbutt
Hurlbutt, Clevenger, Long, Vortmann & Rauber
4312 Oak Street
Sacramento, CA 92025

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date: April 10, 2005

2nd student posting


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1. IN THE SUPERIOR COURT OF KINGS COUNTY
No. 3284

Garnet Bellamy,
Plaintiff and Appellant
v.
Central Valley General Hospital,
Defendant and Respondent

MANDATORY SETTLEMENT CONFERENCE BRIEF

APPEARANCES:
Greg A. Morris
Tritt & Tritt
456 Main St.
Upland, CA 91787

James F. Tritt
Tritt & Tritt
456 Main St.
Upland, CA 91787

ATTORNEYS FOR PLAINTIFF AND APPELLANT

James P. Hurlbutt
Hurlbutt, Clevenger, Long, Vortmann & Rauber
888 Foothill Blvd.
Glendale, CA 90452

ATTORNEY FOR DEFENDANT AND RESPONDENT

STATUS OF LITIGATION:
On August 23, 1993, Garnet Bellamy filed a malpractice and personal injury complaint against Central Valley General Hospital (a.k.a. Sacred Heart Hospital) and various Doe defendants, for general negligence and premises liability. The hospital’s objection was based on the sole fact that the action was invalid because the one-year statute of limitations for personal injury actions had passed [Page 50 Cal.App.4th 800; Code Civ. Proc., fn. 1 § 340, subd. (3)]. Bellamy opposed the demurrer based on section 364, subdivision (d), which allows for a 90-day extension of the limitations period after serving notice for professional negligence actions against health care providers. The hospital’s rebuttal maintained that section 364 does not apply because the complaint is for general negligence and not professional negligence. The hospital’s demurrer was sustained by the municipal court; the appellate department of the superior court later affirmed the decision, denied rehearing and declined Bellamy’s request for certification to the Supreme Court. Bellamy has now filed a timely petition for a writ of mandate with the Supreme Court, which issued an order to show cause why relief should not be granted in this case.

FACTS:
On May 22, 1992, while in the hospital, Ms. Bellamy fell off a rolling X-ray table and sustained injuries to her head. Her complaint is based on the contention that the medical professionals attending her breached their duty of care in that they left her by herself without having secured the table.

DAMAGES:
Plaintiff is suing the hospital for past and future medical expenses, loss of earning capacity, and pain and suffering.
Past and future medical expenses – Ms. Bellamy has accumulated over $15,000 in medical bills from doctors, radiology, and physical therapy. There will be substantial future medical expenses as well. Both her primary care physician and her physiotherapist are willing to testify as to the necessity of treatment (past, present and future).
Loss of earning capacity – Ms. Bellamy is a well-known concert pianist. Due to the injuries sustained from her fall, she was not able to perform for six months and lost a lucrative recording contract. Supporting documentation is available. Additionally, a director from the recording company is willing to testify about the cancelled contract.
Pain and suffering – as the result of her injuries and her inability to perform as a concert pianist, Ms. Bellamy, suffered from anxiety attacks and depression. Except for visits to her doctor and physiotherapist, she did not leave the house for 6 months. We have corroborating statements to this effect from her husband, parents, and several close friends. Additionally, Ms. Bellamy has given permission for her psychiatrist to testify (she has been under his care for several years).

SUMMARY OF DAMAGES
Past medical bills: $8,598.88 (radiology) + $1,598.00 (office visits to primary care physician) + $5,358.22 (physiotherapy). Total: $15,555.10.
Future medical bills: $25,000 for continued physiotherapy.
Loss of earning capacity: $74,000 (cancelled performances) + $150,000 (cancelled recording contract) = $224,000.
Pain and suffering: $3,000,000 (three million).

VALUATION OF THE CASE
The Medical Injury Compensation Reform Act (MICRA). (Stats. 1975, Second Ex. Sess. 1975-1976, chs. 1, 2, pp. 3949-4007) defines professional negligence as "a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury [...], provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital." (§ 340.5, subd. (2)” The medical staff of the hospital had a duty of care to Ms. Bellamy and breached that duty by negligently leaving her unattended, with complete disregard for her safety. In Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, the court held that it is a hospital’s duty to “use reasonable care and diligence in safeguarding a patient committed to its charge […] and such care and diligence are measured by the capacity of the patient to care for himself.” Moreover, “if an unsafe condition of the hospital's premises causes injury to a patient, as a result of the hospital's negligence, there is a breach of the hospital's duty qua hospital." (99 Cal.App.3d at pp. 56-57.). Whether negligence is professional rather than ordinary depends on whether the “negligent act occurred in the rendering of services for which the health care provider is licensed. When a seriously ill person is left unattended and unrestrained on a bed or gurney, the negligent act is a breach of the hospital's duty as a hospital to provide appropriate care and a safe environment for its patients." (Murillo v. Good Samaritan Hospital, supra, 99 Cal.App.3d at p. 57.) In Taylor v. U.S. (9th Cir. 1987) 821 F.2d 1428, 1432, for example, the court held that the hospital was liable for the dislocation of a patient’s ventilator, "regardless of whether separation was caused by the ill-considered decision of a physician or the accidental bump of a janitor's broom". Ms. Bellamy’s injuries occurred while she was in a hospital, receiving professional services – even though securing the gurney did not require any specific professional skill. As stated in Williams v. Superior Court (1994) 30 Cal.App.4th 318, 325-327 [36 Cal.Rptr.2d 112]), "it is not the degree of skill required but whether the injuries arose out of the rendering of professional services that determines whether professional as opposed to ordinary negligence applies" (30 Cal.App.4th at p. 327). Ms. Bellamy’s injuries were therefore the result of professional negligence.

LIST OF EXHIBITS
A. Doctor’s Bill
B. Radiologist’s Bill
C. Physiotherapist’s Bill
D. Contract for Five Piano Concerts
E. Recording Contract

CONCLUSION
Since Ms. Bellamy’s injuries were caused by professional negligence, the 90-day extension of the limitations period after serving notice applies and her action is legal. Central Valley General Hospital demurred on the grounds that the suit was invalid because it was ordinary negligence and therefore time-barred – it conceded that the fall was proximately caused by the negligence of its technician and that the hospital would have been liable if plaintiff would have brought suit within one year of sustaining her injuries. Therefore, it would be in everybody’s best interest to discuss a settlement.

Proof of Service by Mail

1. I am over the age of 18 and NOT a party to this action. I am a resident of or employed in the county where the mailing took place.

2. My residence or business address is 1692 Pinehurst Drive, Upland, CA 91784

3. I served the copy of the Mandatory Settlement Conference Brief by enclosing it in an envelope AND

b. placing the envelope for collection and mailing on the date and at the place shown in item 4 following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid.

4. The envelope was addressed and mailed as follows:
a. County of Los Angeles
b. 5458 Pasadena Road, Pasadena 90235
c. Date mailed: November 1, 1993
d. Place of mailing (city and state) Upland, CA

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date: November 1, 1993

Michael German
MICHAEL GERMAN