Evidentiary — continued from Previous Page
At trial, it is in the best interest of
the plaintiff to introduce all of the evi- dence pertaining to past medical expens- es and payment therefore. In other words, rather than putting on evidence of all of the medical bills and leaving it to the defense attorney to show the jury that most or all of those bills were paid by insurance, plaintiff ’s counsel should introduce the total bills, then elicit testi- mony from plaintiff as to the amount paid by others on his behalf, as well as the cost to plaintiff for the insurance that paid those bills. To streamline this process, consider sending requests for admissions asking defendant to admit the following: the amount of each bill; that the amount billed was reasonable and necessary; the amount paid by the collateral source; and, the amount, if any, paid by plaintiff. •Punitive damages Regardless of the nature of the alle-
gations made against the defendant, plaintiff may not include a prayer for punitive damages in a complaint filed against a health-care provider. Code of Civil Procedure section 425.13 requires that plaintiff seek a motion to amend the complaint to add punitive damages with
evidence establishing that there is a “sub- stantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” That motion must be “filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” Although punitive damages are
rarely warranted in cases involving med- ical malpractice, this provision is fraught with potential minefields for the plain- tiff ’s attorney. If punitive damages are alleged in the complaint, they will be properly subject to a motion to strike; the time frame in which a motion to amend can be made may be exceedingly short; and, if the facts giving rise to a potential punitive damage claim are not discov- ered until after the time frame in which such a motion can be made, such dam- ages will not be recoverable. The scope of section 425.13 has
been interpreted very broadly. Stating a cause of action for an intentional tort against a health care provider usually will not abrogate the need to make a motion to amend under that section. In Central Pathology Service Medical Clinic, Inc. v.
Superior Court (1992) 3 Cal.4th 181, the Court held that identifying a cause of action as an ‘intentional tort’ as opposed to ‘negli- gence’ does not itself remove the claim from the requirements of section 425.13(a). The allegations that identify the nature and cause of a plaintiff ’s injury must be examined to determine whether each is directly related to the manner in which professional services were provided. Thus, a cause of action against a health care provider for bat- tery predicated on treatment exceeding or different from that to which a plain- tiff consented is governed by section 425.13 because the injury arose out of the manner in which professional serv- ices are provided. By contrast, a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute because the defendant’s conduct would not be directly related to the manner in which professional services were rendered.
(Id., at page 192.) The level of proof required of plain-
tiff in a motion to amend was first addressed by the California Supreme
See Evidentiary, Page 54
52 — The Advocate Magazine FEBRUARY 2012
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96