__[Attorney name]__
__[Address]__
__[Telephone number]__
Attorney for __[e.g., Defendant]__, __[name]__
_ _ _ _ _ _ Court, County of _ _ _ _ _ _
__[_ _ _ _ _ _ District]__
_ _ _ _ _ _ _ _ _ _ _ _ _ ) No. _ _ _ _ _ _
Plaintiff(s))
vs. )MEMORANDUM OF POINTS AND
)AUTHORITIES SUPPORTING
_ _ _ _ _ _ _ _ _ _ _ _ _ ) __[NAME]__'S MOTION FOR SUMMARY
Defendant(s))JUDGMENT OR SUMMARY
_________________________ ) ADJUDICATION OF ISSUES
Hearing: __[date; time]__
Department: _ _ _ _ _ _
Trial Date: __[if set]__
FACTS: __[Succinctly state facts underlying motion]__.
I. STATUTE OF LIMITATIONS FOR MEDICAL MALPRACTICE ACTIONS
IS THREE YEARS AFTER DATE OF INJURY OR ONE YEAR AFTER PLAINTIFF
DISCOVERS, OR THROUGH USE OF REASONABLE DILIGENCE SHOULD HAVE
DISCOVERED, INJURY.
Code of Civil Procedure section 340.5. See also Burgon v
Kaiser Found. Hosp. (1979) 93 CA3d 813, 155 CR 763.
Plaintiff __[name]__'s medical malpractice claim is barred
by Code of Civil Procedure section 340.5 because the alleged acts
of so-called medical malpractice occurred on or before March 3,
1994, that date of surgery (plaintiff's amended complaint at p 3;
defendant's declaration, Exhibit E). In addition, plaintiff
became aware of defendant __[name]__'s alleged medical
malpractice and all injuries allegedly sustained as a result on
or before March 12, 1994 (defendant's declaration, Exhibit E;
plaintiff's deposition at p 13, lines 5-8). This action was not
filed until April 1, 1995 (plaintiff's original complaint).
Accordingly, plaintiff's action is barred by the statute of
limitations.
II. CAUSE OF ACTION FOR BATTERY BASED ON SURGICAL
PROCEDURES PERFORMED DOES NOT LIE IF PLAINTIFF GAVE INFORMED
CONSENT TO THESE PROCEDURES.
Bradford v Winter (1963) 215 CA2d 448, 30 CR 243; Kritzer v
Citron (1950) 101 CA2d 33, 224 P2d 808.
Plaintiff consented to all surgical procedures performed.
Plaintiff was fully informed regarding the consequences and
complications that could result from the surgical procedure,
including the likelihood that he would be unable to maintain his
prior bowling average (defendant's declaration at p 3;
plaintiff's deposition at p 7, lines 13-16). In addition,
plaintiff verbally expressed his understanding of those possible
consequences, including the likelihood that he would be unable to
maintain his prior bowling average (defendant's declaration at p
4; plaintiff's deposition at p 8, lines 3-8).
Plaintiff read, dated, and executed a form entitled "Consent
to Surgery--Binding Waiver of Liability," which included the
following language: "I have discussed with my doctor in
considerable detail the nature, extent, and dangers of the
surgery to be performed, as well as the possible consequences,
complications, and side effects of that surgery, all of which I
fully understand. I still want the surgery. I do NOT want a
second opinion."
(defendant's declaration, Exhibit F; defendant's declaration
at p 10; Exhibit E of defendant's declaration).
Plaintiff read, dated, and executed this form after having
been fully informed of the consequences and complications that
could result from the surgical procedures (defendant's
declaration at p 5; Exhibit E of defendant's declaration).
III. PLAINTIFF IS NOT ENTITLED TO COMPENSATION FOR LOST
WAGES IF HE OR SHE HAS NOT BEEN EMPLOYED.
Hilliard v A.H. Robins Co. (1983) 148 CA3d 374, 412, 196 CR
117, 143.
Plaintiff did not sustain any loss of wages as a result of
defendant's act. Because plaintiff has admitted that he was
unemployed before the injury (Exhibit E of defendant's
declaration), he cannot recover for lost wages.
[IV.] __[Continue stating points, citing authorities,
and arguing position advanced]__.
Date: _ _ _ _ _ _ Respectfully submitted,
[Signature]
________________________
__[Typed name]__
Attorney for _ __ _ _ _ _ _ _ _
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Legal Forms : Set Two