) ) N. State College Blvd. Suite Orange, CA Telephone: (714) Fax: (714) ) )

Transcription

1 CASE MANAGEMENT MEMORANDUM A telephonic hearing was conducted November 1, 2012 (Hearing, to consider the Motion for Summary Judgment submitted on behalf of Respondents, et al. t (Claimant.. of, Esq., appeared on behalf of Claimant appeared on behalf of Having considered the submissions of the parties, including oral argument offered during the Hearing, the Arbitrator makes the following findings and orders: vs.., Petitioner, Respondents. ARBITRATION NO JAMS ARBITRATION NO CASE MANAGEMENT MEMORANDUM No. 4 (Ruling on Motion for ~ Summary Judgment ARBITRATION PROCEEDING JUDICIAL ARBITRATION AND MEDIATION SERVICE 1 Hon. James L. Smith (Ret. JAMS N. State College Blvd. Suite Orange, CA Telephone: ( Fax: (

2 2 medical care and treatment provided to Claimant by fell below the applicable standard of 3 care. The care and treatment addressed by the Claim herein commenced on or about December 4 22, 2009, when Claimant presented himself to for the trimming ofhis toenails, and 5 concluded when Claimants right leg was amputated below the knee in or about June, CASE MANAGEMENT MEMORANDUM 2 28 ORDER: submissions it is clear that Claimant received care and treatment well within the applicable 26 standard of care and Motion for Summary Judgment will be granted. 24 In summary, assuming the accuracy of all uncontested material facts alleged in the 22 issues presented. There has been no evidence offered that would suggest a causal relationship 23 between the use of that medication and the injuries claimed herein. 20 of Claimant regarding the conduct of in prescribing Allopurinol, a drug used in the 21 treatment of gout, when uremic acid tests later showed there was no gout are not material to the 18 below the standard of care is moot in that there is no evidence to support a finding there existed 19 a causal relationship between that procedure and the injuries claimed. Similarly, the contentions 17 Claimant's contention that the manner in which the toe nail trimming was done was 8 just below the knee. On December 22, 2009, when first treated by, Claimant was 84 9 years old and suffering from numerous and complex health issues described in the submissions 10 of both parties, including respiratory insufficiency, asthma, Chronic Obstructive Pulmonary 11 Disease, likely metastasized kidney cancer, hyperlipidemia (elevated lipid levels in blood 12 caused by diabetes, chronic renal insufficiency (failure of kidneys to filter toxins and waste 13 products from the blood, lacunar brain infarcts (occlusion of arteries feeding the brain, 14 congestive heart failure, diabetic retinopathy (damage to the retina of the eye caused by 15 diabetes, peripheral artery disease (reduction ofblood supply to the portions the body distal to 16 the heart, and Diabetes Mellitus Type II (adult on-set diabetes. 6 Claimant contends trimmed the toenail on the left big toe too short, thus 7 precipitating a series of events that ultimately resulted in the amputation of Claimant's right leg There are no triable issues of material fact supporting Claimant's contention that the

3 2 and is granted. An Award in favor of 3 Respondents is hereby made. 4 This being a final adjudication of rights Claimant is advised that nothing in this 5 arbitration prohibits or restricts Claimant, as an enrollee of Respondents, from discussing or CASE MANAGEMENT MEMORANDUM Date: November 5, ofmanaged Health Care. 6 reporting the underlying facts, results, terms and conditions of this decision to the Department 1 The Motion for Summary Judgment submitted by Respondents

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12 1 Hon. James L. Smith (Ret. JAMS N. State College Blvd. Suite Orange, CA Telephone: ( Fax: ( ARBITRATION PROCEEDING JUDICIAL ARBITRATION AND MEDIATION SERVICE IO vs. Claimant, Respondents. l Arbitration No JAMS Reference No Arbitrator: Hon. James L. Smith (Ret. I AWARD OF ARBITRATOR All parties herein having submitted this dispute for binding arbitration pursuant to JAMS COMPREHENSIVE RULES DF ARBITRATION and the Arbitrator having been selected, an arbitration hearing was properly noticed and conducted on November 26, 2013, at the offices of JAMS, 707 Wilshire Blvd., Los Angeles, California. of, appeared on.behalf of Respondents. There was no appearance by or on behalf of Petitioner 28 AW ARD OF ARBITRATOR

13 I Counsel for Respondents,, was sworn and testified that all 2 of the factual allegations contained in Respondent's Arbitration Management Brief dated 3 October 22, 2013, are true and correct of his own knowledge. 4 The Arbitrator makes the following AW ARD and provides a STATEMENT OF 5 REASONS for such Award. The Statement of Reasons provided herein shall not be deemed a 6 part of the Award. 7 8 STATEMENT OF REASONS 9 10 Claimant's Demand for Arbitration was filed on his behalf by, Esq., on September 27, Shortly thereafter, on November 2, 2012, Respondents served written discovery relating to he claims made. No responses were provided by Claimant. An Arbitration Management Conference was conducted January 7, 2013, and continued at the request of Claimant. On January 18, 2013, Mr. withdrew as counsel for Claimant and Claimant was substituted in in prqpria persona. A second Arbitration Management Conference was conducted March 29, Claimant did not appear, although his father, (, a non~attomey, did appear. was advised that he could not formally represent his son in this proceeding and was urged by the Arbitrator to take whatever steps were necessary to obtain legal representation for Claimant. The Arbitrator emphasized the importance of the various procedural rules that apply in arbitration proceedings and the problems that would likely result if Claimant continued to represent himself This admonition was repeated in an effort to emphasize its importance. assured the Arbitrator that steps were bein~ taken and that Claimant would be represented counsel. After the failure of Claimant to provided responses to disoovery, Respondents notice Claimants deposition for July 30, Prior to that date counsel for Respondents was contacted by and told Claimant was in the process of retaining Mr. ~Esq., to 28 2 AWARD OF ARBITRATOR

14 I represent Claimant in this action. In reliance upon this Respondents cancelled the deposition 2 noticed for July 30, Mr. did not substitute in as counsel for Claimant On August 7, 2013, Respondents served on Claimant Requests for Admission. No responses were provided by Claimant. On September 11, 2013, Respondents served on Claimant its Demand for Exchange of Expert Witnesses. No response to this demand was provided by Claimant. Respondent again noticed Claimant's deposition for October 10, Claimant failed to appear for his deposition. Claimant's failure to respond to the Requests for Admission results in those requests being deemed admitted. Included in the Requests for Admission was the following: 11 REQUEST FOR ADMISSION NO. 1: 12 Admit that nothing ' or 13 their employees or agents did or failed to do caused or was a substantial factor in causing YOU 14 (The term "YOU" shall mean Claimant, any injury or damage. 15 Based on the above findings the Arbitrator will find -in favor of Respondents and against 16 Claimant in this Arbitration AWARD The Arbitrator finds for Respondents ; and,, and against Claimant Claimant shall take nothing by this action Date: November 26, 2013 ' Nothing in this arbitration decision prohibits or restricts the enrollee from discussing or reporting the underlying facts, results, terms and conditions of this decision to the Department of Managed Health Care (DMBC. 3 AWARD OF ARBITRATOR

15 Attorneys for Respondents, 5,, and IN THE MATTER OF THE ARBITRATION BETWEEN 9 10 ARBITRATION NO vs. Claimant, tpr POSEB] ORDER GRANTING RESPONDENTS AND 14, and MOTION FOR SUMMARY JUDGMENT Respondents. Date: December 5, 2013 Time : 9 : 3 0 am Place: VIA TELEPHONIC HEARING ( , PRESS * The motion of respondents 21, and 22 for Summary Judgment came on regularly 23 for hearing by the Honorable James L. Smith on December 5, Claimant appeared telephonically in Pro Per and respondents 25 appeared telephonically by their attorney of record herein, 26, Esq. of 27, A Professional Corporation. 28 RESPONDENT'S REPLY TO CLAIMANT'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

16 Having read and considered the moving papers, the opposition papers, and the reply papers, and having heard and considered the arguments of Claimant and counsel, the Arbitrator finds that the subject motion is well founded and the same is granted since claimant failed to retain any controverting expert testimony in support of her claims. Good cause appearing therefor, IT IS HEREBY ORDERED that respondents Motion for Summary Judgment is granted. 10 I.I 11 I Nothing in this arbitration decision prohibits or restricts the enrollee from discussing or reporting the underlying facts, results, terms or conditions of this decision to the Department of Managed Health Care. Dated: \z( lb}($ I,,,.~"'...,~., --~~ ~--L.. Hqno1able James L. Smith (Ret., ~j::bijrator l/ 28 2 RESPONDENT'S REPLY TO CLAIMANT'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

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