PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

XXX

XXX

XXX

XXX

 

SUPERIOR COURT OF THE STATE OF XXX

COUNTY OF XXX– SOUTH DISTRICT

 

JEFFREY ITO,

Plaintiff,

vs.

XXX  FOUNDATION HEALTH PLAN, INC.,

Defendant,

 Case No: XXX

 

Assigned for All Purposes To:

Hon. XXX

Dept. G

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT.

 

 

 

 

 

 

 

 

 

 

 

 

 

            TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

            PLEASE TAKE NOTICE THAT on [INSERT DATE] at [INSERT TIME] in Courtroom ……. of the above-entitled court, at [INSERT ADDRESS], Plaintiff, pro se, will and does move the court for an order granting summary judgment under XXX Rules of Court Rule XXX

 

The grounds for this relief are that the undisputed facts demonstrate that the Plaintiff is entitled to judgment on its first, second, and third cause of action because the Defendant violated its duty to the Plaintiff.

 

This motion is based on this notice of motion and motion, the memorandum of points and authorities, the concurrently filed appendix of evidence, all records, documents, and papers in the Court’s file, and any written and oral argument presented at the hearing in this matter.

 

Dated: [INSERT DATE]                                            Respectfully Submitted,

Jeffrey Ito

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

                                                                                                                           Page

  1. INTRODUCTION…………………………………………………………………………5
  2. STATEMENT OF FACTS………………………………………………………………5,6
  • SUMMARY JUDGMENT STANDARD OF REVIEW………………………………….7
  1. ARGUMENT…..…………………………………………………………………..7,8,9,10
  2. BREACH OF DUTY………………………………………………..…………7,8,9
  3. ADMISSIONS AND EVIDENCE…………………………………………..…9,10
  4. CAUSATION AND DAMAGE……………………………………………..…9,10
  5. EXPERT WITNESS……………………………………………………………9,10
  6. CONCLUSION……………………………………………………………………………10

 

 

 

 

 

 

 

TABLE OF AUTHORITIES

                                                                                                                         Page

CASES

 

XXXX………………………………………………………………………………..8

STATUTES

CA Civil Code of Procedure Section 473(c)……………………………………………………….7

 

 

 

 

 

 

 

 

 

 

MEMORANDUM OF POINTS AND AUTHORITIES.

  1. INTRODUCTION.
  2. Comes now the Plaintiff XXX, pro se, hereby submits the following memorandum of law in support of his Motion for Summary Judgment.
  3. The Plaintiff respectfully requests that the Court grant the Motion for Summary Judgment as the Plaintiff has effectively demonstrated that the Defendant owed a reasonable standard of care to the Plaintiff, and such duty was breached by the Defendant, resulting in significant harm to the Plaintiff.
  4. It is important to note that the Defendant, in its discovery responses, has admitted to the breach of the standard of care and/or the causation of harm to the Plaintiff. This admission further supports the Plaintiff’s position and strengthens the case for granting the Motion for Summary Judgment.
  5. STATEMENT OF FACTS.
  6. This case concerns medical negligence where Defendant misdiagnosed and prescribed unnecessary medication for Plaintiff.
  7. The Plaintiff was a member of Defendant health insurance plan from April XXX to May XXX with a Medical Record Number XXX
  8. On May XXX, the Plaintiff had an onboarding phone call with XXX. and scheduled a physical examination with his primary care physician, XXX (Exhibit A).
  9. On May XXX, the Plaintiff was seen by XXX for a routine physical examination. At this time, the Plaintiff had requested a referral to a neuroscientist (Exhibit B).
  10. On June XXX, the Plaintiff had a telephone appointment visit with John Darrell Waldron M.D. where the Plaintiff described that he needed to see a neuroscientist to properly diagnose what was going on with his brain and requested the following examinations: EEG and fMRI. Within the visit notes, Dr. Waldron stated that, “he attempted to educate me about the field of neuroscience” and that XXX, “did not have a clinical neuroscientist on staff” (Exhibit C). Instead of referring the Plaintiff to a neuroscientist or similar, Dr. Waldron suspected obsessive compulsive disorder (OCD) and referred the Plaintiff to a psychiatrist.
  11. On June XXX, the Plaintiff had a telephone adult initial evaluation and treatment plan with XXX where the Plaintiff described to Dr. Wyatt that he was experiencing a “high level problem that only a neuroscientist can help me with” (Exhibit D).
  12. On July XXX, the Plaintiff had an integrated video visit outpatient psychiatric medication evaluation with Rhiana Roque M.D. The Plaintiff described to Dr. Roque that people were spying on the contents of his conscious experience with holography (connectionism) and that it was a high-level problem that required an expert neuroscientist. The Plaintiff also requested high resolution brain imaging. Within the visit notes, Dr. Roque noted a diagnostic impression of “Schizophrenia vs Delusional Disorder” and assessed that the Plaintiff had psychotic symptoms and prescribed Ziprasidone (Geodon) to the Plaintiff (Exhibit E). Once again, the Plaintiff’s request for a neuroscientist was not honored.
  13. On February XXX, the Plaintiff completed a CT scan that was ordered by Dr. Roque. Within the test results, there was no evidence of acute disease or definite space-occupying process and thus organic causes were ruled out (Exhibit F). After this visit, the Plaintiff requested another expert opinion from a neurologist to get high resolution brain imaging techniques, specifically EEG or fMRI examinations, which was denied by both Dr. Waldron and Dr. Roque and was informed that he would continue his psychotic disorder diagnoses and prescription.

 

  • SUMMARY JUDGMENT STANDARD OF REVIEW.

 

  1. Pursuant to CA Civil Code of Procedure section 473 (c) of the motion of summary judgment shall be granted if all the papers submitted show that there is not triable issue as to any material of fact and that the moving party is entitled to a judgment as a matter of law.” See XXX;
  2. To prevail on a motion for summary judgment, the moving party has the burden of showing the absence of any genuine issues as to all the material facts, which under the applicable principles of substantive law, entitle him/her to judgment as a matter of law. Union Bank v. Superior Court XXX.
  3. Summary Judgment allows a judgment to be entered without the proceedings of a full trial. CA Civil Code of Procedure Section 473(c) restricts summary adjudication motions to four kinds of issues:

A party may move for adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

  1. ARGUMENT.
  2. BREACH OF DUTY.
  3. The Defendants, as a licensed health care service plan, owed the Plaintiff a reasonable standard of care as a paying member of the Kaiser Health Insurance plan. It is evident from the evidence and the Defendant’s discovery responses that they breached their duty by failing to meet the reasonable standard of care. They misdiagnosed the Plaintiff’s medical condition and prescribed him with an unnecessary prescription, leading to further harm and damages.
  4. Both Dr. Waldron and Dr. Roque who are employees of the Defendant failed to exercise a reasonable standard of care and diligence that a typical medical doctor would in their profession when conducting their diagnoses and thus breached the standard of care that they owed the Plaintiff XXX.
  5. Over the course of the Plaintiff’s visits to the Defendant, the Plaintiff made several requests to see a neuroscientist or even a neurologist to conduct appropriate tests in order to obtain a second opinion but such requests were denied by both Dr. Waldron and Dr. Roque.
  6. Waldron failed to conduct a thorough clinical examination and misdiagnosed the Plaintiff with Obsessive Compulsive Disorder (OCD) and consequently referred the Plaintiff to the psychiatric department where he was also misdiagnosed with schizophrenia and psychotic disorder and was prescribed Ziprasidone (Geodon).
  7. After a completed CT scan that disproved organic causes, the Plaintiff was denied high resolution brain imaging by both Dr. Waldron and Dr. Roque and was informed that he would continue with his psychotic disorder diagnoses and prescription.
  8. By reason of the Defendant’s negligence that resulted in the Plaintiff’s misdiagnoses including obsessive compulsive disorder, schizophrenia and psychotic disorder, the Defendant breached the standard of care owed to the Plaintiff and caused real economic and harm to the Plaintiff.
  9. The Defendant also failed to order the appropriate tests to prove or disprove or seek expert opinion on such diagnoses. Consequently, the Plaintiff has suffered the following damage:
  10. Emotional distress and a negative impact on his health and wellbeing.
  11. Time spent with being misdiagnosed and unnecessary prescription.
  12. Inability to see a neuroscientist, neurologist or obtain accurate brain scans for high resolution brain imaging.
  13. Health insurance costs for twelve consecutive months as well as travel and parking expenses.
  14. ADMISSIONS AND EVIDENCE.
  15. The Defendant has admitted several crucial facts within its discovery responses, including but not limited to:
  16. On June XXX., diagnosed the Plaintiff’s medical condition as obsessive compulsive disorder (OCD) and referred him to the psychiatric department (Exhibit C).
  17. On June XXX conducted an adult initial evaluation and treatment plan, where the Plaintiff expressed the need for a neuroscientist’s expertise (Exhibit D).
  18. On July XXX., diagnosed the Plaintiff’s medical condition as psychotic symptoms and prescribed him with Ziprasidone (Geodon) (Exhibit E).
  19. On February XXX, a CT examination ordered by XXX., ruled out organic causes and showed no evidence of acute disease or definite space-occupying processes (Exhibit F).
  20. CAUSATION AND DAMAGE.
  21. The Defendant’s breach of duty directly caused the damage suffered by the Plaintiff, which are outlined in the attached complaint. The evidence and admissions substantiate the causal connection between the Defendant’s actions and the harm that the Plaintiff has endured.
  22. EXPERT TESTIMONY.
  23. Based on the clarity of the evidence and the Defendant’s admissions, it is unlikely that expert testimony will be necessary to establish the Defendant’s breach of duty. The Defendant’s failure to meet the reasonable standard of care is apparent from the records and responses provided.
  24. CONCLUSION.
  25. In summary, the Plaintiff asserts that the Defendant had a clear obligation to provide him with a reasonable standard of care as a valued paying member of the Defendant’s insurance plan. Regrettably, the Defendant breached this duty, causing significant harm to the Plaintiff.
  26. It is noteworthy that the Defendant has explicitly acknowledged this critical breach of the duty owed to the Plaintiff in its discovery responses. This admission underscores the gravity of the situation and strengthens the Plaintiff’s case for the grant of summary judgment.
  27. Consequently, based on the compelling evidence and the Defendant’s admission, the Plaintiff, Jeffrey Ito, is unquestionably entitled to summary judgment.
  28. Wherefore, the Plaintiff respectfully requests that the Court, in the interest of justice, grants him summary judgment as a matter of law. The Plaintiff firmly believes that such a decision aligns with the facts presented and will serve to bring about a just resolution to this matter.

 

Dated:                                                                                                 Respectfully submitted,

___________________

XXX

 

Moving Party’s Undisputed Material Facts and Supporting Evidence: Opposing Party’s Response and Supporting Evidence:
1.      The Plaintiff was a member of Defendant’s health insurance plan from April XXX, to May XXXX, with a Medical Record Number XXX (Exhibit A).
  • Exhibit A: Health insurance plan records indicating Plaintiff’s membership dates and Medical Record Number.
2.      On May XXX, the Plaintiff had an onboarding phone call with Daniel Moten L.V.N. and scheduled a physical examination with his primary care physician, XXX., on May XXXX (Exhibit A).

·         Exhibit A: Phone call records and appointment schedule.
3.      On May XXX, the Plaintiff was seen by XXX. for a routine physical examination. At this time, the Plaintiff requested a referral to a neuroscientist (Exhibit B).
  • Exhibit B: Medical records and notes from the physical examination indicating the Plaintiff’s request for a referral to a neuroscientist.

 
4.      On June XXX the Plaintiff had a telephone appointment visit with John XXX  In this appointment, the Plaintiff described the need to see a neuroscientist to properly diagnose his brain condition and requested EEG and fMRI examinations. Dr. Waldron stated that Kaiser Permanente did not have a clinical neuroscientist on staff (Exhibit C).

·         Exhibit C: Medical records and notes from the telephone appointment indicating the Plaintiff’s request for neuroscientist consultation and Dr. Waldron’s response.
5.      On June XXX, the Plaintiff had a telephone adult initial evaluation and treatment plan with XXX During this evaluation, the Plaintiff expressed the need for a neuroscientist’s expertise (Exhibit D).

·         Exhibit D: Medical records and notes from the evaluation indicating the Plaintiff’s expressed need for a neuroscientist’s expertise.
6.      On July XXX the Plaintiff had an integrated video visit outpatient psychiatric medication evaluation with XXX. During this visit, the Plaintiff described experiencing surveillance of his conscious experience and requested high-resolution brain imaging. Dr. Roque diagnosed the Plaintiff with psychotic symptoms and prescribed Ziprasidone (Geodon) (Exhibit E).

·         Exhibit E: Medical records and notes from the psychiatric evaluation indicating the Plaintiff’s description of surveillance and request for high-resolution brain imaging, as well as the diagnosis and prescription by Dr. Roque.
7.      On February XXX, a CT examination ordered by XXX ruled out organic causes and showed no evidence of acute disease or definite space-occupying processes (Exhibit F).

·         Exhibit F: CT scan results indicating the absence of organic causes and acute disease or space-occupying processes.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PROOF OF SERVICE

I, XXX, declare:

That I am the Plaintiff and I am over the age of eighteen years and a party to the action in which this service is made.

On [INSERT DATE], I served the Plaintiff’s Motion for Summary Judgment, on the Defendant in this action by causing the service delivery of the above document as follows:

 

XXX

XXX

XXX

XXX

XXX

Telephone XXX

 

Attorneys for Defendant,

XXX, INC.

 

DATED:

___________________

XXX

 

 

 

 

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