Sample Memorandum of Points and AuthoritiesSupporting Motion for Summary Judgment

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 _ __ _ _ _ _ _ _ _