Sacramento Medical Malpractice Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Significantly, the Supreme Court in Byrd held that in Ochoa the injury-producing event was the failure to provide proper medical attention - and that observing the symptoms was sufficient for bystander emotional distress:

The injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention. Such a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson. (Bird, supra, 28 Cal.4th at p. 919-920.)

Consequently, the Plaintiffs here have properly asserted that the failure to provide proper treatment and viewing the deterioration of Sundari Patel is sufficient to claim bystander emotional distress.

The defense cites Jansen v. Children's Hospital Medical (1973) 31 Cal.App.3d 22, the Court of Appeal held that a parent cannot claim bystander emotional distress for merely learning of the medical injury after the death of the child. She [the mother in Jansen] later learned that her child's death was due to the failure to diagnose a penetrating duodenal ulcer. (Ochoa, supra, 39 Cal.3d at p. 167.) In contrast here, the husband and sister directly viewed a continuing injury in progress for hours. The husband and sister did not learn of the injury after the event.

Continue reading " Patient Bleeds To Death In Sacramento Hospital: Malpractice Suit Filed, Part 6 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

The defense cites Bird v. Saenz (2002) 28 Cal.4th 910. In Bird, the Supreme Court denied bystander emotional distress to plaintiffs who saw their decedent being briefly rushed through a hospital hallway in respiratory distress. The Supreme Court held that since the plaintiffs were not in the operating room - where a single specific act of negligence occurred - they were not bystanders. However, the the Supreme Court further discussed what can qualify as being a bystander - and visual perception of an impact on the victim is not required:

To be sure, Thing's requirement that the plaintiff be contemporaneously aware of the injury-producing event has not been interpreted as requiring visual perception of an impact on the victim. A plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative. (Wilks v. Hom (1992 2 Cal.App.4th 1264, 1272-1273. (Bird, supra, 28 Cal.4th at p. 916.)

Here the Plaintiffs contemporaneously understood that viewing the decedent's deterioration was watching injury to a close relative. In Byrd, the Supreme Court discussed Ochoa v. Superior Court (1985) 39 Cal.3d 159:

In that case [Ochoa], a boy confined in a juvenile detention facility died of pneumonia after authorities ignored his obviously serious symptoms, which included vomiting, coughing up blood, and excruciating pain. We permitted the mother, who observed the neglect and recognized it as harming her son, to sue as a bystander for NIED [negligent infliction of emotional distress].

Continue reading " Medical Malpractice Suit Filed On Behalf Of Sacramento Woman, Part 5 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

The mother in Wilks was not present at the exact moment of the specific act of negligence In Wilks, the child was injured; but the mother could claim emotional distress because of a continuing event. Consequently, the defense argument that the Plaintiffs' must view a specific act of negligence That argument is not valid; because it assumes a singular event. Here, the husband and sister were certainly present and sensorially aware of the decedent's injuries.

Further, the Supreme Court in Ochoa v. Superior Court (1985) 39 Cal.3d 159, disapproved the argument that required a sudden, brief occurrence viewed contemporaneously by the plaintiff (the exact moment argument): Our review ... leads us to the conclusion that the sudden occurrence requirement is an unwarranted restriction on the Dillon [Dillon v. Legg (1968) 68 Cal.2d 728] guidelines. Such a restriction arbitrarily limits liability when there is a high degree of foreseeability of shock to the plaintiff .... (Ochoa, supra, 39 Cal.3d at p. 168.) In Ochoa, the decedent was a thirteen year old male who died after an ongoing illness while in the infirmary of juvenile hall and this ongoing illness was witnessed by Gloria Ochoa, his mother. Gloria Ochoa viewed the symptoms of her child's decline in health. The Supreme Court found that contemporaneous observation can include the viewing of lack of medical care:

We are satisfied that when there is observation of the defendant's conduct and the child's injury and contemporaneous awareness of the defendant's conduct or lack thereof is causing harm to the child, recovery is permitted. (Ochoa, supra, 39 Cal.3d at p. 170.) Contrary to the defense, the husband and sister here can claim emotional distress for the Defendants lack of proper treatment of the decedent.

Continue reading " Husband And Sister Sue For Wrongful Death At Sacramento Hospital, Part 4 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

STATEMENT OF FACTS
On or about January 8, 2003, at about 1:30 p.m., JAMES PATEL was present in the emergency room when Sundari Patel bled excessively so that Sundari's bed, arms and legs were drenched in blood. JAMES PATEL requested that Sudari be cleaned. A nurse cleaned Sudari. Thereafter she was transferred to another room. At about 4:00 p.m., Sundari's bed again was covered with blood. JAMES PATEL again asked that Sundari be cleaned. Again a nurse cleaned her. At about 7:00 p.m. Sundari was taken for a CT scan. An hour later, Sundari was again drenched in blood. At about 9:00 p.m., JAMES PATEL saw Sundari and she was again suffering from excessive bleeding. The health care providers indicated that they were not concerned by the excessive bleeding.

Plaintiffs became worried, upset, concerned and emotionally distressed at the condition of Sundari. While in the hospital Plaintiffs were aware injury was being caused to the decedent because of the presence of excessive amounts of blood and the fact that the health care providers indicated that they were not concerned by the bleeding. Sundari was suffering a continuing injury. Plaintiffs were at the scene of the injury producing events and they knew decedent was being caused injury because of the presence of excessive amounts of blood.

THE PLAINTIFFS HAVE COMPLIED WITH THE ELEMENTS OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS PURSUANT TO THING

JAMES PATEL and MARI SINDHURI properly testified to all the elements of negligent infliction of emotional distress pursuant to Thing v. LaChusa (1989) 48 Gal.3d 644. They explicitly alleged they (1) are closely related to the injury victim; (2) were present at the scene of the injury-producing event at the time it occurs and were then aware that it is causing injury to the victim; and (3) as a result suffered serious emotional distress. (Id., 48 Cal.3d p. 667-668.)

Contrary to the motion for summary adjudication, the decedent's husband, JAMES PATEL, and sister, MARI SINDHURI were present for the injury producing event when they witnessed the excessive bleeding by the decedent. Contrary to the motion for summary judgment, viewing the excessive bleeding is not merely viewing a symptom. The moving papers have absolutely no authority that only viewing the symptoms only is not sufficient. In Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178, the Court of Appeal stated that a wife who witnessed her husband's bleeding and deprivation of oxygen but actually could not see the full extent of the deprivation of oxygen, can state a cause of action for emotional distress for witnessing the event which was still occurring :

Continue reading " Patient's Death At Sacramento Hospital Basis For Malpractice Action, Part 3 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

1. The depositions of Plaintiffs JAMES PATEL and MARI SINDHURI support their claim for bystander emotional distress under Thing, in this medical malpractice action. Here, the decedent's husband and sister have properly testified to contemporaneous observation of the continuing failure of the Defendants to properly treat Sundari and her excessive bleeding. Plaintiffs properly allege the elements of Thing v. LaChusa (1989) 48 Cal.3d 644: (1) they were closely related to the injured patient; (2) they were present at the scene of the continuing series of injury producing events at the time of these multiple events - the Defendants’ failure to properly treat the decedent, and (3) Plaintiffs suffered severe emotional distress.

2. The Plaintiffs witnessed an ongoing injury producing event - the excessive bleeding of Sundari Patel that killed her. Plaintiffs viewed a continuing injury because the Defendants' failure to adequately treat the decedent. The decedent's husband sister contemporaneously observed the continuing injury - the excessive bleeding - which continued for hours. Contrary to the moving papers, the husband and sister need not be aware of the medical processes to witness the incident, the failure to treat; nor do the Plaintiffs have to be aware of medical negligence (Ochoa v. Superior Court (1985) 39 Cal.3d 159[FN1] ; Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178). Further, the motion argues the rejected exact moment argument - that the Plaintiff must observe the exact moment of injury.

Here, the defense argues that the Plaintiffs' must view a specific act of negligence. The argument is not valid; because it assumes a singular event. This argument fails to account for a continuing injury for hours where the decedent did not receive adequate medical care. The Defendants cite Jansen v. Children's Hospital Medical Center (1973) 31 Cal.App.3d 22; however, the Supreme Court in Ochoa v. Superior Court (1985) 30 Cal.3d 159, 168, disapproved the portion of Jansen which required a sudden, brief occurrence viewed contemporaneously by the plaintiff. Here the Plaintiffs observed a series of events of an ongoing continuing injury. The Plaintiffs properly allege bystander emotional distress.

Continue reading " Family Sues Sacramento Physicians For Medical Malpractice, Part 2 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Plaintiffs' Opposition to Motion for Summary Adjudication By David X., M.D.
and Valley Physicians

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical malpractice and wrongful death action. Thirty-two year old Sundari Patel presented at herself to the defendants with abdominal pain which was later diagnosed as being from torsion of the left fallopian tube. She had excessive bleeding which was not timely addressed. The defendants should have arranged exploratory surgery to determine the source of the excessive bleeding. Because of the delay by the defendants, Sundari bled to death.

On March 1, 2003, Plaintiffs filed their Complaint alleging wrongful death and negligent infliction of emotional distress which occurred prior to the death. The decedent's husband, JAMES PATEL, and the decedent's sister, MARI SINDHURI, witnessed Sundari's excessive bleeding that cost Sundari's life.

Now, DR. X. and VALLEY EMERGENCY PHYSICIANS have filed a motion for summary adjudication asserting that the plaintiffs could not have contemporaneous observation because the husband and sister could only view the symptoms. But to the contrary, the Supreme Court in Bird v. Saenz (2002) 28 Cal.4th 910, has held that an injury-producing event can be the failure to provide proper medical attention - and that observing the symptoms was sufficient for bystander emotional distress:

Continue reading " Wrongful Death At Sacramento-area Hospital, Part 1 of 6 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Question: Are medical malpractice plaintiffs eligible to recover prejudgment interest on their jury award when their statutory offer to settle has been rejected?

F. Plaintiff Received a More Favorable Verdict as Compared to the 998 Offer:
Whether the § 998 offerer obtained a more favorable judgment is ascertained by a simple comparison between the dollar amount of the offer and the dollar amount of the total judgment. Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 662, fn. 13]

Plaintiff is entitled to 10% interest on the judgment, calculated from the date of his or her first § 998 offer that was exceeded by the judgment. Such interest continues to accrue until the judgment is satisfied. Civil Code § 3291; see Steinfeld v. Foote-Goldman Proctologic Med. Group, Inc. (1996) 50 Cal.App.4th 1542, 1550-1551, 58 Cal.Rptr.2d 371, 375 [interest accrues during pendency of appeal].

Here, the net dollar of the judgment against Dr. Kenneth B. is $3,723,000, which is to be compared with the Section 998 offer of $400,000 to determine if there was a more favorable verdict. Even if the judgment is reduced to the MICRA cap of $250,000, that amount plus the economic damages of $188,800 totals $448,800, still exceeds the section 998 offer of $400,000.

Moreover, when a defendant rejects plaintiff's §998 offer - pre and post offer costs are added to the verdict to determine if there was a more favorable verdict. In this case there are over $50,000 in costs.

Continue reading " Verdict Against Sacramento Physician For Malpractice, Part 4 of 4 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Question: Are medical malpractice plaintiffs eligible to recover prejudgment interest on their jury award when their statutory offer to settle has been rejected?

In this case, not only would the judgment for non-economic damages be reduced from $3.8 million dollars, which in and of itself, is a denial of the right to trial by jury and a nullification of their verdict, as guaranteed both by the by the 6th Amendment to the United States Constitution and the California Constitution.

This unequal treatment is apparent when compared with the non-economic damages allowed by the AIDS Vaccine Victims Compensation Fund (Health and Safety Code Section 121270). Should someone be injured as a result of volunteering to take and AIDS vaccine the statute provides there is a limitation on damages:

Damages for personal injuries, means the direct medical costs for the care and treatment of injuries to any person, including a person entitled to recover damages under Section 377 of the Code of Civil Procedure, proximately caused by an AIDS vaccine, the loss of earnings caused by the injuries, and the amount necessary, but not to exceed five hundred fifty thousand dollars ($550,000), to compensate for noneconomic losses, including pain and suffering caused by the injuries.

MICRA was enacted in 1975 by the California Legislature with a limitation of $250,000. The AIDS Vaccine Victims Compensation Act was enacted by the same California legislature in 1987, just twelve years later, but providing for more than a 100% increase in the amount allowed for non-economic damages: $250,000 versus $550,000.

Continue reading " Huge Jury Award Due To Negligence By Sacramento Doctor, Part 3 of 4 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Question: Are medical malpractice plaintiffs eligible to recover prejudgment interest on their jury award when their statutory offer to settle has been rejected?

A. Prejudgment Interest of $120,384.75:
Plaintiff is entitled to Prejudgment interest, at the rate of 10% per annum pursuant to Civil Code Section 3291. Prejudgment interest is calculated from November 24, 2003 [to February 4, 2005 (427 days)], which is the date of Plaintiff's first C.C.P. Section 998 offer to compromise for $400,000, which was not accepted by the defendant KENNETH B., M., D. and was then exceeded by the jury's verdict.

Plaintiff received a more favorable verdict against Dr. B., after the Code of Civil Procedure §998 offer. The present cash value of that verdict was $3,998,800, as found by the jury in its Special Verdict:
Ques. 3 (a): $ 53,300: Past Economic Loss.
(b): $145,500: Future Economic Loss
(C): $3.8 million for loss of love, companionship, training and guidance
Total: $3,998,800.

B: Reduction Of Non-Economic Damages from $3.8 Million To $830,250:
The non-economic damages of $3.8 million is reduced to $830,250, which is the present value in 2005 dollars of the MICRA limitation provided for in Civil Code § 3333.2 of $250,000. The declaration of Peter Formuz has been provided, and it states that since the MICRA cap of $250,000 was first legislated in 1975, it has not kept up with either inflation or the cost of living in the ensuing 29 years; and, based on the CPI index, the purchasing power of money has diminished greatly since 1975.

Dr. Formuzis states that a judgment against a health care provider in 1975 for $250,000 in non-economic damages would require the sum of $830,250 in 2005 to provide the same purchasing power as $250,000 in 1975 dollars.

Continue reading " Medical Malpractice Suit Against Sacramento Physician, Part 2 of 4 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Question: Are medical malpractice plaintiffs eligible to recover prejudgment interest on their jury award when their statutory offer to settle has been rejected?

Plaintiffs ELLEN GREENE and PETER GREENE, minors, will move the Court for an order awarding and adding prejudgment interest to the judgment in favor of plaintiffs ELLEN GREENE and PETER GREENE, minors, and against defendant KENNETH B., M.D., pursuant to Civil Code §3291 and Code of Civil Procedure Section §998, in the amount of $120,384.75, as of November 24, 2003; and $281.93 daily interest from and after February 4, 2005, to the date of entry of judgment, based upon the jury's verdict in this medical malpractice action of January 12, 2005, as follows:

Past economic loss: $ 53,300

Future economic loss: $145,500

Non-economic loss $830,250

reduced from $3.8 million

to $830,250 per the

declaration of economist

Peter Formuzis, Ph.D.

Total: $1,029,050

Note: If the Jury's Verdict for non-economic damages is reduced per Civil Code Section 3333.2, from $3.8 million to $250,000, and without any increase for inflation since 1975, the amounts become:

Past Economic Loss: $ 53,300

Future Economic Loss: $145,500

Non-economic Loss $250,000

Total: $448,800

Continue reading " Sacramento Plaintiffs Seek Full Recovery In Medical Malpractice Suit, Part 1 of 4 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES

I INTRODUCTION
This is a wrongful death action involving the death of Trevor Smith, who was a forty-one-year-old father and husband from Sacramento. He died of cardiac arrest following a lengthy period of multi-organ failure. Plaintiffs assert Defendants failed to properly diagnose and treat his condition.

Certain of defendants' expert witnesses in the pending case may testify to opinions on causation and the standard of care concerning the treatment. Some of the expert testimony may be couched in terms of “medical possibilities” rather than “medical probabilities.” California Evidence Code section 350 limits admissibility of evidence to “relevant evidence.” Relevant evidence is evidence “having some tendency in reason to prove or to disprove any disputed fact of consequence in the action”, that is, evidence that is probative of some disputed issue in the case. See Evidence Code section 210. Thus, evidence is irrelevant if it has a tendency to prove or disprove a disputed fact of consequence only by reason of drawing speculative or conjectural inferences from such evidence. On the basis of this definition, defendants' expert testimony may be irrelevant if it does not establish causation or the standard of care to a reasonable medical probability.

Section 352 of the Evidence Code permits the Court to exclude probative evidence if it is otherwise time-consuming, prejudicial, confusing or misleading. We are interested in medical probabilities, not possibilities, conjecture and/or speculation.

Continue reading " Court Addresses Medical Malpractice Issues For Sacramento Family, Part 1 of 3 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

II MEDICAL OPINION TESTIMONY MUST BE TO A REASONABLE MEDICAL PROBABILITY

An expert witness - including a medical doctor - must testify on issues of the standard of care, causation and damages, in the field of his expertise, to a reasonable medical probability. Clearly, “[a]bsolute proof or mathematical demonstration is not required.” (Foremost Dairies v. Industrial Acc. Com. (1965) 237 Cal. App.2d 560, 568-569, citing Santa v. Industrial Ace. Com. (1917) 175 Cal. 235, 237.) However, an expert must testify to a reasonable medical probability as opposed to offering mere guess work, speculation, conjecture or bare possibilities.

Conversely, if the expert cannot testify as to a reasonable medical probability as to one of the elements of medical negligence - standard of care, causation, or damage - such testimony cannot be admitted. This fundamental principle that an expert must testify to a reasonable medical probability was stated in Rowley v. Bunnell (1968) 257 Cal. App.2d 324, where establishing the time of death of two testators was at issue:
“Medical witnesses need not testify positively to support a finding of proximate cause. Their opinion of-the probabilities is sufficient for that purpose.” (Emphasis added.) (Rowley, supra, 257 Cal.App.2d at p. 341.) See also Tannyhill v. Pacific Motor Transportation Company (1964) 22 Cal. App.2d 511,521, citing to Travelers Insurance Company v. Industrial Ace. Corn. 22 Cal.2d 685. (See Robertson v. Leigh (1957) 153 Cal. App.2d 730.)

Continue reading " Wrongful Death Of Sacramento Man Due To Medical Negligence, Part 2 of 3 " »

In Schnear v. Boldrey (1972) 22 Cal. App.3d 642, plaintiffs appealed a judgment for neurosurgeon Dr. Boldrey on the ground that the trial court had committed error in allowing defendant's expert to speculate as to the possible causes for plaintiff's blindness following neurosurgery. The First District Court disagreed, stating that:“... The context and totality of his testimony clearly shows that he was testifying as to medical probabilities, giving what in the light of medical science appeared to be the most probable explanation of the event.” Schnear v. Boldrey, supra, 22 Cal. App.3d at p. 484.

Even where a case goes to the jury with a res ipsa loquitur instruction, medical experts are still required to testify to probabilities rather than bare possibilities or conjecture. In Hale v. Venuto (1982) 137 Cal. App.3d 910, 919, 187 Cal. Rptr. 357, the court found that expert testimony to establish probability of negligence (where plaintiff suffered neurological damage after knee surgery) “need only afford reasonable support for an inference of negligence from the happening of the accident alone,” citing Tomei v. Henning (1967) 67 Cal.2d 319, 431 P.2d 633, where the issue was negligence in suturing plaintiff's ureter during a hysterectomy.

III CONCLUSION
Where a defense expert speculates as to the cause of plaintiffs' damages, standard of care, causation and the surrounding circumstances the testimony should be excluded. It is the mere speculation as to possible damage that the plaintiffs seek to preclude on the grounds that they are irrelevant, or, if slightly probative, that jurors will be confused and misled on what amounts to mere speculation, guess work and conjecture.

Continue reading " Expert Testimony In Medical Malpractice Suit By Sacramento Man's Survivors, Part 3 of 3 " »