Sacramento Medical Malpractice Lawyer Blog

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

DR. BLACK'S DECLARATION OMITS VITAL FACTS

Dr. Black's declaration, through careful wording, attempts to create the picture that when any patient presents to XYZ Hospital and they are seen by a nurse practitioner, a supervising physician is automatically involved every time, working hands-on with that patient, second-guessing the nurse practitioner, and fully handling and managing that patient's care. Nothing can be further from the truth. Nurse practitioners, by their special status as mid-level practitioners are allowed (and even expected) to have a certain degree of autonomy in rendering care to patients. In fact, page 1 of the Frequently Asked Questions Regarding Nurse Practitioner Practice states that a nurse practitioner is still practicing legally when the supervising physician is 50 miles away.

Further, XYZ Medical Center's Standardized Procedures for Nurse Practitioners, that Dr. Black has mis-cited in his declaration, in actuality goes to great lengths to describe the degree and type of autonomy that nurse practitioners have. On page 4 of the Standardized Procedures, at the very onset of the General Policies, the first sentence states it is the intent of this document to authorize nurse practitioners at XYZ Medical Center Emergency Department to implement the Standardized Procedures without the immediate supervision or approval of a physician. (Emphasis added.) Page 6 of the General Policies provides that the nurse practitioner will be responsible for the preparation of a complete medical record for each patient contact per existing office policies. Moreso, under the "Supervision" heading, the nurse practitioner is authorized to implement the Standardized Procedures in this document without the direct or immediate observation, supervision or approval of a physician, except as may be specified on individual healthcare management standardized procedures.

Under the "Consultation" heading, the rules regarding when a nurse practitioner must consult with a physician clearly state on page 7 the situations wherein a physician must be consulted. These requirements are mandatory for nurse practitioners only. Thus, it is up to the nurse practitioner to seek out the physician for a consultation, if such is required under these guidelines, not the other way around. It is not a physician's duty to seek out a nurse practitioner and provide an unasked-for consultation. Physicians are not required to wander the halls, looking for patients whose very existence they are unaware of, seeking to provide consultations every time a nurse practitioner treats a patient.

Continue reading " Sacramento Woman Files Medical Malpractice Action For Her Spine Deformity, Part 5 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Dr. White was never an attending physician and merely signed Paul Brown's chart, fulfilling his administrative duties to the hospital. Dr. White in his declaration in support of his moving papers, at 2:6, states quite plainly I am required to sign charts of a number of patients who were seen and treated by mid-level practitioners, who I did not see or treat myself. There is no requirement that the chart be reviewed in detail by the physician or that the physician make an independent evaluation of the patient's diagnosis and treatment. Thus, Dr. White's signature does not create a duty to see the patient or direct the medical treatment, all of which has already occurred. More so, page 1 of the Frequently Ask Questions Regarding Nurse Practitioner Practice states that "The Nursing Practice Act (NPA) does not require physician countersignature of nurse practitioner charts."

However, other statutes or regulations, such as those for third party reimbursement, may require the physician countersignature. Additionally, some malpractice insurance carriers require physicians to sign NP charts as a condition of participation. Standardized procedures may also be written to require physicians to countersign charts.

Dr. Black sums up his opinions at 5:11-21, stating that plaintiff's injuries "could have been avoided if appropriate nursing triage had occurred ..." and "if Nurse Brown had accurately completed the history and physical..." These two portions of Black's declaration are utterly irrelevant to Dr. White in this matter. Black then posits a hypothetical that "if Dr. White had read, critically reviewed, and appropriately responded, (as required by the emergency department supervisory procedures) to the submitted patient chart, the patient's care would have met the standard of care ..." Plaintiff was never at any point in time Dr. White's patient, as the triage nurse directed plaintiff to nurse practitioner Paul Brown, and nurse Brown never consulted with Dr. White regarding plaintiffs care. Dr. White in his declaration at 1:25-2:3 describes that patients coming to the emergency room at XYZ Medical Center at that time (and now) are typically screened by a triage nurse, whose role includes determining the acuity (severity) of the patient.

Continue reading " Sacramento Doctor Liable For Nurse's Negligence At Sacramento Hospital, Part 4 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Dr. Black states in his declaration that plaintiffs injuries represented complex, if not major, trauma. Black goes on to state at 3:26-4:4 that complex or major trauma requires immediate involvement of an emergency department physician, for documentation, diagnosis, initial treatment and stabilization, and referral. Only minor trauma may be initially evaluated by a nurse practitioner ... Dr. Black in his declaration has the benefit of 20/20 hindsight in that the true extent of plaintiff's injury is now known. Upon plaintiffs initial presentation to XYZ Hospital, it may have been impossible to instantaneously recognize her injury as complex and/or major trauma. Here, plaintiff was ambulatory and brought herself voluntarily to the hospital, the day after falling at her home, with a complaint of neck pain.

The real crux of Black's declaration begins at 4:5 wherein he chastises the inappropriate triage decision of placing plaintiff in urgent care, accompanied by the incomplete and inaccurate evaluation performed by nurse practitioner Paul Brown. This information is totally irrelevant to the potential liability of Dr. White. A decision by the triage nurse to send a patient to either a nurse practitioner or a physician is utterly out of Dr. White's hands. Despite this lack of responsibility on Dr. White's part, Black attempts to overcome this by citing to XYZ Medical Center's Nurse Practitioner Standardized Procedures.

Continue reading " Nurse Practitioner At Sacramento Hospital Was Negligent, Part 3 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

LEGAL STANDARD

SUMMARY JUDGMENT IS APPROPRIATE BECAUSE PLAINTIFF HAS FAILED TO ESTABLISH THAT A TRIABLE ISSUE OF ONE OR MORE FACTS EXISTS

In a summary judgment motion, the opposing party has the burden of showing the existence of a triable issue of material fact. (Churn v. Bank of America (1976) 15 Cal.3d 866, at 873; Marilla v. Right Stuff Food, Inc. (1998) 65 Cal.App.4th 833, at 841). The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code of Civil Procedure §437(c)(7)(c)). The defendant need only show the plaintiff cannot establish at least one element of the cause of action. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, at 853.) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more facts exists as to that cause of action. (Id.) Information and expert opinion that is utterly irrelevant to the moving party is not sufficient to create an issue of fact.

ARGUMENT

THE OPINIONS EXPRESSED BY DR. BLACK ARE IRRELEVANT TO DR. WHITE

Dr. Black states in his declaration that "a standard trauma evaluation was required, with emergency attending physician evaluation..." Black goes on to further state at 3:18 that "early emergency department attending physician evaluation ... could have prevented the subsequent cervical spine deformity..." While this may or may not be the case, this opinion assumes that when plaintiff presented, the patient was actually seen by Dr. White. As is well documented, and even admitted in plaintiffs opposition brief, Dr. White neither saw, nor cared for, plaintiff at any point in time through no fault of his own.

Continue reading " Sacramento Hospital Sued For Medical Malpractice, Part 2 of 5 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Steve White, M.D.’s (hereinafter "White") Reply to Plaintiff’s Opposition to Summary Judgment Motion by Defendant Steve White, M.D.

INTRODUCTION
The following facts were established in the moving papers in this medical malpractice action, and remain without dispute. Plaintiff Cindy Smith went to the emergency room the day after she fell at her Sacramento home, and she complained of neck pain. The patient was directed to a nurse practitioner (Paul Brown) and was never seen by Dr. White.

Plaintiff's opposition to this motion is misdirected. Plaintiff's essential contention is that she should have been seen by a medical doctor and not a nurse practitioner. But, this was a decision made by the triage nurse. Plaintiff argues that Dr. White is "personally and vicariously liable for nurse Paul Brown's failure ..." But, there is no legal basis for vicarious liability on the part of a physician, who simply happens to be in the emergency department at the same time that a patient is treated by a nurse practitioner and discharged.

Beyond expressing an opinion that the patient had a serious condition that warranted evaluation by a medical doctor, not a nurse practitioner, plaintiffs expert provides nothing to the court of legal significance. He attempts to offer an interpretation of Standardized Procedures under which nurse practitioner Wonder operates but such opinion is argumentative, lacks foundation, and is outside the scope of the expertise of a medical expert.

Continue reading " Sacramento Woman Sues Physician For Malpractice, Part 1 of 5 " »