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 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.)

Approximately one year after his discharge, on or about August 31, 2007, plaintiff filed the instant lawsuit for medical negligence and failure to inform against several defendant, including Dr. Lee. Specifically he claims that Dr. Lee assumed responsibility to locate and repair injuries caused by Dr. Green during the laparoscopic cholecystectomy on June 16, 2006, but failed to do so necessitating cardiac resuscitation and subsequent exploratory laparatomy and bowel repair surgeries.

The expert testimony of Dr. White refutes the suggestions that Dr. Lee's treatment of plaintiff fell below the standard of care or that it caused any alleged injuries. Nevertheless, plaintiff has initiated this lawsuit against Dr. Lee, claiming damages according to proof at trial. In order to prevail on his claim for damages against Dr. Lee, he must demonstrate that the care and treatment rendered to him by Dr. Lee fell shy of the applicable standard of care.

Defendant Dr. Lee brings this motion on the following grounds:

1) The cause of action for medical negligence/failure to provide informed c onsent against this moving defendant lacks merit because the care and treatment rendered to Sean Black by vascular surgeon Dr. Lee was within the standard of care at all times.

Continue reading " Botched Procedures By Sacramento Surgeons Subject Of Lawsuuit, Part 4 of 8 " »

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 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.)

On June 28, 2006, Dr. Stuart placed a central venous catheter and an arterial catheter in Plaintiffs right groin due to hypotension. A bedside exploratory laparatomy was performed in the ICU by Dr. Green, with the assistance of Dr. Smith. During the procedure a major hemoperitoneum with fresh and active clot, as well as generalized oozing, was observed. Plaintiff was actively bleeding so he was transported to the operating room for another exploratory laparatomy by Green, with the assistance of Dr. Smith and Dr. Lee. A posterior laceration of the bifurcation of the abdominal aorta and an anterior wall laceration directly beneath the first wound of the first common iliac vein were four d. Both lacerations were repaired with sutures. The abdomen was again left open after this procedure.

On June 30, 2006, plaintiff underwent another exploratory laparotomy and washout at the hands of Dr. Green. There was no evidence of infectious collections or intra-loo abscesses and all bowel and viscera were completely viable. On July 3,2006, Dr. Green closed plaintiff's abdomen. Thereafter plaintiff's recovery was pretty uneventful until the time of his discharge on July 21,2006.

Continue reading " Family Of Sacramento Man Sue For Medical Malpractice, Part 3 of 8 " »

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 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.)

On or about June 19, 2006, plaintiff experienced respiratory distress and underwent a CT pulmonary angiogram which revealed a large right pulmonary arterial embolus. An IVC filter was placed by radiologist Dr. Rich without complications.

On June 24, 2006, plaintiff experienced a profound drop in blood pressure and bright red blood was noted to be coming from his NG tube. He continued to have trouble breathing and a code blue was called. Advanced cardiac life support was started and plaintiff was transfused with fresh-frozen plasma. Dr. Lee was doing rounds of the ICU unit and noted plaintiff was actively bleeding and in shock with critical blood pressure. Dr. Lee placed resuscitation lines in plaintiff's groin, at his bedside. Specifically, he placed a femur arterial line to allow for monitoring of blood pressure, and a femoral venous line to allow for rapid blood infusion.

Gastroenterologist Dr. Sandrina Ward was called to see plaintiff emergently and conducted an upper endoscopy in an attempt to locate the bleeding source. The endoscopy revealed large amounts of clot within the stomach and duodenum, however, no obvious ulcers or source of bleeding could be found. Plaintiff was then taken to the operating room for an exploratory surgery. The surgery was performed by Dr. Green with the assistance of Dr. Lee. It was discovered that plaintiff had a large hemoperitoneum, the majority of which comprised an old clot in the mid portion of his abdomen and pelvis.

Continue reading " Sacramento Physicians Sued For Medical Malpractice, Part 2 of 8 " »

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 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.)

Defendant James Lee, M.D.’s, Memorandum of Points and Authorities in Support of Michael Lee M.D.'s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

STATEMENT OF FACTS AND SUMMARY OF ARGUMENT

The series of events that culminated in plaintiff Sean Black's filing of a Complaint for Medical Negligence and Failure To Provide Informed Consent, began on June 16, 2006. On that day plaintiff presented to Universal Surgery Center for a laparoscopic cholecystectomy. After insertion of the bladed trocar by surgeon and co-defendant Dr. Green, a pooling of blood was noted in plaintiff's pelvic area. The blood was aspirated and its origin was found to be a tear in the mesentery, possibly caused by insertion of the bladed troca. There appeared to be no active bleeding following aspiration.

Vascular surgeon and co-defendant Dr. Smith was summoned for a vascular consultation. Dr. Smith appeared with his partner in vascular surgery and the moving party herein, Dr. Lee, but found there was no additional bleeding. Thereafter, Dr. Green continued with the procedure and removed the gallbladder without complication. Following its removal, Dr. Smith identified aid repaired a laceration in the left iliac vein. Dr. Green then ran the bowel and noted a very small injury to the mesentery which he repaired.

Continue reading " Sacramento Man Sues Surgeon for Malpractice, Part 1 of 8 " »

(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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

THE DECLARATION OF RANDALL BROWN, M.D., CLEARLY ESTABLISHES THAT DEFENDANTS WERE NEGLIGENT AND THAT DEFENDANTS' NEGLIGENCE PROXIMATELY CAUSED INJURY TO PLAINTIFF

Even though plaintiff should have no obligation to present any evidence since defendants have failed to carry their initial burden of proof, nevertheless plaintiff submits the declaration of Randall Brown, M.D. Dr. Brown has several specific criticisms of Dr. Lee's level of care and treatment, and he ties these criticisms specifically to the medical history.

First, Dr. Brown has declared that the augmentation surgery was scheduled too soon after Ms. White had given birth, and that this was below the standard of care. The surgery was scheduled only six months after Ms. White had stopped breast feeding her baby.

Second, Dr. Lee advised Ms. White to daily massage her breasts following the augmentation surgery; this was below the standard of care as massaging stimulated milk production.

Continue reading " Malpractice By Sacramento Physicians Leads To Complications Of Breast Augmentation, Part 6 of 6 " »

(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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.
Four of the twenty-one paragraphs in the declaration set forth Dr. Black's background and the records he reviewed. The next thirteen paragraphs dryly recite passages from the medical records which show that some truly awful things occurred to plaintiff immediately following the breast augmentation surgery:

* Her right breast started lactating;
* As of June 14, 2005 (nine weeks following the surgery) plaintiff had been suffering breast pain and lactation for seven weeks;
* Plaintiff had an adverse reaction to a medication intended to dry up the milk production and ended up in the emergency room;
* The implants had to be removed on June 27, 2005, and during that procedure Dr. Lee found 500 cc of milk in the right breast and 350 cc in the left;
* The breast fluid was found to contain staphylococcus;
* In early July, Dr. Lee removed the drains because they were no longer draining, yet on July 11 plaintiff was found to still have milk drainage;
* Plaintiff consulted with another physician on July 15, who found possible infection which he aspirated, with immediate relief;
* Plaintiff nevertheless was seen in the emergency room soon after, running a fever of 104, and milk continued to drain;
* Another surgery was required on July 18, during which more milk was found in each breast, and scar tissue was found;

Continue reading " Breast Impants Fail So Sacramento Woman Sues For Malpractice, Part 5 of 6 " »

(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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

The Opinion(s) Rendered in Dr. Black's Declaration Are Not Supported by a Reasoned Explanation and Must Be Rejected

The court stated in Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524, that ... an opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment. In Kelley, the defendant moving for summary judgment submitted Dr. Herndon's declaration, which stated (in pertinent part) as follows:

* Plaintiff suffered a laceration to his left forearm and was treated at UCLA Medical Center on November 25, 1994. Plaintiff testified that his friend Ward contacted Trunk later that day because he had not been given a prescription for the analgesic medication that had been provided while in the UCLA Emergency Department. Trunk, who was covering [calls] for Dr. Berkowitz, provided a prescription for Tylenol with codeine (the same medication the patient had previously been given by Dr. Char at UCLA) and advised that [plaintiff] should be sure to follow up with his primary care physician, Dr. Berkowitz, as instructed by Dr. Char prior to leaving the Emergency Room. Plaintiff placed a call to Trunk later that same day and, upon reporting his status, was again advised of the need to follow up with Dr. Berkowitz. Plaintiff had no further contact with Dr. Trunk.

Continue reading " Sacramento Plastic Surgeon Sued For Malpractice, Part 4 of 6 " »

(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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

DEFENDANTS HAVE FAILED TO CARRY THEIR BURDEN OF PROOF

Defendants Have the Initial Burden of Proving That They Were Not Negligent and That There Is No Causation

The initial burden of proof placed on a defendant seeking summary judgment was described in Bushling v. Fremont Medical Center (2004) 117 CA4 493, 506-507:

Where ... a defendant moves for summary judgment and the plaintiff bears the burden of proof by a preponderance of the evidence at trial on the issues that are the subject of the motion, the defendant initially "must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not ... " (Aquilar, supra, 25 Cal.4th at p. 8951.)

More specifically, a moving defendant must make a prima facie showing that the plaintiff does not possess, and cannot reasonably obtain, sufficient evidence to establish at least one element of plaintiff's cause of action. (Id. at p. 854.) If a defendant has met that burden, the plaintiff must then present evidence that would allow a reasonable trier of fact to find in his favor more likely than not. (See id. at p. 852.) If the court determines that the evidence presented by the plaintiff and all of the reasonable inferences drawn therefrom show one or more of the elements of the cause of action only as likely as, or less likely than, an absence of one or more of those elements, it must grant a defendant's motion for summary judgment. (See id. at p. 857.)

Continue reading " Medical Malpractice Suit Filed Against Sacramento Doctors, Part 3 of 6 " »

(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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

DEFENDANTS HAVE THE BURDEN OF PROVING THAT THEY HAVE A COMPLETE DEFENSE OR THAT ONE OR MORE ELEMENTS OF PLAINTIFF'S CAUSE OF ACTION FOR MALPRACTICE CANNOT BE ESTABLISHED

As the Court is aware, a defendant moving for summary judgment must show either that there is a complete defense to the cause of action, or that one or more elements of the cause of action (for medical negligence) cannot be established. Code of Civil Procedure section 437c(o)(2). A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of plaintiff's allegations as a matter of law. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.

A defendant moving for summary judgment must show it is entitled to judgment with respect to all theories of liability asserted by the plaintiff. Lopez v. Superior Court (Friedman Bros. Inv. Co.) (1996) 45 Cal.App.4th 705, 717.

The moving party has the burden of establishing evidentiary facts sufficient to entitle that party to a judgment as a matter of law. Code of Civil Procedure section 437c(c); Vesely v. Sager (1971) 5 Cal.3rd 153, 169. The moving party's evidence is strictly construed in determining whether an essential element of the claim has been negated.

Continue reading " Sacramento Surgeons Botch Woman's Breast Augmentation, Part 2 of 6 " »

(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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiff, Annette White, through her attorney of record, presents her memorandum of points and authorities and declaration of Randall Brown, M.D., in opposition to the motion for summary judgment filed by defendants John Lee, M.D., and John Lee, M.D., INC.

Plaintiff respectfully submits that the motion must be denied. Defendants have not carried their initial burden and have failed to present sufficient evidence to show there is no triable issue of material fact as the declaration of Donald Black, M.D., filed in support of the motion is hopelessly vague and provides no basis for, or explanation of, the opinions expressed.

Plaintiff requests that the motion be denied.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This is a medical negligence action wherein plaintiff alleges that defendants were negligent in the performance of breast augmentation surgery and in the provision of follow-up care. As a result, it is alleged that plaintiff sustained serious personal injury. A breach of contract cause of action is also stated, based on the allegation that defendants breached their promise to provide their services in a safe and competent manner.

Continue reading " Sacramento Woman Sues Surgeon for Malpractice, Part 1 of 6 " »

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 personal injury cases 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.)

PROPOSED SPECIAL INSTRUCTION

In lieu of CACI 430, Defendants request the following instruction regarding causation be given to the jury:

Causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. Jones v. Ortho Pharmaceutical Corp (1985) 163 Cal.App.3d 396, 402-403.

This instruction not only accurately reflect the necessity of competent expert testimony in proving causation as required by Bromme, Id., Landeros, Id., Jambazian, Id., and Jones, Id., it also reflects the requirement that causation must be proven within a reasonable medical probability which is an accurate reflection of the current law governing the elements of causation in a medical negligence action.

CONCLUSION

Based upon the foregoing, Defendants respectfully request that the jury be instructed with the following special jury instruction concerning causation in lieu of CACI 430:

Continue reading " Medical Experts Battle In Sacramento Malpractice Lawsuit, Part 6 of 6 " »

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 personal injury cases 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.)

CACI 430 IS AN INCOMPLETE STATEMENT OF THE LAW REGARDING THE STANDARD OF PROOF FOR CAUSATION IN A MEDICAL NEGLIGENCE ACTION

CACI 430 defines causation as more than a remote or trivial fact. This, however, is not the correct definition of causation in a medical malpractice action. Pursuant to case law, causation in a medical malpractice action, must be shown to a reasonable medical probability. Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208. Further, the evidence must be sufficient to allow a jury to infer that in the absence of the defendant's negligence there was a reasonable medical probability that the plaintiff would have obtained a better result. Id. at 216.

Accordingly, based upon the above argument regarding causation, CACI 430, which defines substantial factor only as a factor that a reasonable person would consider to have contributed to the harm or more than a remote or trivial fact fails to address the necessary reasonable medical probability, and as such, is inherently misleading, incomplete, and a misstatement of the applicable law on causation for this matter.

Continue reading " Physicians Challenge Malpractice Suit By Sacramento Woman, Part 5 of 6 " »