Sacramento Medical Malpractice Lawyer Blog

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

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

Another way of putting the defense's self consumption reduction would be to state the defense was asking a jury to speculate about an injured plaintiff's prospective personal living expenses during the lost years period. (Id.) This the Court of Appeals refused to do. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

And the Court of Appeal had a second reason to reject the "self consumption" reduction: Second, and equally troubling, [Defendant] does not identify any case which applies a personal consumption or living expense deduction in this context. (Id. at p. 176.) In other words, the defense has no case authority. The defense argued such a deduction is made in wrongful death cases. But again, the Court of Appeal rejected the argument. The Court acknowledged that in wrongful death actions, an acceptable way to show how much money would have been available for the support of a decedent's wife and children is to show how much money would have been earned during the remainder of his life, and to deduct from that amount his personal maintenance expense and the amount he would have spent on other things. (Id. at p. 176.)

However - - By contrast, in a personal injury action where lost years damages are recoverable, the measure of damages is not lost support but rather lost earnings during the period the plaintiff would have lived if not for the injury. (Fein. supra, 38 Cal.3d at p. 153. Speculating as to how the injured party may have spend those future earnings if not for defendant's tortuous conduct is a very different exercise than permitting a wrongful death plaintiff to prove damages for lost support by accounting for his or her supporter's other expenses. (Overly, supra, 74 Cal.App.4th at p. 176.)

Continue reading "Permanent Injuries Suffered During Child's Birth Lead To Sacramento Malpractice Suit, Part 7 of 8" »

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

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

THE SUPREME COURT REFUSED TO APPLY PERIODIC PAYMENTS BASED ON THE CONCEPT OF "LOST YEARS"

The Fein Court found that the periodic payments of Code of Civil Procedure section 667.7 applied to medical negligence actions and found the application of periodic payments to be mandatory. However, the Supreme Court refused to apply periodic payments to lost years. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Although in general lost earnings are a type of future damage particularly suitable to a periodic payment judgment, this case presents a somewhat unusual situation because the damages awarded are solely attributable to the earnings of plaintiff's lost years. If the trial court had ordered such damages paid periodically over the time period when the loss was expected to be incurred, the damages would have been paid in their entirety after plaintiff's expected death, and thus-if the life expectancy predictions were accurate-plaintiff would not have received any of this element of damages. (Fein v. Permanente Medical Group, supra, 38 Cal.3d at 156.)

Therefore, it is clear from the language of Fein that the purpose of "lost years" damages is make sure that the plaintiff receives all of their lost future earnings in a lump sum during their lifetime. (Accord Schiembeck v. Haight (1992) 869 Cal.App.4th 869, 778.)

Continue reading "Birth-Injured Sacramento Child Sues For Permanent Injuries Caused By Malpractice, Part 4 of 8" »

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

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

THE MINOR PLAINTIFF IS ENTITLED TO A "LOST YEARS" JURY INSTRUCTION

The California Supreme Court specifically allows for a lost years instruction:

Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury. ... Although, to our knowledge, the lost years issue has not been previously decided in California, recovery of such damages is consistent with the general rule permitting an award based on the loss of future earnings a plaintiff is likely to suffer because of inability to work for as long a period of time in the future as he could have done had not sustained the accident. (Emphasis in original and added.) (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153.)

Consequently, the minor plaintiff will be asking the court to issue an instruction on lost years damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

And in August 1999, the First District discussed the latest defense attack on the lost years damage award in Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 175. In Overly, Plaintiff sued for personal injury for exposure to asbestos - and Plaintiff claimed the loss of future economic benefits that [Plaintiff] would have earned during the period by which his life expectancy was shortened, i.e., 'lost years' damages, in the form of pension, social security and household services' benefits. (Id. at p. 171.)

Continue reading "Birth Injuries Caused By Sacramento Physicians' Malpractice, Part 3 of 8" »

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

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

The later case of Hurlbut has affirmed that lost years are not subject to periodic payments. Later authority has affirmed that the lost years award is an exception to the rule of periodic payments under Civil Procedure section 667.7 (Hurlbut v. Sonora Community Hospital (1989) 207 Cal. App.3d 388.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

California has now rejected the defense argument of saved costs of necessities. The "lost years" should not be reduced by the "saved cost of necessities." Defense counsel may argue that the "lost years" award should be reduced by the amount saved because of a reduced life expectancy. The First District has now held the majority view is that no deduction is made for the injured part's expected living expenses during the lost years. (Overly, supra, 74 Cal.App.4th at p. 175.) No court has endorsed the approach that would deny lost years damages because it is the widespread practice to award the plaintiff full compensation for his lost years damages (Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages (1962) 50 Cal.L.Rev. 598). (See Part 3 of 8.)

Continue reading "Sacramento Boy Suffers Permanent Injuries Due To Doctors' Malpractice, Part 2 of 8" »

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

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

PLAINTIFFS' TRIAL BRIEF ON "LOST YEARS" AND "SAVED COST OF NECESSITIES"

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

The medical malpractice case at issue involves severe and permanent neurological injuries suffered by minor Owen Smith, at or around the time of his birth on February 21, 2000.

There will be expert testimony that the minor will never be employed. Because the minor will not be able to work, she is entitled to damages described as lost years - i.e. the time by which a plaintiff's work life expectancy is shortened because of the injury. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The minor is entitled to a "lost years" jury instruction. The Supreme Court specifically addressed the issue of "lost years”; where a plaintiff's work life expectancy is shortened, this loss is compensable (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137). And in August 1999, the First District reaffirmed the "lost years" damage award: Fein expressly recognized a right to recover damages for the loss of prospective earnings during the period of time by which the plaintiff's life expectancy has been diminished. (Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 172.)

Continue reading "Sacramento Family Files Suit For Medical Malpractice, Part 1 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.)

Expert Review of the Instant Case Establishes that the Conduct of Dr. Lee Did Not Cause Plaintiff's Alleged Injuries.

In a personal injury action, causation must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. Jones v. Ortho Pharmaceutical Company (1985) 163 Cal.App.3d 396, 402 02 (citations omitted); Dumas v. Conney (1991) 235 Cal.App.3d 1593, 1603. Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. Budd v. Nixon (1971) 6 Cal.3d 195,200. In Dumas, the court declined to establish a more lenient standard of causation in medical malpractice cases to account for the theory of lost chance:

Relaxing the causation requirement might correct a perceived unfairness to some plaintiff who could prove the possibility of the medical malpractice cause and injury but could not prove the probability of causation, but at the same time could create injustice. Health care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result.

Continue reading "Sacramento Man Left Disabled Due To Surgical Malpractice, Part 8 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.)

Additionally, it is well settled that:

California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. Munro v. Regents of the University of California, supra, 215 Cal.App.3d at pp. 984-985 (quoting Hutchinson v. United States (1988) 838 F.2nd 390.) [Emphasis added.]

Expert Review of the Instant Case Establishes that the Conduct of Dr. Lee Was Within the Community Standard of Care.

The instant case is a medical malpractice action involving allegations which are beyond a layman's knowledge. Thus, under Landeros and Munro, whether or not the care ar d treatment rendered by Dr. Lee was within the standard of care is a matter exclusively with: In the province of expert testimony. Therefore, Dr. Lee supports his motion with an expert declaration from Robert White, M.D. establishing that the care and treatment rendered by him was within t he standard of care for a vascular surgeon.

Continue reading "Sacramento Man Suffers Multiple Injuries Due To Medical Malpractice, Part 7 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.)

UNCONTRADICTED EXPERT TESTIMONY ESTABLISHES THAT THE CARE AND TREATMENT RENDERED BY DR. LEE WAS WITHIN THE STANDARD OF CARE AND DID NOT CAUSE PLAINTIFF'S ALLEGED INJURIES

The Accepted Standard of Care in Medical Malpractice Actions Must Be Established By Qualified Experts.

In a medical malpractice action based on professional negligence, a plaint must establish the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; a breach of that duty; a proximate causal connection between the negligent conduct and the resulting injury; and actual loss or damage resulting from the professional's negligence. Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230. When the defendant is accused of failing to adhere to accepted standards of practice, such standards may be established only by qualified expert testimony. Stephenson v. Kaiser Foundation Hospital (1961) 203 Cal.App.2d 631, 635.

Specifically, the inherent nature of a medical malpractice action, along with the applicable standards of care, involve subject matter that is beyond the competency of laymen to address and therefore, must be addressed by a qualified expert. Landeros v. Flood (1976) 17 Cal.3d 399, 410.

Continue reading "Physicians and Surgeons From Sacramento Hopsital Must Defend Malpractice Action, Part 6 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.)

SUMMARY JUDGMENT IS APPROPRIATE WHEN THERE IS NO TRIABLE ISSUE AS TO ANY MATERIAL FACT

California Code of Civil Procedure Section 437(c)(f) provides authority for the grant of summary judgment if a party contends the cause of action (for medical malpractice) has no merit.

The entry of summary judgment is mandatory where the documents disclose no triable issue of material fact. Kraslev v. Superior Court (1980) 101 Cal.App.3d 425, 432. A defendant is entitled to summary judgment where the record establishes, as a matter of law that a cause of action asserted against him cannot prevail. County of Los Angeles v. Security Insurance Comparny of Hartford (1975) 52 Cal.App.3d 808, 816.

A defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established. (Code Civ. Proc. §437c(o)(2)) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exist is to that cause of action. Munro v. Regents of University of California (1989) 215 Cal.App.3d 977. In Fraser Dame, etc. v. Bacarro Blum, etc. (1977) 70 Cal.App.3d 331, 338, the court stated:

Continue reading "Sacramento Hospital Sued For Medical Malpractice, Part 5 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.)

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" »

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.)

The Simmons court eloquently stated its rationale behind its holding: Under the facts of this case, we declined to establish a more lenient standard of causation. To do so, would be contrary to sound logic, legal precedent and public policy. It would unwisely encourage costly and unreasonable over-testing and over-treatment for defensive purposes. Physicians would find it necessary to place the requirements of the legal system before the need and the finances of the patient. In addition, the physicians' increased exposure to liability would adversely impact already high medical malpractice premiums, resulting in an upward spiral of consumer costs. The uncertainty fostered by such a ruling would undoubtedly open the proverbial flood gates of our overburdened judicial system. Id. at 705-706.

Likewise, in Jennings v. Palomar (2003) 114 Cal.App.4th 1108, the Court held that proof that a negligent act was a substantial factor in causing the injury to plaintiff did not relieve plaintiff from the burden of proving defendant's negligence was the cause-in-fact of plaintiff's injury. Therefore, although Plaintiff need not eliminate any possibility that Defendants' conduct was not a cause of Plaintiff's injury, she must introduce evidence from which reasonable people may conclude that it is more probable than not that the her alleged injury of Complex Regional Pain Syndrome was caused by the Defendants.

Continue reading "Sacramento Woman's Hand Surgery Negligently Performed, Part 4 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.)

The court very effectively discusses the proximate causation requirement which Plaintiffs must meet: We find persuasive on this issue the following discretion and standard from Cooper v. Sisters of Charity of Cincinnati, as set forth in the brief of respondents:

Traditional proximate cause standards require that the trier of facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act in the absence of any intervening cause. Lesser standards of proof are understandably attractive in malpractice cases where physical well-being and life itself are subject to litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that an action for wrongful death, an injured person would be compensated for the loss of any chance of survival regardless of the remoteness.

However, we have trepidations that such a rule would be so loose, that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based on proof of causation by evidence not meeting the standard for probability, we are not persuaded by their logic ... we consider the better rule to be that in order to comport with the standard of proof and proximate cause, plaintiff in a malpractice case must prove that defendant's negligence, and probability, proximately caused the damages.

Continue reading "Physicians From Sacramento Hospital Mishandle Surgery, Part 3 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 vehicle accident/medical malpractice case and its proceedings.)

CAUSATION MUST BE PROVEN WITHIN A REASONABLE MEDICAL PROBABILITY

As the court is aware, in personal injury cases, the plaintiff must prove that the defendant's culpable conduct was the proximate cause of the Plaintiff's injuries. "Proximate" or "legal" cause adds to the requirement that the defendant's culpable conduct be the actual cause of the plaintiff's injury. Accordingly, the Plaintiff should be precluded from recovery when the causal relationship between the defendant's conduct and the plaintiff's injury does not justify imposing tort responsibility on the defendant.

To that end, the law in this state is well settled that in a personal injury action, causation must be proven within a reasonable medical probability based upon competent expert testimony. Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396,402. Mere possibility alone is insufficient to establish a prima facie case. Id. at 403. To that end, there can be an infinite number of causes and circumstances which can produce injury or disease, however, a possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of Defendants' action. Bromme v. Pavitt (1992) 5 Cal.App.4th 1487.

Continue reading "Sacramento Doctors Sued For Malpractice After Surgery, Part 2 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.)

Defendants, The Surgery Center, PC., and Ellen Brown, O.T.R., submit the following trial brief on causation in support of Defendants' proposed special jury instructions.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This is a medical negligence action in which Plaintiff alleges negligent treatment by Defendants during hand therapy following repair of a distal radius fracture of the left wrist resulting in Plaintiff's Complex Regional Pain Syndrome.

As the Court is aware, in medical malpractice cases, the plaintiff must establish each of the following basic elements:
(1) the duty of the professional to use such skill, prudence, and diligence as any other member of her/its profession commonly possess and exercises;
(2) a breach of that duty;

Continue reading "Sacramento Woman Sues For Medical Malpractice After Negligent Hand Surgery, 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/brain 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.

In Burciaga, the Court first determined that an emergency situation, as envisioned by § 2395, existed, as the newborn was in respiratory distress and in need of emergent care. Burciaga, supra, at 714. Next, the Court stated that, unlike other Good Samaritan statutes, California's Good Samaritan Law applies to emergencies both within and without a hospital. Burciaga, supra, at 715-716. Further, §§ 2395 and 2396 are not limit[ed] to only those physicians treating patients outside the scope of the physicians' specialties. Burciaga, supra, at 716. The heart of the application of the Good Samaritan statutes is the inquiry whether a duty of professional care pre-existed the emergency. Burciaga, supra, at 716. The Court concluded that defendant pediatrician owed no duty to the plaintiff newborn as he was not the pediatrician's patient, and his obstetrician did not regularly refer patients to defendant pediatrician.

In the instant case, Dr. White was called by plaintiff Amy Brown's obstetrician to emergently treat her following delivery. At that time, Amy Brown was blue and not breathing, and in obvious respiratory distress. As such, an emergency existed. Further, plaintiff Amy Brown was not Dr. White's patient, nor had he ever treated her before. Dr. White was only available to treat plaintiff Amy Brown because he was present at XYZ Hospital treating his own patients. Thus, Dr. White's treatment of plaintiff Amy Brown falls squarely within the bounds of the Good Samaritan Defense. As such, Dr. White cannot be liable for plaintiffs' damages.

Accordingly, defendant Stuart White, M.D., is entitled to summary judgment.

Continue reading "Brain Injury Of Sacramento Child Due To Medical Negligence, Part 9 of 9" »

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 birth injury/medical malpractice 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.

Similarly, California Business & Professions Code § 2396 provides:
No licensee, who in good faith upon the request of another person so licensed, renders emergency medical care to a person for medical complication arising from prior care by another person so licensed, shall be liable for any civil damages as a result of any acts or omissions by such licensed person in rendering such emergency medical care.

In Perkins v. Howard, 232 Cal.App.3d 708 (1991), the Court stated that the plain intent of the Good Samaritan Law is to encourage physicians to respond to requests for aid in medical emergencies, and thereby provide medical care to those who might not otherwise receive it. In Bryant v. Bakshandeh, 226 Cal.App.3d1241 (1991), the Court defined emergency as the existence of an exigency of so pressing a character that some kind of action must be taken.

In McKenna v. Cedars of Lebanon Hospital, 93 Cal.App.3d 282 (1979), the decedent's family filed an action against defendant doctor, who had provided emergency medical care to the decedent. The decedent was not a patient of defendant doctor, nor was defendant doctor otherwise involved with the decedent's medical care. The Court held that California's Good Samaritan Law (then § 2144, now §§ 2395 and 2396) applied to medical emergencies in hospitals the same way it did to medical emergencies elsewhere. In so holding, the Court stated that a licensed physician, who in good faith rendered emergency medical care at the scene of an emergency, was not liable for any civil damages that resulted from any acts or omissions in rendering such care. McKenna, supra, at 288.

Continue reading "Child Suffers Birth Injuries At Sacramento Hospital, Part 8 of 9" »

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/brain 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.

In the instant action, plaintiff alleges that defendant Dr. White committed professional negligence in and around May 25, 1999, at co-defendant XYZ Hospital, by failing to timely diagnose and treat plaintiff Amy Brown respiratory difficulties, causing her to suffer further hypoxic brain injury. However, plaintiffs cannot produce any competent medical testimony to substantiate that allegation.

As stated in his declaration, Dr. White timely determined that Amy Brown's endotracheal tube was obstructed, and re-intubated her appropriately. Further, Dr. White's determination that Amy Brown's ventilator was potentially malfunctioning, and subsequent replacement of said ventilator, was performed in a timely manner and appropriately. As set forth in Dr. White's declaration, his care and treatment of plaintiff Amy Brown in no way, caused or contributed to plaintiffs' injuries. Accordingly, if plaintiffs cannot provide expert support to substantiate their allegation that defendant actually caused their alleged injuries and damages, their action must fail.

Continue reading "Family From Sacramento Sues Hospital for Birth Injuries, Part 7 of 9" »

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 brain injury/medical malpractice 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 MUST PRESENT AFFIDAVITS OR DECLARATIONS OF COMPETENT EXPERTS TO AVOID THE GRANTING OF THIS MOTION

In a medical malpractice action, the plaintiff must present expert testimony to establish the necessary elements of his or her case; that is, that the defendant's act or omission fell below the applicable standard of practice, and that this substandard care caused the plaintiff injury. Folk v. Kilt (1975) 53 Cal.App.3d at 176 [126 Cal.Rptr. 172]. Accordingly, plaintiff must come forward with admissible evidence, by a competent qualified physician, that the care and treatment rendered by the moving defendant fell below the applicable standard of care and actually caused plaintiff's injuries and damages. (Folk, supra, at page 176.) Absent such evidence, there is no triable issue as to any material fact.

THE CARE RENDERED BY DEFENDANT IN NO WAY CAUSED OR CONTRIBUTED TO THE INJURIES COMPLAINED OF BY PLAINTIFF

In addition to proving that the defendant fell below the standard of care, to prevail on any medical negligence claimed, the plaintiff must demonstrate that the defendant's malpractice caused injury to the plaintiff. Bolen v. Woo (1979) 96 Cal.App.3d 944, 953.

Continue reading "Doctors Sued For Malpractice After Birth Injuries, Part 6 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/birth 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.

EXPERT TESTIMONY IS ESSENTIAL TO DETERMINE LIABILITY IN A MEDICAL MALPRACTICE ACTION
In a medical malpractice action, the requisite standard of care is determined by the applicable standard of care then existing in the particular professional community. Barton v. Owen (1977) 71 Cal.App.3d 484, 139 Cal.Rptr. 494. In Linderos v. Flood (1976) 170 Cal.3d 399, 551 P.2d 389, 131 Cal.Rptr. 69, the Supreme Court determined that the standard of care against which the acts of physicians are measured is a matter within the knowledge of experts and can only be proven by their testimony. The rationale for requiring expert testimony in medical malpractice actions was succinctly stated by the court in Barton:

In most instances there is a need for expert testimony on the subject of just what constitutes medical negligence, because the average judge or juror does not possess the necessary level of knowledge about medical malpractice to decide on its own whether the doctor was negligent. Barton at 494, 139 Cal.Rptr. at 499.

The role of expert testimony in a medical malpractice action was explained in Willard v. Hagenmeister (1981) 121 Cal.App.3d 406, 175 Cal.Rptr. 365. In Willard, the court was called upon to review the granting of a summary judgment motion in favor of the defendant dentist, where defendants secured declarations of experts to support his motion for summary judgment. In describing the weight to be given such expert testimony, the court stated:

Continue reading "Child From Sacramento Suffers Brain Injury During Birth, Part 5 of 9" »

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 brain injury/medical malpractice case and its proceedings.)

It is worth noting that medical malpractice 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.

SUMMARY JUDGMENT MUST BE GRANTED AS A MATTER OF LAW WHEN NO TRIABLE ISSUE AS TO ANY MATERIAL FACTS EXIST

It is well-established that a motion for summary judgment shall be granted when the moving party demonstrates that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code of Civil Procedure Section 437c(c). In making this determination, the court may rely on affidavits, declarations ... and matters of which judicial notice shall or may be taken. Code of Civil Procedure Section 437c(b).

The summary judgment statute was revised as of January 1, 1993, and now specifies that a party bringing a motion for summary judgment need only establish a defense or only negate a necessary element of the challenged cause of action to justify entry of summary judgment. Code of Civil Procedure Section 437c(n); cf. Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1050. Under this new standard, once the moving party has met its burden of negating one necessary element of a claim, the opposing party must then show that a triable issue of material fact exists as to the questioned cause of action, or summary judgment shall be granted. Code of Civil Procedure Section 437c(n)(2).

Continue reading "Medical Malpractice By Sacramento Physicians Causes Brain Injury, Part 4 of 9" »

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 birth injury/medical malpractice 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.

STATEMENT OF FACTS

On May 25, 1999, plaintiff Tina Brown presented to co-defendant XYZ Hospital for the anticipated delivery of her child. Prior to and during, her delivery, Tina Brown was treated and cared for by co-defendant James Lee, M.D. Tina Brown was not Dr. White's patient, nor had he ever treated her before.

Approximately twenty minutes after the Cesarean-section delivery of minor plaintiff Amy Brown, Dr. White, a neonatologist, was called and told to emergently examine Amy Brown. Amy Brown was not Dr. White's patient, nor had he ever treated her before. When Dr. White first examined Amy Brown, she was cyanotic, and her chest was not rising well during respiration. At that time, Dr. White determined that her endotracheal tube might be obstructed. As such, Dr. White re-intubated Amy Brown with a new and larger endotracheal tube.

Subsequently, upon determining that Amy Brown's condition was not improving adequately, Dr. White determined by a matter of elimination that in all probability her ventilator was malfunctioning. Consequently, Dr. White replaced the ventilator with another ventilator.

Continue reading "Doctors From Sacramento Commit Malpractice, Part 3 of 9" »

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 wrongful death/medical malpractice 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.

INTRODUCTION

This medical malpractice action against Defendant Stuart White, M.D. arises out of his care and treatment of minor plaintiff Amy Brown in and around May 25, 1999, at co-defendant XYZ Hospital. On August 16, 2000, plaintiffs filed their Complaint, and on December 21, 2000, they filed their First Amended Complaint. On November 14, 2002, plaintiff's First Amended Complaint was amended adding Dr. White as a Doe defendant. On December 5, 2002, Dr. White was served with a Summons on the Amended First Amended Complaint.

On May 25, 1999, Dr. White was called to XYZ Hospital for emergency neonatal care of plaintiff Amy Brown. Neither plaintiff Amy Brown, nor her mother, plaintiff Tina Brown, were the patient of Dr. White, nor had he ever treated either of them before. Further, Dr. White only treated plaintiff Amy Brown at XYZ Hospital on May 25, 1999. In their Complaint, plaintiffs essentially allege that Dr. White failed to timely diagnose and treat plaintiff Amy Brown’s respiratory difficulties, causing her to suffer further hypoxic brain injury.

Continue reading "Sacramento Hospital Causes Child's Brain Injury, Part 2 of 9" »

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 birth injury/medical malpractice 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.

This Motion For Summary Judgment will be made upon the grounds that there are no triable issues of material fact in this action in that the medical care and treatment rendered by defendant Stuart White, M.D. to minor plaintiff Amy Brown complied, at all times, with the applicable standard of care. Moreover, the care and treatment provided by defendant in no way caused or contributed to plaintiffs' alleged injuries and damages.

In addition, defendant provided emergent treatment to plaintiff Amy Brown, at the scene of the emergency at the defendant hospital. As such, defendant cannot be liable for plaintiffs' damages pursuant to California's Good Samaritan Law, California Business & Professions Code § 2395 and § 2396.

Continue reading "Sacramento Family Sues For Child's Birth Injuries, Part 1 of 9" »

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

B. THE JUDGE HAS REPEATEDLY ABDICATED HIS RESPONSIBILITIES AS JUDGE AND DELEGATED SOLE ARBITRARY AUTHORITY TO THE DEFENSE TO SCHEDULE THE DATES OF ALL OF PLAINTIFF'S DEPOSITIONS OF DEFENSE EXPERTS

Plaintiff hereby incorporates by reference thereto the Declaration of John J. Green in support of this objection.

On at least two occasions Plaintiff applied to the Court to required the Defendant to present himself and his medical malpractice experts for depositions in a more timely manner, instead of setting the depositions for weeks and months after the date set forth in Plaintiff's notice. On each occasion Judge Smith absolutely refused to hear much less requested an explanation from defense counsel (Betty Howe) as to why the depositions had been scheduled so for out, but simply told her to get the best dates available and confirm them with Plaintiff's counsel by 5 pm today . On each occasion defense counsel contacted Plaintiff's counsel with the same dates that she had previously offered and Plaintiff's counsel was thereby forced to accede to dates that pushed his discovery up to July 13 with a July 27 trial call.

Likewise at the July 5, 2005 hearing the Judge improperly violated Plaintiff's constitutional rights to due process by first taking up defense counsel's request that Plaintiff's noticed depositions of treating experts be limited in time and that the location be changed. No prior notice had been given that any such request would be made, only a frivolous request to quash the depositions. The Judge ignored Plaintiff's objection on due process grounds and without giving Plaintiff's counsel an opportunity to object quickly agreed with an attorney for Dr. Brown that the latter's deposition be taken at the latter's office and limited to two hours.

Continue reading "Parents File Lawsuit Against Sacramento Doctors For Birth Injuries, Part 5 of 5" »

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

Evidence set forth in the declaration of John J. Green filed with this objection establishes that the Judge repeatedly and knowingly:

a. violated Plaintiffs' rights due process;

b. violated controlling statute and case authority in an effort to frustrate and delay Plaintiff's trial preparation.

A. INTENTIONALLY & REPEATEDLY VIOLATED CONTROLLING LAW IN ORDER TO FAVOR THE DEFENSE AND FRUSTRATE PLAINTIFF'S TRIAL PREPARATION

On July 5, 2005, the parties appeared before Judge Smith on Defendant White's ex parte application to quash Plaintiff's duly noticed deposition of treating medical malpractice experts, Drs. Mary Bean and Dr. Stanley Brown. Both of these experts were identified in the parties CCP §2034 exchange. CCP §2025(d) gave Plaintiff the right to depose these experts up to the 15th day prior to trial.

The Judge acknowledged the law and Plaintiff's right to depose the experts, however, he then entertained a request by non-party expert, Stanley Brown's attorney, to have the deposition at Dr. Brown's office instead of at the court reporter's office in downtown Sacramento where it was duly noticed. Plaintiff explained that in light of the fact that Dr. Brown's deposition was going to be tape recorded and Dr. Jones's deposition was scheduled before Brown's and would conclude minutes before Brown's was to begin that it would be logistically impossible to take Brown's deposition at Brown's office to begin at 11:30 am as noticed.

Continue reading "Sacramento Physicians Sued For Medical Malpractice, Part 4 of 5" »

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

There cannot be a clearer display of bias than Judge Smith's refusal to grant any relief to Plaintiff from Defendant's wrongful tampering with Plaintiff's medical malpractice expert.

In addition, he has violated Plaintiff's constitutional rights to due process by issuing orders of subjects that were not properly before him by way of noticed motion. For example, at the 7-05-05 ex parte hearing even though no party had given prior notice of any intent to request that Plaintiff's noticed depositions of treating experts Brown and Jones's depositions be limited in time and at a different location, the Judge entered such an order and in doing so knowingly and deliberately deprived Plaintiff of the deposition of Dr. Brown by ordering that his deposition take place at Dr. Brown's office at Children's hospital located some 10 miles for the noticed location and which made it logistically impossible for Plaintiff's counsel to comply with the Judge's order.

During the 7/8/05 hearing the Judge again repeatedly interrupted and precluded Plaintiff's counsel from making a record that could be read by the court of appeal, but instead made his own record favorable to defense counsel. Further, the Judge's comments would support an inference that he had not even read Plaintiff's moving paper nor Plaintiff's reply papers.

Continue reading "Family From Sacramento Sues For Birth Injuries, Part 3 of 5" »

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

In addition, the Judge has made comments on the record that support the inference that he views fair rulings for the Plaintiff required by the facts and the law to have been favors for which he expects gratitude. For example the following exchange took placed during the July 8 hearing:

MR. GREEN: You repeatedly, throughout the case, you've been the advocate for the defense
THE COURT: To me this case is an example of the expression, No good deed goes unpunished. I have in this case devoted more time to this case than about any other medical malpractice case I can recall.

MR. GREEN: Most of it --
THE COURT: I've made myself available to you and the other attorneys. I've resolved numerous discovery disputes. I haven't kept track, but I know that some have gone in your favor and some have not. I feel like I performed a very high level of service for you in this personal injury case.

MR. GREEN: I disagree.
THE COURT: I know in my heart I'm trying, I always try, to do the right thing, and so I'm kind of saddened that this is coming -- you are not perceiving it in the same way I perceive it.

MR. GREEN: Could I make my arguments, your Honor?
THE COURT: Sure.

MR. GREEN: Thank you.

Continue reading "Sacramento Birth Injury Leads To Medical Malpractice Action, Part 2 of 5" »

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

PLAINTIFFS HEREBY OBJECT to Judge Paul S. Smith presiding at the trial of this medical malpractice action or in any further proceedings concerning this action.

This objection is based upon each of the following:

A person aware of the facts concerning the Judge's conduct and handling of the matters that have been presented to her in this personal injury case might reasonably entertain a doubt that the judge would be able to be impartial.

As set forth in the declarations submitted herewith, Judge Smith has repeatedly assumed the role of advocate for the defense; repeatedly cut off Plaintiff's counsel's efforts to make a record; while making a record favorable to the defense; and repeatedly violated Plaintiff's constitutional rights to due process by ordering Plaintiff to do things without any prior notice or opportunity to prepare for and brief the issue.

In addition, the facts support an inference that Judge Smith has abdicated his duties as a Superior Court Judge to fairly resolve issues based upon a fair application of the facts to the law. Instead his comments on the record reflect his view of his role as an anti-solomon like mediator position in which he repeatedly attempts to "split the baby" so as to more often than not bestow improper favors upon defense counsel even when the latter is completely in the wrong on the law and facts before the court. The following is an excerpt from the July 5 ex parte hearing in Judge Smith's chambers:

Continue reading "Sacramento Family Files Medical Malpractice Suit, Part 1 of 5" »

The following blog entry is written from a defendant’s position during pre-trial litigation. 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 personal injury case and its proceedings.)

Plaintiffs cannot make an argument for ostensible agency in this case. Mejia states that....a patient is presumed to have looked to the hospital for care unless he or she was treated by his or her personal physician, .... (Mejia, supra, 99 Cal.App.4th at 1455, emphasis added.) Ms. White was treated by her own obstetrician - Dr. Cindy Brown - during her hospitalization at UMH in March 2005.

Further, Dr. Brown is not an employee of UMH, although she did, and still does, have staff privileges at UMH. Physicians with staff privileges are not employees or agents of the hospital. Dr. Brown does not have an office in UMH. Dr. Brown's office is located at 2601 East Main Street in Ventura, California. Dr. Brown's practice was not established by UMH and is not considered an outpatient clinic of UMH. Dr. Brown's office/practice is called the Moss Medical Clinic. Dr Brown's employees were not employees of UMH, and were not paid by UMH. UMH did not bill for Dr. Brown's services; UMH only billed for services provided by UMH at UMH.

Based on the foregoing, plaintiff's cannot establish a claim for ostensible agency, as none of the factors to make such a finding are present in this case. As such, defendant UMH's motion for summary judgment should be granted.

Continue reading "Sacramento OG/GYNs Sued For Wrongful Death, Part 9 of 9" »

The following blog entry is written from a defendant’s position during pre-trial litigation. 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 personal injury case and its proceedings.)

THERE WAS NO AGENCY BETWEEN UMH AND DR. BROWN

Agency may be either actual or ostensible. (Civ. Code, § 2298; Vallely Investments v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th 816, 826.) Actual agency exists when the agent is really employed by the principal. (Civ. Code, § 2299.) Ostensible agency "may be implied from the facts of a particular case, and if a principal by his acts has led others to believe that he has conferred authority upon an agent, he cannot be heard to assert, as against third parties who have relied thereon in good faith, that he did not intend to confer such power..." (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 644.)

The doctrine establishing the principles of liability for the acts of an ostensible agent rests on the doctrine of estoppel [citation]. The essential elements are representations by the principal, justifiable reliance thereon by a third party, and change of position or injury resulting from such reliance [citation]. Before recovery can be had against the principal for the acts of an ostensible agent, the person dealing with an agent must do so with belief in the agent's authority and this belief must be a reasonable one. Such belief must be generated by some act or neglect by the principal sought to be charged and the person relying on the agent's apparent authority must not be guilty of neglect [citation]. (Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942, 960.)

Continue reading "Sacramento Family Files Medical Malpractice Suit After Infant Deaths, Part 8 of 9" »

The following blog entry is written from a defendant’s position during pre-trial litigation. 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 personal injury case and its proceedings.)

NO ACT OR OMISSION OF UMH CAUSED PLAINTIFF'S CLAIMED INJURIES

The law is well settled in California that causation must be proved within a reasonable medical probability based on competent expert testimony. Mere possibility is insufficient to establish a prima facie case. (Jones v. Ortho Pharmaceutical Corporation (1985) 163 Cal.App.3d 396, 402.) The cause of an injury has been defined as something that is a substantial factor in bringing about an injury. (Mitchell v. Gonzales (1991) 54 Cal.App.3d 1041.) Thus, to recover from UMH for medical negligence in this action, plaintiff must prove that the purported negligence of UMH was a substantial factor in bringing about the claimed injuries.

Sandy Singer has opined that no act or omission by UMH's nursing staff caused or contributed to plaintiffs alleged injuries. It is a physician function, rather than a nursing function, to order treatment for patients. Nurse Singer has opined that the nurses properly observed and reported Ms. White's condition and progress to her treating physician. The nurses appropriately monitored Ms. White during her early labor, and followed the doctor's orders. The nurses appropriately observed and reported on the condition and progress of the fetuses's based on the fetal monitor. The nurses appropriately recorded their observations in Ms. White's chart and on the fetal monitoring strips. The nurses also followed the appropriate protocols for medication administration during early labor, as well as the protocols for early labor, and for the labor and delivery of extremely premature infants.

Continue reading "Medical Malpractice By Sacramento Doctors Causes Wrongful Deaths, Part 7 of 9" »

The following blog entry is written from a defendant’s position during pre-trial litigation. 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 personal injury case and its proceedings.)

UMH DID NOT BREACH ITS DUTY OF CARE TO PLAINTIFFS DECEDENTS
A hospital such as UMH owes its patients a duty of reasonable care. In a wrongful death action that is based on medical malpractice, the evidence must be sufficient to allow the jury to infer that in the absence of defendant's negligence, there was a reasonable probability that the plaintiff would have obtained a better result. (Espinoza v. Little Company of Mary (1995) 31 Cal.App.4th 1304, 1315.) The measure of such duty is the degree of care and skill ordinarily used by hospitals generally in the community, according to what the undertaking to treat the particular patient requires in each instance. (Contreras v. St. Luke's Hospital (1978) 78 Cal.3d 919,927.)

The declaration of Sandy Singer, RN, establishes that she has sufficient credentials to qualify as an expert witnesses with regard to the care and treatment provided to plaintiff Joan White and plaintiffs decedents by UMH's nursing staff. She has opined, based upon a review of the relevant documents, that UMH did not breach its duty of care to plaintiff and plaintiffs decedents as the staff properly followed doctors' orders, properly monitored, observed and reported the condition of Joan White and the twins to the doctors and cared for Ms.. White and the twins appropriately. Nurse Singer has also stated that it is a physician function, rather than a nursing function, to order treatment for patients.

Continue reading "Wrongful Death Action Filed After Malpractice At Sacramento Hospital, Part 6 of 9" »

The following blog entry is written from a defendant’s position during pre-trial litigation. 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 personal injury case and its proceedings.)

As is evidenced by the attached declaration of Sandy Singer, UMH provided care and treatment to plaintiff Joan White, and plaintiff decedents (Owen and Tomas White), which met the standard of care. Ms. Singer has opined that the nurses the nurses properly observed and reported Ms. White's condition and progress to her treating physician. The nurses appropriately monitored Ms.. White during her early labor, and followed the doctor's orders regarding treatment. The nurses appropriately observed and reported on the condition and progress of the fetuses's based on the fetal monitor. The nurses appropriately recorded their observations in Ms.. White's chart and on the fetal monitoring strips.

The nurses followed the appropriate protocols for medication administration during early labor, as well as the protocols for early labor, and for the labor and delivery of extremely premature infants. In addition, Ms. Singer has opined that UMH did everything possible for the twins, but due to their extreme prematurity, nothing could be done to save their lives. Accordingly, plaintiffs cannot establish that UMH breached its duty of care, and UMH's motion for summary judgment should be granted.

A PARTY SUBMITTING UNCONTRADICTED EXPERT EVIDENCE MUST PREVAIL

California courts have held that where a defendant's expert testimony is uncontradicted, no triable issue of fact remains for the jury to consider, and the defendant must prevail as a matter of law. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406.) The Willard opinion describes the preemptive weight of expert testimony in a malpractice action as follows:

Continue reading "Wrongful Death Of Sacramento Newborns Leads To Suit Against Doctors, Part 5 of 9" »

The following blog entry is written from a defendant’s position during pre-trial litigation. 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 personal injury case and its proceedings.)

THE ISSUE OF NEGLIGENCE CAN ONLY BE RESOLVED BY EXPERT TESTIMONY IN THIS CASE

Based on the allegations of the complaint, plaintiffs contend that the twins died because of the alleged professional negligence of the hospital. Generally speaking, actions for professional negligence center on an allegation that the professional breached the applicable standard of care. Proving what the applicable standard of care is, under most circumstances, requires testimony of a properly qualified expert. In Jambazian v. Borden, (1994) 25 Cal.App.4th 836, 844, the court stated:

The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts. Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of lay persons.

In Evans v. Ohanesian (1974) 39 Cal.App.3d 121, at 128, the court set forth the standards to be met when one offers the testimony of a medical expert:

To qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional knowledge, learning, and skill of the subject under inquiry sufficient to qualify him to speak with authority on that subject; and (2) is familiar with the standard required...under similar circumstances...

Continue reading "Sacramento Mother Sues For Medical Malpractice After Death Of Her Two Newborns, Part 4 of 9" »

The following blog entry is written from a defendant’s position during pre-trial litigation. 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 personal injury case and its proceedings.)

ARGUMENT

SUMMARY JUDGMENT MUST BE GRANTED WHEN MOVING PARTY DEMONSTRATES THAT THE ACTION IS WITHOUT MERIT

A defendant may move for summary judgment in any action or proceeding if it contends the cause of action has no merit. (Code Civ. Proc., § 437c, subd. (a).) The cause of action has no merit if:

1. One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded, or

2. A defendant establishes an affirmative defense to the cause of action. (Code Civ. Proc., § 437c, subd. (n).)

The motion shall be granted if all of the papers submitted show there is no triable issue as to any material fact and the defendant is entitled to summary judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Any alleged disputes must concern material facts.
... [O]nce a party bears the initial burden of demonstrating an entitlement to judgment as a matter of law, the opposing party may not defeat summary judgment by attempting to generate a factual dispute as to immaterial issues ... (Romero v. American President Lines, Ltd. (1995 38 Cal.App.4th 1199, 1203.)

Continue reading "Two Infants Die At Sacramento Hospital Due To Malpractice, Part 3 of 9" »

The following blog entry is written from a defendant’s position during pre-trial litigation. 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 personal injury case and its proceedings.)

STATEMENT OF FACTS

Joan White was a 26-year-old G2, P1 who was under the obstetrical care of Dr. Cindy Brown. Ms. White had previously been under the care of Dr. Brown for the delivery of her first child only 11 months before this incident. At the time of this incident, Ms. White was pregnant with diamnaiotic, dichorionic twins. Dr. Brown's notes indicate that Ms. White had been without significant complaints until she was admitted to Universal Memorial Hospital at 23 weeks, two days gestation for tocolysis due to premature labor.

Ms. White underwent tocolytic therapy for two days at the hospital before it became apparent that the drugs were not working. She continued to go into labor and became fully dilated. At that point, Dr. Brown had discussions with Ms. and Mr. White about the poor prognosis for babies at such an early gestation. Dr. Greene, a neonatologist, also discussed the poor prognosis for babies born with such extreme prematurity.

The babies were delivered by cesarean section on XX/XX/2005. Baby A had APGARs of 2, 6 and 8, with a birth weight of 532 grams. Baby B had APGARs of 5 and 7 (no value reported for 10 minutes), with a birth weight of 560. Both babies were admitted to the NICU with a multitude of system problems, as would be expected of such premature infants.

Continue reading "Parents From Sacramento File Medical Malpractice Action Against Hospital, Part 2 of 9" »

The following blog entry is written from a defendant’s position during pre-trial litigation. 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 personal injury case and its proceedings.)

PLEASE TAKE NOTICE that defendant Universal Memorial Hospital of (hereinafter "UMH" ) will, and hereby does, move this court for an order that no substantial controversy or triable issue of material fact exists as to said defendant, and for entry of judgment in favor of said defendant and against plaintiffs.

This motion is made pursuant to Code of Civil Procedure section 437c of the on the ground that no triable issue of material fact exists as to UMH, in that said defendant breached no duty of care to plaintiff.

The motion will be based on this notice, the separate statement of undisputed facts filed concurrently herewith, the accompanying memorandum of points and authorities, the declaration of Sandy Singer, RN, Mary Black, Daniella Jones, the exhibits , and all pleadings, papers and other documents on file with this Court and, on such other evidence, oral or documentary, as may be presented at the hearing of this motion.

MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF THE CASE

This is a medical malpractice/wrongful death action arising out of allegations that plaintiffs' decedents were negligently examined, diagnosed and/or treated while they were patients of Universal Memorial Hospital. Ms. White was pregnant with twins when she was admitted to Universal Memorial Hospital at 23 weeks, two days gestation for tocolysis due to premature labor.

Continue reading "Sacramento Physicians Sued For Wrongful Death Of Two Infants, Part 1 of 9" »

The following blog entry is written from a defendant’s position during the early stages of litigation. 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.)

Plaintiff Signed the Conditions of Services Agreement and is Bound by Its Provisions.

The Conditions of Services form was signed and dated November 3, 2003, prior to the bulk of the treatment provided at UMC and by Dr. Cruz, and two days prior to the subject surgery. California law uniformly holds that one who signs an instrument may not avoid the impact of its terms on the grounds that she failed to read it before signing. In Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119, the plaintiff, a driver injured while participating in a sports car race, sought to avoid the impact of a release agreement on the ground that he failed to read it before signing. In affirming the trial court's grant of defendants' motion for summary judgment, the Court of Appeal stated:

[M]istake, as plaintiff has argued it, is not a viable ground for not enforcing the release. His position on this point we liken to a person who comments upon leaving the movie, Had I known what it was about, I never would have bought a ticket. In sum, plaintiff cannot now claim he was mistaken about what was in the release when he failed to read it before signing [Citation]. Id. at 126.

Continue reading "Sacramento Doctors Sued For Wrongful Death And Medical Malpractice, Part 4 of 4" »

The following blog entry is written from a defendant’s position during the early stages of litigation. 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.)

Dr. Cruz is Not the Ostensible Agent of UMC.

Pursuant to Mejia v. Community Hospital (2002) 99 Cal.App.4th 1448, in order to establish ostensible agency plaintiffs must prove all of the following three elements: (1) the plaintiff believed that the physician was an agent of the hospital, and this belief was reasonable; (2) plaintiff's belief must be generated by some act or neglect of UMC; and (3) the plaintiff must not be guilty of negligence. (Mejia, supra 99 Cal.App.4th 1456 -1457.) Herein, plaintiffs cannot establish these elements because the Conditions of Services form, signed by the patient and dated November 3, 2003, prior to the subject surgery by Dr. Cruz, clearly states under paragraph 4 that all physicians and surgeons furnishing services to the patient ... are independent contractors with the patient and are not employees or agents of the hospital.

Plaintiff was Given Actual Notice of the Independent Contractor Relationship between Physicians and UMC.

Ostensible agency may not be inferred when the hospital gave the patient actual notice of the true relationship between the hospital and the physician, and in the instant case, such notice was given to plaintiff, who acknowledged his signature on the Conditions of Admissions form dated November 3, 2003, signed by the plaintiff within 24 hours of his presentation to UMC, and a full day before the subject surgery by Dr. Cruz. Since plaintiff was provided with actual, written notice of the relationship between UMC and physicians, there can be no finding of an ostensible agency relationship between Dr. Cruz and UMC.

Continue reading "Sacramento Family Files Wrongful Death Action Against Hospital And Physicians, Part 3 of 4" »

The following blog entry is written from a defendant’s position during the early stages of litigation. 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.)

Further, plaintiff was given actual notice of the relationship between physicians and UMC in the Conditions of Services form. The physicians are independent contractors and not employees or agents of UMC. Moreover, plaintiffs signature appears on the Conditions of Services form. UMC cannot be liable for any physician negligence (i.e., diagnosis and treatment) alleged by plaintiffs.

Any assertion that UMC breached a duty in the diagnosis and treatment of the decedent's condition is also a legal impossibility--diagnosis and treatment are the sine qua non of practicing medicine and only a licensed physician may perform such acts. UMC does not have a license to practice medicine, and it does not practice medicine. (Bus. & Prof. Code § 2052 [ Any person who practices or attempts to practice ... any system or mode of treating the sick, or afflicted in the state... without having at the time of doing so, a valid, unrevoked, or unsuspended certificate... is guilty of a misdemeanor. )

Continue reading "Sacramento Hospital Fights Liability For Its Medical Malpractice, Part 2 of 4" »

The following blog entry is written from a defendant’s position during the early stages of litigation. 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.)

Universal Medical Center's Opposition to Plaintiffs' Motion for Summary Adjudication

Defendant, UNIVERSAL MEDICAL CENTER ("UMC") hereby opposes plaintiffs motion for summary adjudication. Plaintiffs have failed to meet their burden because UMC is not liable for the acts of an independent contractor physician; plaintiffs' moving papers fail to establish ostensible agency pursuant to the three prong test set forth by Mejia and plaintiffs were given actual notice that Dr. Cruz was an independent contractor, and Dr. Cruz was not a UMC employee or agent. Thus, summary adjudication must be denied.

MEMORANDUM OF POINTS AND AUTHORITIES

Summary adjudication must be denied because (1) UMC is not liable for the acts of an independent contractor physician; (2) plaintiffs' moving papers fail to establish ostensible agency pursuant to the three prong test set forth by Mejia and plaintiffs were given actual notice that Dr. Cruz was an independent contractor, and (3) Dr. Cruz was not a UMC employee or agent.

UMC is Not Liable for Independent Contractor Physicians.

If a doctor is an independent contractor at a hospital, the hospital is not liable for a doctor's alleged negligence. (Mayers v. Litow (1957) 154 Cal.App.2d 413; Konoff v. Fraser (1944) 62 Cal.App.2d 788.)

Continue reading "Sacramento Man's Family Sues Hospital For Medical Malpractice, Part 1 of 4" »

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" »

(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. Green
On June 24th Plaintiff was believed to have suffered a gastrointestinal bleed. On that day, Dr. Green placed an arterial and femoral line in Plaintiff's groin to measure his blood pressure and rapidly infuse blood. The line is placed using a guide wire which is inserted ir the groin and up the iliac vein approximately 15-20 centimeters into the area of the bifurcation of the aorta. A hard rigid catheter is placed on top of the guide wire which, if erroneously placed can cause injury to the aorta. Assuming during the placement of these line, Dr. Green lacerated the posterior wall of the abdominal aorta and/or the adjacent area of the left common iliac vein, it would be a breach of the standard of care and a substantial factor in causing Plaintiff's second series of injuries. Dr. Green has presented no evidence rising to a medical probability that his placement of the line did not cause injury.

However, even assuming Dr. Green did not cause the injuries, as the vascular surgeon taking part in the laparotomy on the 24th, Dr. Green was responsible for determining the source of the hemorrhage, including ruling out injury to the abdominal aorticbifurcation and the anterior wall of the left common iliac vein. Dr. Green admits that he did not discover the source of Plaintiffs bleed on the 24th As evident by the events on June 28th, Dr. Green failed to adequately inspect, discover and repair all sources of the bleed. Dr. Green's failure to discover and repair the injury was below the standard of care and was a substantial factor in causing Plaintiff's injury.

Dr. O’Connor
Defendant Dr. O’Connor s treatment of Plaintiff began on June 19, 2005, when Plaintiff suffered from respiratory failure and complications of aspiration pneumonia and a pulmonary embolism. On June 28th, Plaintiffs blood pressure again dropped and right femoral venous lines were placed by Dr. O’Connor. If Dr. O’Connor caused a puncture/laceration to the aortic bifurcation and/or to the left common iliac vein during the course of these placement of the femoral venous lines it was below the standard of care and a substantial factor in causing Plaintiff's second set of injuries.

Continue reading "Sacramento Man Sues For Huge Damages After Surgical Malpractice, Part 7 of 7" »

(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. Brown
Dr. Brown's placement of the first trocar or Veres needle during the initial surgery caused multiple vascular injuries, including a laceration to the left iliac vein, a laceration to the mesentery and small bowel. Dr. Brown was below the standard of care in causing these injuries.

Dr. Spring, Dr. Brown's retained expert testified these injuries are not supposed to happen.
Q: you're not suppose to injury the vein, are you?
A:. No.
Q: You're not supposed to injure the mesentery, correct?
A: No. That's not the intent of the operation.
Q: And you're not suppose to injur the bowel correct?
A: That's correct.

The same response was given for the injuries to the mesentery and the bowel.

Dr. Spring confirmed these injuries were caused by Dr. Brown's placement of the trocar.
Q: Tell me how the vein injury was caused.
A: Most likely be the insertion of the trocar.

Further, it was Dr. Brown's and Dr. Garcia's duty to discover all areas of injury during the first exploratory surgery.
Q: Whose responsibility was it to determine the sources of the bleeding?
A: I believe the vascular surgeon would do that. That would be h s responsibility.
Q: Am I correct then that once Dr. Brown finished the cholecystectomy despite that fact that he may be responsible for causing the injuries it became Dr. Garcia's obligation to identify any source of injuries?
A: Correct.

Continue reading "Medical Malpractice At Sacramento Hospital Has Catastrophic Results, Part 6 of 7" »

(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.)

THE SECOND ACT OF NEGLIGENCE IS A SECOND CAUSE OF ACTION
Although Plaintiff suffered multiple injuries when Dr. Brown placed the original trocar in the iliac vein, the mesentery and the small bowel, which commutatively give rise to one general damage award of the $250,000 MICRA cap, Plaintiff suffered two totally separate injuries from potentially separate acts of negligence giving rise to a second and third $250,000 cap. Indeed had Plaintiff so chosen he could have brought a separate lawsuit for the injury to his abdominal aorta and for the left iliac vein. See (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848,1854. Each time a separate and distinct wrongful act causes this injury a separate cause of action arises because a separate right has been violated.)

Defendants Garcia and Green's own expert, Dr. Richard Davis testified at deposition there are two separate and distinct injuries. (See Deposition of Dr. Richard Davis, page 51, lines 17-21, attached hereto as Exhibit 1. ) Dr. Davis further testified that the injury to Plaintiff's bifurcation of the aorta could not have been present during the June 16th surgery because Dr. Garcia would have been able to see it. (See Deposition of Dr. Richard Davis.) Plaintiff has separate causes of action for each injury and therefore separate damage limitations. Plaintiff will ask the jury to award him S750,000 in general damages for medical malpractice.

CAUSATION
As discussed above, the type of injuries suffered by Plaintiff do not occur in the absence of negligence. It is undisputed, even by defendants own experts that one, some, or all, of the defendants caused Plaintiff's injuries.

Continue reading "Sacramento Surgeons Commit Medical Malpractice, Part 5 of 7" »

(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.)

une 28, 2005, Hemorrhagic Shock and Cardiac Arrest
On June 28th, Plaintiffs blood pressure again dropped. Right femoral and venous lines were placed in his groin by Dr. O’Connor. A third emergency surgery was performed by Dr. Brown and Dr. Garcia. A major hemoperitoneum was discovered with over five liters of blood intraperitoneally in the abdomen. It was not until the surgery on the 28th that Dr. Garcia and Dr. Brown finally discovered the source of bleeding, two totally separate injuries, a laceration at the posterior aspect of the aorticbifurcation and an associated kissing laceration of the left common iliac vein. The two lacerations were repaired and the abdomen was left open. These injuries were four to five centimeters away from the first series of injuries. Two days later, another laparotomy was performed and Plaintiffs abdomen was closed. These newly discovered injuries could have been caused from two separate events and certainly were caused by separate instrumentalities then that which lacerated Plaintiff's iliac vein, mesentery, and small bowel on June 16th. As such, they are subject to two additional general damage recoveries, each in a separate amount not to exceed $250,000.

What was thought to be an outpatient procedure turned into a 35-day stay in ICU with multiple complications, two near death experiences and months of recuperation. Plaintiff was finally released from the hospital on July 21, 2005, totally disabled.

LIABILITY
Liability is clear. During the course of the cholecystectomy and the subsequent treatment by the defendants in this matter, Plaintiff sustained the following injuries: 1) laceration of the left iliac vein,

Continue reading "Sacramento Patient Sues For Medical Malpractice, Part 4 of 7" »

(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.)

As a result of the abdominal bleed, Plaintiff suffered an abdominal compartment syndrome and he went into respiratory arrest, CPR was performed, and he was urgently taken to the operating room where Dr. Brown and Dr. Green performed a laparotomy (opening of his abdomen). Dr. Brown discovered a large hemoperitoneum, an enteral defect in the small bowel interloped mesenteric interstices caused during the first surgery. Neither Dr. Brown nor Dr. Garcia identified the bowel injury during the original surgery on June 16th although it was present. To not identify same was negligent. The failure to identify and repair the hole in Plaintiffs bowel may be a separate and distinct injury giving rise to a separate cause of action and a cap on general damages of $250,000.

Following the repair to the small bowel, Plaintiffs abdomen was left open. Two days later, on June 26th, Dr. Brown inspected and closed the abdomen. Dr. Brown failed to identify any additional sources of bleeding.

As the vascular surgeon taking part in the laparotomy on the 24th, Dr. Green was responsible for determining the source of the massive hemorrhage, including rulding out injury to the abdominal aorticbifurcation and the anterior wall of the left common iliac vein. As evidenced by the events on June 28th, Dr. Green failed to adequately inspect, discover and repair all sources of the abdominal bleed. If Dr. Green caused this bleed by injuring the aorta or left iliac vein when he set his lines this is a separate and distinct cause of action from the prior injuries and gives rise to a separate and distinct general damages cap of $250,000. (See Part 4 of 7.)

Continue reading "Sacramento Medical Malpractice Case Goes To Trial, Part 3 of 7" »

(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.)

June 16, 2005, Initial Surgery
Dr. Brown's placement of the first trocar or Veres needle caused multiple vascular injuries, including a laceration to the left iliac vein, requiring immediate repair by a vascular surgeon. As a result, Dr. Garcia identified and repaired a 0.5 cm laceration to the left common iliac vein. During the course of the repair to the iliac vein, Dr. Garcia placed DeBakey clamps in the area of thebifurcation of the abdominal aorta. As a vascular surgeon, Dr. Garcia had the duty and the obligation to inspect the area and discover any additional sources of in ury or bleeding. This would include inspecting the aortic and iliac vessels to rule out a more deep and penetrating vascular injury from the trocar. Dr. Garcia claims that as of his surgery on June 16th there was no separate injury to the bifurcation of the abdominal aorta and no injury to the iliac vein in that area

Dr. Brown and Dr. Garcia examined the peritoneal cavity for other area; of injury. Dr. Brown and Dr. Garcia inspected the small bowel and mesentery and found a laceration to the mesentery. The third injury to the small bowel was missed. Plaintiff's surgical site was closed and he was transferred to XYZ Hospital.

June 19, 2005, Respiratory Failure
Three days after the original surgery, Plaintiff was in respiratory distress. A CT pulmonary angiogram was performed which revealed a large right pulmonary arterial embolus. The following day, Defendant Dr. O’Connor began treating Plaintiff for respiratory failure and complications of aspiration pneumonia and pulmonary embolism. Dr. O’Connor opined that the respiratory failure was not just from the pulmonary embolism, but that he also had an aspiration event. The blood clot which caused the pulmonary embolism had developed in Plaintiff's left iliac vein at the site lacerated during the cholecystectomy. All experts agree the pulmonary embolism was a direct result of Dr. Brown's laceration of the left iliac vein.

Continue reading "Trial For Surgical Malpractice In Sacramento Hospital, Part 2 of 7" »

(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.)

PLAINTIFF JOHN SMITH’S MEDICAL MALPRACTICE TRIAL BRIEF

I. THE PARTIES
Plaintiff: John Smith, date of birth: XX/XX/1967.

Defendants: Dennis Brown, M.D., General Surgeon Bob Garcia, M.D., Vascular Surgeon Paul Green, M.D., Vascular Surgeon, James O’Connor, M.D., Interventional Radiologist and Pulmonologist

Injuries: Laceration of the left iliac vein, laceration of the mesentery and small bowel perforation, posterior laceration of the bifurcation of the abdominal aorta and, an anterior wall laceration, residual injuries including pulmonary embolism, respiratory arrest, massive abdominal bleed, cardiac arrests, and abdominal compartment syndrome. Past Medical Bills: $601,150.12 (Approx.)

Future Medical Care: Monitoring of Deep Vein Thrombosis and potential surgery

Loss $14,636.80, plus sick leave and annual leave earnings for the same of earnings: time frame.

General Damages: $750,000.00.

STATEMENT OF THE FACTS
On June 16,2005, Plaintiff went to the XYZ Surgery Center to have his gallbladder removed, also known as a cholecystectomy. This was suppose lo be a routine procedure performed by general surgeon Dennis Brown, M.D. Defendant Dr. Brown chose to do the surgery using a laparoscopic technique which necessitated the use of a Veres needle to gain access of the abdominal cavity, and a trocar, sharply pointed instruments, use to puncture the peritoneum for placement of the cannulas.

Continue reading "Sacramento Surgical Medical Malpractice Lawsuit, Part 1 of 7" »

(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.)

CLAIMED SPECIAL DAMAGES
Plaintiff has consulted with expert rehab nurse, Tamara Evans, BSN, RN, PHR, CCM. Ms. Evans believes that Ms. Green has a number of needs. These needs include:
1. CNA level care for 8 - 12 hours per day;
2. Housekeeping care once week for 4 hours;
3. A motorized wheelchair;
4. A lift;
5. A minivan with ramp;
6. Ramps at her home;
7. Physical therapy; and
8. A new mattress for her hospital bed.

Don Black, a local Ph.D., has placed a present value on the ongoing expenses. He places this value, which is primarily for the CNA level care at 1.4 million. In addition, there are present costs for items which add $100,000.00 (van, wheelchair, lift, etc.).

In addition to these expenses, there is the cost of replacing plaintiff's insurance. UH billed her $983,031.64. Of that, $485,000.00 was paid by her insurance. However, this payment exhausted her $500,000.00 per condition coverage related to the back surgery and any complications. Plaintiff cannot replace the coverage to offset the loss. A substandard replacement, according to expert testimony, would cost $900.00 - $1,000.00 per month. This, according to Dr. Black, is an added present value loss of $274,000.00.
Plaintiff's economic damages thus total $1,750,000.00.

GENERAL DAMAGES
Plaintiff is profoundly disabled and unable to provide for her basic needs. She is depressed and in pain. She seeks the $250,000.00 limit for general damages.

Continue reading "Sacramento Hospital Sued For Malpractice Post-Surgery, Part 4 of 4" »

(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.)

DAMAGE ISSUES

Plaintiff's medical records contain the following descriptions:

This a 57-year-old Caucasian female status post anterior spinal fusion complicated with left lower extremity neuro deficit, abdominal wound infection, and occluded left common iliac artery. The patient underwent an anterior spinal fusion L4-S1. It was found during this operation the patient had some fibro-arterial occlusive disease. Her left iliac artery was occluded and required embolectomy and Dacron interposition graft to the left common iliac artery.

Postoperatively, the patient had an unhealed abdominal wound. The patient has a history of diabetes mellitus. Postoperatively, the wound had undergone Wound-Evac therapy. At various times the patient was offered a split-thickness skin graft. he wound also required multiple debridments and its was debrided on 08/26 and 08/29. Secondary to her diabetes, she did develop a wound infection with Pseudomonas and she was on appropriate antibiotics for a period of time. Endocrine was consulted for a tight control of her diabetes in order to promote wound healing.

57-year-old female developed paralysis of the left leg after she undervent anterior spine fusion which was complicated by iliac artery thrombosis and subsequent iliac bypass surgery on 7/22/02. She does not have sensation below the mid thigh level. She has history of diabetes and history of traumatic injury to the right upper extremity and amputation of the right leg. She is currently on an I.V. heparin drip.

Continue reading "Sacramento Couple File Malpractice Action After Surgery, Part 3 of 4" »

(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.)

LIABILITY ISSUES

BAJI 6.11 provides that a physician has a duty to disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment BAJI further provides that when a procedure inherently involves a known risk of death or serious bodily harm, the physician has a duty to disclose to the patient the possibility of such an outcome and to explain, in lay terms, the complications that might possibly occur. Plaintiffs allege that did not occur in this medical malpractice case.

Ms. Green and her husband met with Dr. Smith on several occasions. Ms. Green alleges that she told him that she would not have surgery if anything could happen to her left leg. She also alleges that on several occasions, Dr. Smith promised her that nothing would happen to her left leg.

Dr. Smith planned a complicated front and back surgery with installation of rods and screws. Plaintiff suffered from diabetes and had a risk of artery disease and infection. Both complications occurred during or after the July 22, 2002 surgery. A vascular repair of the occluded artery did not work. Plaintiff's leg lost oxygen for so long that she suffered neurological damage that rendered her leg useless.

Continue reading "Sacramento Surgeon Sued For Malpractice, Part 2 of 4" »

(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.)

PLAINTIFF’S TRIAL BRIEF

NATURE OF ACTION
This is a medical malpractice against Stan Smith, M.D., and his employer, the Universal Hospital. Plaintiff, Joan Green, alleges that negligent informed consent led her to undergo a back surgery in July 2002, and that complications therefrom left plaintiff completely disabled.

PARTIES AND COUNSEL
Plaintiff, Joan Green, is a 65-year-old resident of Sacramento, who suffered a right leg amputation following an accident in 1986. Plaintiff, Bobby Green, is her husband, who is seeking loss of consortium damages. They are represented by Tim Brown, Attorney at Law.

Defendant, XYZ Corp. operates the Universal Hospital (UH). Defendant, Stan Smith, M.D., is employed as a physician and professor by the UH Medical Center. Defendants are represented by David Brown, Attorney at Law.

FACTUAL BACKGROUND
Joan Green is a married Caucasian woman who was born on XX/XX/1944. Her health was good until 1986 when she was in a pedestrian versus truck accident that almost killed her. She suffered a right leg above the knee amputation, a degloving of her right arm, and other injuries. Her left leg was broken, but healed. After recovering, she was able to drive and do many household activities using her left leg. She used her wheelchair much of the time, but in 2002, she was finally fitted with a usable prostheses. However, she did have significant low back pain, diabetes, Krohns disease, and had been a smoker for 30 years until 2001. Her physician in Sacramento suggested a consult with an orthopedic surgeon at UH. An appointment was made with Stan Smith, MD.

Continue reading "Sacramento Woman Left Disabled After Medical Malpractice, Part 1 of 4" »

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

22. Said willful and reckless misconduct by defendants Wellness and Jones falls outside the purview of C.C.P. § 340.5 and cannot be reasonably interpreted as acts or omissions occurring within the context of substandard professional health care services, but rather more rationally falls within the context of a gross mis-diagnosis, battery and mistreatment of the Plaintiff.

23. Therefore, said Willful and Reckless Misconduct and Battery by the defendants and each of them, was oppressive and malicious within the meaning of Civil Code §3294 in that said defendant' conduct was willful, wanton, malicious, oppressive and done with conscious disregard to Plaintiffs rights and safety and in that it subjected plaintiff to cruel and unjust hardship, and injury, and which justifies an award of exemplary and punitive damages in an amount to be determined at trial.

24. As to the other causes of action Plaintiffs damages are not limited by M.I.C.R.A. This cause of action has been pleaded in the alternative.

WHEREFORE, Plaintiff prays for judgment as follows:
1. General damages in the maximum amount provided in law;
2. For past and future medical, hospital, rehabilitation and incidental expenses for care and treatment, according to proof at trial;
3. For past and future lost earnings, and for lost earning capacity, according to proof at trial;

Continue reading "Reckles Conduct By Sacramento Chiropractor Leads to Lawsuit, Part 4 of 4" »

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

11. As a further direct and proximate result of Defendants' negligence, Plaintiff suffered severe and debilitating pain, anxiety and emotional distress, and will continue in the future to suffer severe and debilitating pain anxiety and emotional distress, in an amount not yet determined but to be shown according to proof at trial.

12. As a further direct and proximate result of Defendants' negligence. Plaintiff incurred medical expenses for past medical care, and will continue in the future to incur medical expenses in an amount not yet determined, but to be shown according to proof at trial.

13. As a further direct and proximate result of Defendants' medical negligence, Plaintiff incurred losses in her earnings and earning capacity and will continue in the future to lose earnings in an amount not yet determined, but to be shown according to proof at trial.

14. On this cause of action, Plaintiff is entitled to all compensatory damages available against defendants for their negligence, including any and all Economic Damages, without limit, and all Non-Economic Damages, subject to the limitations of California's Medical Injury Compensation Reform Act of 1975 (M.I.C.R A.).

COUNT TWO: WILLFUL OR RECKLESS MISCONDUCT/MEDICAL BATTERY
[Brought by Plaintiff Sura Bhandi as against all Defendants]

15. Sura Bhandi hereby incorporates by reference the foregoing allegations and realleges the same as though set forth in full herein.

Continue reading "Sacramento Chiropractic's Negligence Leads To Malpractice, Part 3 of 4" »

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

Complaint For Damages cont.

5. At all times mentioned herein, Defendants, and each of them, were the agents, principals, servants, or employees of each of the remaining Defendants, and were at all times acting within the purpose and/or scope of such agency, service and/or employment. Each Defendant, including Does I through 100, consented, ratified, permitted, encouraged, directed, and/or approved the acts of each other Defendant.

6. For the year prior to October of 2008, Plaintiff Sura Bhandi had consulted with and employed Defendants Wellness Center, Tim Jones, D.C., and DOES 1 through 100, inclusive, and each of them, to examine, diagnosis, treat and provide chiropractic care for soreness in her shoulders and back.

7. Defendants, and each of them, owed a duty to Plaintiff to exercise the degree of knowledge, skill, prudence and diligence as other members of their respective professions commonly possess and exercise.

8. Defendants, and each of them, breached their respective duties owed to Plaintiff, and failed to exercise the degree of knowledge, skill, prudence and diligence as other members of their respective professions commonly possess and exercise, including but not limited to the following:
A. Defendants, and each of them, negligently examined Plaintiffs injuries;
B. Defendants, and each of them, negligently failed to diagnose the true nature and extent of Plaintiffs injuries;
C. Defendants, and each of them, negligently prescribed treatment that made Plaintiffs injuries permanent and more severe;
D. Defendants, and each of them, negligently overrated the Plaintiff causing her permanent injuries requiring immediate surgery;
E. Defendants, and each of them, failed to render medical care with the knowledge, skill, prudence and diligence that is commonly possessed and exercised by competent chiropractors.
F. Defendants, and each of them, failed to properly refer Plaintiff to a competent medical provider, to address her medical concerns so she could attain adequate care.

Continue reading "Medical Malpractice Action Filed By Sacramento Woman, Part 2 of 4" »

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

COMPLAINT FOR DAMAGES (1) Negligence/ Medical Malpractice; (2) Willful Misconduct and Battery
[Brought by Plaintiff Sura Bhandi as against all Defendants]

COUNT ONE: NEGLIGENCE/ MEDICAL MALPRACTICE
1. Plaintiff Sura Bhandi is, and at all times relevant to the matters resident of Sacramento County.

2. Defendant Wellness Center (WELLNESS) is a California corporation, which does business in Sacramento County, and which is engaged, among other things. in the business of rendering chiropractic and other health care and services to the general public for compensation, and which held itself out to the general public and to Plaintiff Sura Bhandi to be competent in rendering chiropractic and other care and services.

3. Defendant Tim Jones, D.C., is a chiropractor, licensed to practice in the State of California, who held himself out to the general public and to Plaintiff Sura Bhandi to be competent and skilled in rendering chiropractic and health care, and to render such chiropractic and health care with the same skill, prudence, and diligence as other members of his profession commonly possess and exercise.

4. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants DOES 1 through 100, inclusive, are unknown to Plaintiff who therefore sues said DOE Defendants by fictitious names.

Continue reading "Sacramento Chiropractic Patient Sues For Malpractice, Part 1 of 4" »

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

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 personal injury case present such issues to the court.

In Morales v. Thompson (1959) 171 Cal. App.2d 405, 407, the appellate court, citing former Vehicle Code section 488 (the predecessor to V.C. section 20013), noted that "the trial court properly precluded a police report plaintiff's attorney sought to introduce..." As explained in Summers v. Burdick (1961) 191 Cal. App.2d 464, 470, Vehicle Code sections 488 and 488.5 (now sections 20012 to 20015, inclusive), preclude police reports from being admitted into evidence.

In addition, any witness statements contained within the report are inadmissible hearsay, and not subject to any recognized exception. Evidence Code section 1200, et seq.

Not only is the traffic collision report inadmissible, but the plaintiff should be precluded from introducing statements contained therein through the back door by way of their experts. As explained by the court in the recent case of Garibay v. Hemmat (2008) 161 Cal. App.4th 735, 743, an "expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural..." The expert in that case based his opinions from medical records which were hearsay, and therefore, the court concluded that the expert's opinion based on assumptions of fact without evidentiary support has no evidentiary value. Id.

The court in Garibay disapproved of the back door method of admitting otherwise inadmissible evidence through experts: Physicians can testify as to the basis of their opinion, but this is not intended to be a channel by which testifying physicians can place the opinion of out-of-court physicians before the trier of fact. Id. In other words, experts should not be used as a method to put inadmissible evidence before the jury. "[T]he expert's opinion may not be based on assumptions of fact without evidentiary support..." People v. Richardson (2008) 43 Cal.4th 959.

Continue reading "Sacramento Traffic Collision Report Subject Of Scrutiny In Medical Malpractice Case, Part 2 of 2" »

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

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 personal injury case present such issues to the court.

Motion in Limine to Preclude Evidence of Traffic Collision Report

Defendants, X, Y, Z Medical Center and Edward W., M.D., hereby move for an in limine order precluding evidence of the traffic collision report prepared in regard to the Sacramento traffic accident giving rise to this accident. This motion is based on the grounds that the traffic collision report is not admissible as evidence pursuant to Vehicle Code section 20013, and on the grounds that the witness statements contained therein are inadmissible hearsay. It is also based on Evidence Code section 352.

The defendants request that the plaintiff be precluded from introducing the traffic collision report into evidence and that her counsel be precluded from exhibiting the report to the jury during the trial. The defendants also request that the plaintiff's witnesses, including experts, be precluded from referencing the report and the contents thereof in their testimony and from basing any opinion on the contents of the report.

MEMORANDUM OF POINTS AND AUTHORITIES
I.
THE TRAFFIC COLLISION REPORT IS INADMISSIBLE

This medical malpractice action arises out of an auto versus pedestrian accident that occurred on July 2, 2006. Following the accident, a law enforcement officer investigated, and a traffic collision report was prepared.

That report is inadmissible, pursuant to Vehicle Code section 20013, which provides, No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident... In Box v. California Date Growers Ass'n (1976) 57 Cal. App.3d 266, the appellate court held that the trial court properly refused to admit into evidence either the police accident report or the diagram portion thereof.

Continue reading "Sacramento Auto Accident Victim Sues For Medical Malpractice, Part 1 of 2" »

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

The following four blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.

SPECIAL INSTRUCTION #1 MUST BE USED BECAUSE THERE IS NO CACI INSTRUCTION THAT INFORMS THE JURY OF THE PLAINTIFF'S BURDEN IN ESTABLISHING CAUSATION

The other CACI instructions (CACI 400, as modified by CACI 500, and CACI 200) instruct the jury that the plaintiff must establish causation, but they do not instruct the jury as to what satisfies causation here. Plaintiffs incorrectly assert that establishing the burden of proof for the overarching action is equivalent to explaining the standard for causation.

Further, plaintiffs' assertion that the phrase reasonable medical probability would be unduly confusing to the jury is without merit. Medical probability is not legalese; it is simply using the additional word medical to demonstrate that the probability must be judged by a medical professional rather than a layman. Any jury instruction contrary to Special Instruction #1 would provide the jury with a clear understanding of an incorrect burden of proof.

Continue reading "Sacramento Plaintiff Must Prove Causation In Medical Malpractice Action, Part 4 of 4" »

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

The following four blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.

The court then proceeded to apply the substantial factor test to medical malpractice actions. Espinosa determined that causation is satisfied when the plaintiff produces evidence that to a reasonable medical probability, the plaintiff would have obtained a better result absent the defendant's negligence. The court then decided the plaintiff's expert had met that burden. Based upon Espinosa reliance on reasonable medical probability to establish causation in a medical malpractice case, it seem perfectly reasonable, if not necessary, to advise our jury of the specific requirement for medical causation.

Further, Espinosa cites Jones v. Ortho Pharmaceutical Corp. to establish that mere possibility [of causation] alone is insufficient to establish a prima facie case. Id. at 1316, citing Jones, (1985) 163 Cal.App.3d 396. The Espinosa court relied on Jones for the proposition that a possible cause only becomes a probable cause when, in the absence of other reasonable causal explanations, it becomes more likely than no that the injury was a result of a defendant's action. Espinosa, Cal.App.4th 1304, 1316. However, Espinosa distinguished Jones only as to the extent that the Jones court proceeded to apply the 50% factor rule , which is not applicable in general medical malpractice cases. Id. at 1319. As the so-called 50% factor rule is completely irrelevant to the Special Instruction #1 being requested in this matter, the Espinosa court's distinction of Jones is clearly inconsequential, and plaintiffs' mention of it is made purely to distract the court from the issue of a proper jury instruction on medical causation.

Continue reading "Expert Testimony Required In Sacramento Medical Malpractice Case,Part 3 of 4" »

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

The following four blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.

ESPINOSA v. LITTLE COMPANY OF MARY HOSPITAL AFFIRMS THE REQUIREMENT THAT CAUSATION BE ESTABLISHED TO A REASONABLE DEGREE OF MEDICAL PROBABILITY IN A MEDICAL MALPRACTICE ACTION

Espinosa specifically applies the substantial factor test to medical malpractice actions, to determine that the element of causation is satisfied when a plaintiff produces evidence to allow the 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. Espinosa v. Little Company of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-5. (Quoting, Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.)

Plaintiff's understanding of Espinosa is entirely misguided. The Espinosa court did not address the issue of how the jury should be instructed regarding causation in a medical malpractice action. Rather, the issue before the court was whether the plaintiff actually presented expert testimony that could satisfy the plaintiff's burden to prove causation to a reasonable medical certainty. In conducting its analysis on that issue, the Espinosa court began its evaluation by expressing support for the language of BAJI 3.76, as used in general negligence cases.

Indeed, only through careful and creative excerpts can the plaintiff manage to imply that Espinosa rejected the use of reasonable medical probability as a jury instruction.

Continue reading "Man From West Sacramento Files Medical Malpractice Action, Part 2 of 4" »

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

The following blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.

Defendant's Trial Brief Re: Special Jury Instruction #1

IT IS UNDISPUTED THAT DEFENDANT'S SPECIAL INSTRUCTION #1 IS AN ACCURATE STATEMENT OF THE LAW FOR CAUSATION IN MEDICAL MALPRACTICE

Causation Must Be Proven Within A Reasonable Degree of Medical Probability

The law is well settled that in a personal injury action, causation must be proven within a reasonable medical probability based on competent expert testimony. Jennings v. Palomar (2003) 114 Cal.App.4th 1108, 1118. Defendant's Special Instruction #1 states precisely the test for the jury to evaluate causation: Causation must be proven within a reasonable medical probability based upon competent expert testimony. Defendant's Special Instruction #1 is thus well suited to advise the jury of the requisite standard, since it is a proper and accurate statement of controlling law.

CACI 430 Fails to Apprise the Jury of The Standard of Causation For Medical Malpractice

CACI 430 states in full that:
A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial fact. It does not have to be the only cause of harm.

Continue reading "Sacramento Doctors Sued For Malpractice, Part 1 of 4" »

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

IN ESPINOSA v. LITTLE COMPANY OF MARY HOSPITAL, THE SECOND DISTRICT REJECTED ARGUMENTS IDENTICAL TO DEFENDANTS' ARGUMENTS HERE
Included in the Sources and Authorities supporting CACI 430, is a Court of Appeal case from the Second District, Espinosa, which applies the substantial factor standard specifically to a medical malpractice case. As the Honorable Justice Croskey stated in Espinosa, in cases alleging negligence, the proper test for proving causation is the one set out in BAJI no. 3.76 (8th ed. 1994 bound vol.): The law defines cause in its own particular way. A cause of injury, damage, loss of harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. (31 Cal.App.4th at 1313.) CACI 430 restates the substance of BAJI 3.76, in somewhat more plain and understandable language. Defendants ignore this controlling Second District case.

Also in Espinosa, as here, the Defendants relied primarily on Jones v. Ortho Pharmaceutical Corp (1985) 163 Cal.App.3d 396. (Compare, 31 Cal.App.4 th at 1320-1321, with Defendants' Special Instruction # 1.) As the Second District noted, Jones is not a medical malpractice case. (31 Cal.App.4 th at 1320.) Perhaps more importantly, as the Second District also noted, Jones is distinguishable because it concerns causes of cancer which are yet unproven, which causation had to be proven by testimony about the statistical risk or likelihood of brain damage. (31 Cal.App.4th at 1320.) In Jones, as in the present case, causation does not depend on statistical probabilities. As Espinosa, here it also would be error to fail to apply the substantial factor standard of causation.

3. CACI INSTRUCTIONS OTHER THAN CACI 430 INSTRUCT THE JURY ON THE BURDEN OF PROOF AND THE DEGREE OF PROOF
Defendants seek to supplement CACI 430 apparently because it does not require that Plaintiffs establish causation to a reasonable degree of medical probability. To the contrary, reasonable medical probability means more likely than not. (See, Espinosa v. Little Company of Mary Hospital, supra, 31 Cal.App.4th at 1316.)

CACI instruction no. 400, with medical added before negligence as required by CACI Instruction no. 500, instructs the jury that the Plaintiff must prove the elements of medical negligence, including causation. CACI instruction no. 200 instructs the jury on the requisite degree of proof to establish the elements of the negligence cause of action. Therefore, together CACI nos. 200 and 400 [as modified by 500] instruct the jury that Plaintiff must prove the elements of his case, including causation, by the more likely than not standard. An additional instruction on this same issue, stated in legalese ( reasonable medical probability ) rather than plain language ( more likely to be true than not true ), would place undue emphasis on Plaintiffs burden and confuse the jury.

4. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the court refuse Defendants' special instruction # 1.

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

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

Plaintiff's Trial Brief Re: CACI 430
MEMORANDUM OF POINTS AND AUTHORITIES

SUMMARY OF ARGUMENT
Defendants propose Special Jury Instruction # 1 based on the argument that CACI 430 is incomplete because it does not instruct on reasonable medical probability. To the contrary, in the Sources and Authority listed under CACI Instruction No. 430 ( CACI 430 ), the authors of the jury instruction list Espinosa v. Little Company of Mary Hospital (1995) 31 Cal.App.4th 1304, 1313-1314 ( Espinosa ), a medical malpractice case. In Espinosa, the Second District Court of Appeal ( Second District ) considered, and rejected, arguments identical to those made now by Defendants. This court should reject those arguments as well under the authority and reasoning of Espinosa, particularly as they apply to this personal injury matter.

Further, other CACI jury instructions cover the burden of proof and the degree of proof. Reasonable medical probability means more likely than not. (See, Espinosa, supra, 31 Cal.App.4th at 1316.) CACI instruction no. 400, modified by adding medical under CACI Instruction no. 500, already instructs the jury that the Plaintiff must prove the elements of medical negligence, including causation. CACI instruction no. 200 already instructs the jury on the requisite degree of proof.

Continue reading "Medical Malpractice Claim Filed By Sacramento Family, Part 1 of 2" »

(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" »

When patients receive medical treatment there is generally a very high expectation that the results will be positive. However, that is not always the case. And in those cases where the outcome is either unexpected or is complicated, there will come a moment when the physician and the patient will have to communicate about how to resolve the situation. At that point the physician will be faced with a dilemma: should he or she apologize or express some regret.

Traditionally, physicians were discouraged from doing so because their actions might be interpreted as an admission of negligence or wrongdoing. The fairly recent emergence of so-called "apology" statutes in many states is making it easier for physicians and health care providers to have a more honest and open discussion with patients about such matters.

These discussions benefit both parties and often go a long way to resolving concerns about the treatment outcome without expensive medical malpractice litigation. "Although a physician may wish to tell a patient when he has made a mistake, lawyers often order doctors to say nothing,’’ wrote University of Florida law professor Jonathan R.Cohen in the Southern California Law Review. “The physician’s silence may then trigger the patient’s anger. This alienation may then prompt the patient to sue.”

Many states now have "apology" or "I'm sorry" statutes. Legislatures are doing a pretty good job of enacting legislation that facilitates more honest and forthright communication without the fear of resulting lawsuits. The statutes vary slightly from state to state, but all are written with the above-stated goal as their central purpose.

Continue reading "California Medical Malpractice "Apology" Statute" »

The California Medical Board has permitted a doctor to keep his license after committing medical malpractice by helping an unlicensed doctor perform illegal abortions

The doctor, who runs a cash only abortion business in Torrance, was also charged with seven other cases of incompentence and negligence.

The charges against the doctor arise from actions of helping another doctor perform illegal abortions.

The California Medical Board, headquartered in Sacramento, has allowed the doctor to keep his license, though several probationary actions are required for him to continue practicing, including taking an education course, a medical records class, and prohibited supervision of physicians assistants.

If you have any questions regarding medical malpractice, please contact the law offices of Sacramento personal injury lawyer Moseley Collins on the web or by calling 916-444-4444.

In Fair Oaks, a suburb of Sacramento, a cardiologist is being accused of negligence by the Medical Board of California.

The board, in an accusation filed by the state attorney general's office, is asking for dicipline that could end in the doctors license being suspended or even revoked in a case of alleged medical malpractice

The board alleges that the doctor misinterpreted a test, mishandled a follow-up exam, and failed to recognize that a patient needed timely care.

In June 2007, according to the boards accusation, the doctor performed an aortogram on the patient to check for blood flow in the aorta. The doctor did not document an abnormality that was detected on the test, which showed that there was little to no bloodflow to a region in the heart.

The day after, the doctor saw the patient again after a reported leg pain, but failed to perform a complete examination and did not recognize that the patient needed additional care quickly, the accusation said.

Three days later, another doctor saw the same patient and sent them to the emergency room, where it was determined they would need surgery.

If you have any questions concerning medical malpractice, please contact the law offices of Sacramento personal injury attorney Moseley Collins on the web or at 916-444-4444.

Source: http://sacbee.com/

“Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury to the patient.” That is one definition (Wikipedia) of medical malpractice.

Here at the Law Office of Moseley Collins (Sacramento, California), we see and understand the personal suffering caused by medical malpractice.

We see the results of medical malpractice in the victims of medical malpractice. We see the victim’s suffering and the often overlooked victim’s family and the suffering of the victims loved ones.

When it comes to medicine, there are no guarantees but people place their trust and faith in the hands of their doctor. They are not asking for guarantees but they are asking for their doctor to do the best job possible and to use tried and true techniques. They are asking their doctor to treat them just as carefully as they (the doctor) themselves would like to be treated.

And thankfully, most of the time, doctors do treat their patients with the same care as they would expect to be treated themselves. But this does not always happen. And when it does not happen, the results are tragic.

Mistakes do happen and sometimes they could have and should have been prevented.

Some doctors are overworked, or unskilled, or have insufficient resources.

Sometimes there is just a blatant disregard for observing and following proven procedures. Shortcuts, rushed schedules, distractions or maybe just plain lack of skills also play a role in causing medical malpractice accidents.

At the Law Office of Moseley Collins, located in Sacramento, California, and serving all of Northern California, we know what the definition of medical malpractice means to the wronged patient. We know our way through the confusing world of medical terminology, medical charges and medical malpractice.

We believe that you have the right to an experienced attorney who will fight for the compensation you deserve. Call us at 916.444.4444 if we can be of help to you. There is never a fee until we win your case.

On Tuesday, Stephen Sheldon received notification that his medical license was suspended by the Nevada Board of Medical Examiners. Dr. Sheldon practiced medicine in Grass Valley, a small community east of Sacramento, California.

He was convicted on fraud charges last month. He had been accused of endangering patients by injecting them with fake Botox.

Sheldon has been the target of several Healthline 3 investigative stories. His wife, who handled business affairs, was also convicted. For more information: see NEWS 3 KVBC news article (http://www.kvbc.com/Global/story.asp?S=9445604&nav=15MUCBSd), December 2, 2008.

Yes, unfortunately medical malpractice does happen and it is not always happening to the other guy. In this case, it seems that money took priority over health.

Here’s another example: “She put these women’s lives in serious danger”. Jury selection is set in Los Angeles for a woman accused of posing as a doctor and performing illegal abortions (more charges are also pending in San Diego).

Jury selection is scheduled to begin in Los Angeles on December 1 in the trial of Bertha Bugarin, longtime operator of Clinica Medica para la Mujer de Hoy, a chain of Southern California abortion clinics with the same or a similar name that for years targeted poor Hispanic women in Los Angeles, Orange and San Diego counties. Bugarin is charged with 18 felony counts of performing abortions without a medical license. If convicted, she faces more than 15 years in prison.

Continue reading "Medical Malpractice in Grass Valley: It Happens" »