(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.)
Assuming For Argument’s Sake That This Court Finds That Dr. Lee Has Met His Initial Burden of Proof, Plaintiff Has Demonstrated The Existence of A Triable Issue of Material Fact as to Negligence and Causation.
As set forth above, only if defendant is successful in meeting his burden of proof does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, citing Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) The evidence of the party opposing the motion must be liberally construed. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal. App.4th 184, 189.)
Assuming for the sake of argument that Dr. Lee did meet this burden, the burden of proof then shifts to plaintiff, who has made a prima facie showing of the existence of a triable issue of material fact through the declaration of his expert, vascular surgeon Keith Chin, M.D. Thus, a triable issue of fact exists as to whether or not Dr. Lee’s conduct fell below the standard of care and whether that conduct was a substantial factor in causing plaintiff’s njuries.
There Is a Triable Issue of Fact as to Whether Dr. Lee’s Conduct Fell Below the Standard of Care.
As a Board Certified General Surgeon with a fellowship in vascular surgery, Dr. Chin is intimately familiar with the anatomy of the abdominal and thoracic cavities, including the management of diseases and trauma affecting all parts of the vascular system, arteries and veins, except that of the heart and brain, and the standard of care required by a vascular surgeon. Dr. Chin’s opinions are substantiated by the evidence, including plaintiffs medical records and the deposition testimony of Dr. Green, Dr. Smith, Dr. Lee, Dr. Stuart, and Dr. Stein.
Based upon his review of the evidence, his education and training, it is Dr. Chin’s opinion to a reasonable degree of medical certainty that, assuming Dr. Lee caused the injury to the abdominal aorta and left iliac vein when he placed the arterial and femoral lines in plaintiffs groin on June 24th, he was below the standard of care. Alternatively, Dr. Lee’s failure to identify the lacerations to the abdominal aortic bifurcation and the anterior wall of the left common iliac vein was below the standard of care.
Assuming these injuries existed on the 24th, (neither Dr. Lee nor Dr. White offer an alternative explanation), Dr. Lee breached the duty of care by failing to locate, identify and repair the source of the hemorrhage. Dr. Lee, himself, admitted in deposition that it is the custom and practice of the vascular surgeon after repairing one laceration to continue to look for other sites of bleeding, and not to close until finding all sites of bleeding. Accordingly, either Dr. Lee did not look, and was negligent for his failure to investigate, find and repair the injury:o the aortic bifurcation or, alternatively, the laceration at the aortic bifurcation occurred at a subsequent procedure or surgery. At a minimum, Plaintiff has created issues of material fact. (See Part 9 of 11.)
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