Personal Injury Lawyer Blog
It is 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, Sutter, or any skilled nursing facility.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)
The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) Because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts (Sinz v. Owens (1949) 33 Cal.2d 749, 753), expert testimony is required to prove or disprove that the defendant performed in accordance with the standard of care unless the negligence is obvious to a layperson. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)
However, the expert testimony must be based on such matter as may be reasonably relied upon by an expert in forming an opinion on the subject. (Ibid.) With regard to a standard of care derived from a professional practice the induction of a rule from practice necessarily requires the production of evidence of an ascertainable practice. (Wheeler v. Bd. of Forestry (1983) 144 Cal. App.3d 522, 528, fn. 5.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
FAILURE TO MEET THE PREVAILING STANDARD OF CARE IN A MEDICAL COMMUNITY IS GROUNDS FOR MALPRACTICE
As is stated in Brown v. Colm (1974), 11 Cal. 3d 639; 114 Cal. Rptr. 128, the Supreme Court held that proof of the standard of care is ordinarily provided by another physician, and if a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes to the weight of his testimony rather than its admissibility. 114. Cal. Rptr., at 130.
Brown instructs us that the standard of care in the medical community must be met by member of that community. By extension, when the standard of care is not met by a member of the medical community, a medical expert is required to demonstrate that as well.
As set forth in the attached Declaration of John Brown, M.D., the standard of care required defendant surgeons to halt the procedure when they encountered multiple episodic drops in blood pressure. Standard of care required further assessment of the situation via fluoroscopy, trans-esophogeal echo, etc.
Dr. Brown states that, more probably than not, defendant’s actions and inactions contributed to the death of decedent.
Defendant’s actions fall below the standard of care. Since there is a triable issue of material fact as to the cause of death of decedent, the Motion for Summary Judgment must fail.
THE CARE AND TREATMENT RENDERED KIM SMITH FELL BELOW THE STANDARD OF CARE AND CAUSED PLAINTIFF INJURY AND DAMAGE
As set forth above and in the attached Declarations, the care and treatment rendered to plaintiff by defendants fell below the standard of care and caused injury and damage to plaintiff.
According his Declaration, Dr. Brown reviewed the records pertaining to decedent from defendant and other treaters and his opinion is based upon his education, training and experience as well as her personal knowledge and evaluation of conduct of defendant. (See Part 7 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.