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.
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, UC Davis Medical Center, Mercy, or Sutter.
(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 JURY WAS CORRECT IN FINDING THAT DR. LEE WAS NOT NEGLIGENT IN HIS CARE AND TREATMENT OF ALBERT GREENE
Much of the testimony on both sides has been discussed in prior filings. Below, Defendant will address only the new matter raised in Plaintiffs’ moving papers.
Plaintiffs claim that Dr. Smith testified that an internist should at least know that a dens fracture presents a risk of spinal cord damage (Plaintiffs’ brief, page 9, lines 5-6), but the cited testimony by Dr. Smith refers to a displaced fracture causing spinal compression – – not the situation Dr. Lee was presented with. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Further, Plaintiffs ignore the extensive testimony of Dr. Smith about this same issue, later in Plaintiffs’ counsel’s cross-examination of Dr. Smith:
Q. [by Mr. Howard] So what does the standard of care call for treating Mr. Greene at this stage of the game where we have Exhibit 3, where we still see a suspected chronic fracture of the dens and an incomplete opening of the C1? What does the standard of care require regarding treatment of the neck at that stage?
A. I think most internists would be satisfied and reassured that the emergency room physician has confirmed – conferred with the radiologists and that they both felt there was no acute problem here with the neck and that the neck has been cleared.
Q. So in your definition of standard of care, doing what most internists would do, keeping in mind the health and safety of the patient, even though the latest report says chronic fracture of the dens and incomplete opening of the C1, you agree it’s within the standard of care to now turn away from the neck because it says no acute fracture seen?
A. I’m turning away from the neck because I know that two specialists who deal with this problem and are more exert [sic] than I am, namely the radiologist and the emergency room physician, feel that the neck has been cleared.
Plaintiffs have failed to timely file and serve requisite documentation to support either of their motions.
Additionally, as mentioned in Defendant’s prior Opposition and again here, the law in California is quite clear that Dr. Lee had no duty to disclose to Mr. Greene the possibility or availability of treatments or consultations that he would not recommend. From the testimony by Dr. Lee, it is clear that he did not recommend surgery on the neck or any referral to a neurosurgeon, or any physical therapy to the neck, and thus any claim that he had such a duty must fail.
Finally, not only was there abundant and substantial evidence from the testimony of defendant’s expert witness, Dr. Smith, to support the verdict, but on balance, it is respectfully submitted that her qualifications, opinions, and bases for those opinions were substantially more credible than the opinions of Plaintiffs’ standard of care expert, Dr. Goldstein.
It is respectfully submitted that both of Plaintiffs’ motions should be denied, and the verdict, and judgment thereon, should stand.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.