Articles Posted in Medical Malpractice

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, Methodist, 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 lawsuit and its proceedings.)

The physicians order for placement of a Foley catheter before surgery and after surgery complied with the standard of care as it allowed the physicians to monitor fluid intake and output in a patient who was undergoing alcohol withdrawal. Typically, Foley catheters (tubing inserted through the urinary opening of the penis with urine collected into a collection apparatus) are not inserted by surgeons unless there is difficulty with placement. Surgeons do not monitor the status of Foley catheters unless notified of problems. There was no documentation of any difficulty with placement or monitoring of the Foley catheters used in this case until January 2, 2009. Up until January 2, 2009, the facts show that the Foley catheter continued to function properly noting normal looking urine and normal amounts of urine until the green discharge from the penis was noted on January 2, 2009.

When the nurses noted green discharge the physician appropriately responded by placing a suprapubic catheter inserted through the pelvic area to allow drainage of the urine. Treatment with multiple antibiotics including Vancomycin, Zosyn, Levaquin, and Fluconazole were started appropriately in an effort to treat the infection.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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, Methodist, or Sutter.

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

PLAINTIFF HAS PLEADED EACH AND EVERY ELEMENT OF A CAUSE OF ACTION
FOR WILLFUL MISCONDUCT

Defendants Stanley Black, M.D. and ABC Medical Group next demur to Plaintiff’s third cause of action, for Willful Misconduct.

Defendants’ demurrer is replete with colloquy about how plaintiff has failed to plead any facts demonstrating that defendants’ conduct rose above the level of mere negligence. Defendants Black and ABC Medical Group have offered no judicial authority as to just why plaintiff’s pleaded claim for willful misconduct fails to meet the requirements of that well accepted tort.

The elements of willful misconduct are as follows:

1. Actual or constructive knowledge of the peril to be apprehended;2. Actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and3. Conscious failure to avoid the peril.(Witkin, 6 Summary of California Law, 9th edition, Torts, section 761)

This standard was tested in New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681. New involved two motorcyclists who sued a landowner to recover for injuries sustained while they were riding their motorcycles on defendant’s property.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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, Methodist, 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 lawsuit and its proceedings.)

THE CARE AND TREATMENT RENDERED BY DEFENDANT CMC AND DR. DANIEL BLACK COMPLIED WITH THE APPLICABLE STANDARD OF CARE

Plaintiff’s cause of action sounds in professional negligence based upon allegations of medical malpractice. For a prima facie case of medical malpractice, the plaintiff must establish duty, standard of care, breach of that standard, causation, and damages. Bucquet v. Livingston (1976) 57 Cal.App.3d 914, 920-921. As a general rule, in actions based upon medical malpractice, the applicable standard of care is a matter peculiarly within the knowledge of experts … It presents the basic issue in a malpractice action and can only be proven by their testimony, barring the extremely rare case where the required conduct involved obvious facts within the common knowledge of the layman. Landeros v. Flood (1976) 17 Cal.3d 399, 410.

In medical malpractice actions the standard of care and breach of that standard must be established by the testimony of medical experts. Lawless v. Calaway (1944) 24 Cal.2d 81, 86; Simons v. West Covina Medical Clinic *1989) 212 Cal.App.3d 696, 702. When on summary judgment, a defendant submits the declaration of a medical expert establishing that his care and treatment complied with applicable standards of care, he is entitled to summary judgment absent conflicting expert testimony. Monro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985. In the present case, the care and treatment of plaintiff is not an issue within the knowledge of layperson. Expert testimony is therefore necessary to establish the applicable standard of care.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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, Methodist, or Sutter.

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

CIVIL CODE SECTION 3333.1 DOES NOT PERMIT THE INTRODUCTION OF THE DEFENDANTS’ PROFFERED EVIDENCE

Presumably, the defendant will assert that Civil Code Section 3333.1 permits the introduction of the information regarding future receipt of services from government agencies. Defendant’s assertion is incorrect.

Civil Code Section 3333.1 provides in pertinent part:

“In … an action for [medical] negligence, [the defendant] may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any state or federal income disability or worker’s compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental or other health care services.”

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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, Methodist, or Sutter.

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

LEGAL ARGUMENT
IT IS WELL SETTLED THAT INCONSISTENT PLEADINGS ARE PERMITTED

Defendants’ Stanley Black, M.D., and ABC Medical Group’s demurrer to Plaintiffs Complaint is based (initially) on the grounds that Plaintiffs first cause of action, for medical negligence, is duplicative of Plaintiff’s second cause of action for Wrongful Birth.

It is well established that a plaintiff is entitled to plead inconsistent causes of action. Rader Co. v. Stone (1986) 178 Cal.App.3d 10.

Rader Co., supra, involved an appeal from an Order of dismissal following the sustaining of demurrers, without leave to amend.

In holding that inconsistent causes of action are appropriate, the Rader Co., supra, court, stated, at p.29, of 178 Cal.App.3d, as follows:

Moreover, Rader is not precluded by law from alleging in one cause of action the breach of a contract and an inconsistent theory of recovery in another cause of action. To the extent Rader’s allegation in one cause of action of a fully executed contract with Stone is at odds with an allegation in a separate cause of action that PSR interfered in Rader’s advantageous relationship with Stone, such inconsistency is not fatal to Rader’s claims at the pleading stage, as “a plaintiff is permitted to plead inconsistent or …, alternative counts.” (Rader Co., supra at p.29, Emphasis Added, citing Skelly v. Richman (1970) 10 Cal.App.3d 844)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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, Methodist, 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 lawsuit and its proceedings.)

The summary judgment procedure protects defendants from spurious or meritless complaints and expedites the administration of justice by eliminating unnecessary trials. McCreery v. Eli Lilly and Company (1978) 87 Cal. App. 3d 77, 81; DeLeon v. Commercial Manufacturing and Supply Company (1983) 148 Cal.App. 3d 336, 342.

To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the “action has no merit or that there is no defense” thereto. Code of Civil Procedure section 437 (c) (a). A defendant moving for summary judgment meets this burden by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to the action. Code of Civil Procedure section 437 c (o) (2); Addy v. Bliss & Glennon (1996) 44 Cal. App. 4th, 205. Once the defendant makes his showing, the burden shifts to the plaintiff to show a triable issue of material fact exists as to that cause of action or defense.

An expert declaration must demonstrate the basis for the opinion; a conclusory statement is insufficient to create a triable issue of fact. Kelley v. Trunk (1998) 66 Cal.4th 519, 524-525, 78 Cal.Rptr.2d 122.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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, Methodist, 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 lawsuit and its proceedings.)

LEGAL ARGUMENT
SUMMARY JUDGMENT IS PROPER WHEN THERE IS NO TRIABLE ISSUE OF MATERIAL FACT

It is well established that the purpose of the summary judgment procedure is to “penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues.” Vanderbilt Growth Fund, Inc. v. Superior Court (1980) 105 Cal.App.3d 628, 637. Therefore, it is proper to grant a motion for summary judgment if there is no triable issue as to any material fact or if the action has no merit.

California Code of Civil Procedure § 437c provides, in pertinent part, as follows:

(a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding …(c) The motion for summary judgment shall be granted if all papers submitted show 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 … (o) A cause of action has no merit if either of the following exists:(1) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded … (p) For purposes of motions for summary judgment and summary adjudication …

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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, Methodist, or Sutter.

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

MEMORANDUM OF POINTS AND AUTHORITIES
SUMMARY OF ISSUE PRESENTED

In this matter, it is likely that the defendant will attempt to offset his obligation for the minor plaintiff’s damages, specifically the need for future medical and other services, by introducing evidence which provides that some future services or benefits may be available to plaintiff from governmental agencies and programs.

Plaintiff objects to the introduction of such evidence on several grounds:

(1) collateral source precludes such evidence;
(2) Civil Code Section 3333.1., which abrogates only part of the collateral source rule in medical negligence actions, does not permit the introduction of such evidence, and

(3) there is no certainty that the minor plaintiff will actually be able to receive, now or in the near or distant future, any such benefits in these troubling economic times with ever-increasing public budget cuts.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

THE COLLATERAL SOURCE RULE PRECLUDES THE INTRODUCTION OF DEFENDANT’S SPECULATIVE EVIDENCE THAT THE MINOR CHILD MAY, IN THE FUTURE, BE ENTITLED TO RECEIVE SOME BENEFITS OR SERVICES FROM THE GOVERNMENT

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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, Methodist, or Sutter.

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

Plaintiff, by counsel, serves and files this Memorandum of Points and Authorities in Opposition to Defendants Stanley Black, M.D. and ABC Medical Group’s Demurrer to, and Motion to Strike portions of Plaintiffs Complaint.

POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS STANLEY BLACK, M.D, AND ABC MEDICAL GROUP’S DEMURRER TO AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
INTRODUCTORY STATEMENT

In response to Plaintiff’s Complaint, defendants Stanley Black, M.D., and ABC Medical Group have filed a demurrer to, and Motion to Strike portions of, Plaintiff’s Complaint.

Defendants Black and ABC Medical Group argue that Plaintiff’s First Cause of Action, for medical negligence, on the grounds that it duplicates the Second Cause of Action, for Wrongful Birth.

As will be seen from the following Points and Authorities, inconsistent pleadings have long been permitted, and therefore defendants Black and ABC Medical Group’s demurrer, upon grounds of inconsistency, is without merit.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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, Methodist, 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 lawsuit and its proceedings.)

On December 28, 2008, Mr. White continued to be severely agitated and hallucinating. He required medications such as Ativan, Haldol, and Versed to control his alcohol withdrawal symptoms. He was restrained and a sitter was assigned to sit at his bedside to prevent him from climbing out of bed and pulling at his tubing. A Foley catheter was reinserted per physician’s order as Mr. White continued to pull the condom catheter out. The Foley catheter was draining well after placement. Mr. White white blood cell count on this date was 7000, which is within normal range.

On December 29, 2008, Mr. White continued to hallucinate and tried to get out of bed. The Foley catheter on this date showed it was patent and draining clear yellow urine. Mr. White white blood cell count was 8100, within normal range. On December 30, 2008, the Foley catheter was draining clear yellow urine. The urine out put on this date was 1300 cc. Mr. White was still agitated in spite of being medicated with Ativan and Haldol. His white blood cell count was 13,200.

On December 31, 2008, the Foley catheter was draining clear yellow urine. The urine output on this date was 925 cc. On January 1, 2009, Mr. White’s temperature was noted to be 103.2. His white blood cell count was elevated above normal at 18,500. Dr. Nguyen performed an aspiration of a hematoma on Mr. White’s neck to try to decipher the source of infection. This area was ruled out as a source of the infection.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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