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 personal injury lawsuit and its proceedings.)

Plaintiff’s Motion in Limine to Limit the Admissibility of Evidence That Plaintiff May be Entitled to Receive Benefits from Governmental Agencies and Programs

Plaintiff Ellen Choo herewith submits the following Memorandum of Points and Authorities regarding the Inadmissibility of Evidence that plaintiff may be entitled to receive benefits from governmental agencies and/or programs.

In summary, it is anticipated that the defendant physician, in an effort to offset his obligation for the damages wrought upon the minor plaintiff, will attempt to introduce evidence that the minor plaintiff may be entitled to receive services, such as therapy or vocational training, from certain governmental agencies and/or programs.

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

Plaintiff opposes the admissibility of such evidence for the following reasons:

(1) The collateral source rule precludes such evidence;

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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 23, 2008, a CT study revealed bleeding around the stab wound site. Mr. White was taken back to surgery for ligation and cauterization of the bleeding area. There were no complications. Mr. White was extubated on December 23, 2008, without difficulty. On December 23, 2008, Mr. White’s Foley catheter was patent with almost colorless urine. His urine output total for December 23, 2008, was approximately 1771 cc. Mr. White’s Foley catheter was patent and draining pale urine. His urine output for December 24, 2008, was approximately 1500 cc.

On December 25, 2008, Mr. White was not aware of his surroundings and having hallucinations due to alcohol withdrawal. He was maintained on ETOH withdrawal protocol. Mr. White had an elevated temperature of 102. Pan-cultures including blood, urine, and sputum were obtained in order to determine the source of the temperature elevation. On this same date, the Foley catheter was draining clear amber urine with a total urine output of approximately 1880 cc.

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.)

Memorandum of Points and Authorities in Support of Defendant CMC’s Motion for Summary Judgment
INTRODUCTION

This is an alleged wrongful death case surrounding the care and treatment rendered by defendant to plaintiff’s decedent David White, plaintiff asserts defendant was negligent in the post surgical management of plaintiff’s decedent leading to death caused by a urethra infection due to a misplaced Foley catheter. Moving defendant, The CMC, submits it motion for summary judgment supported by defendant’s expert, surgeon Dr James Chin, to the Court seeking judgment in its favor and against plaintiff on the grounds that there is no triable issue of material fact in that moving defendant did not breach the standard of care and did not cause or contribute to David White’s death.

STATEMENT OF FACTS

On December 22, 2008, decedent David White, age 44 years, was brought by ambulance to County Medical Center with a stab wound to the left lateral neck. He was under the influence of alcohol. Mr. White was evaluated by trauma surgeon Dr. Daniel Black. Mr. White’s vital signs appeared stable with the pressure of 132/82, pulse rate of 110, respiratory rate of 24 with pulse ox of 100%. His blood alcohol level was 0.438, well above the legal limits.

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

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also 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.)

UNIVERSAL’S NEGLIGENCE WAS A DIRECT CAUSE OF DECEDENT’S DEATH

And last, Universal next asserts that its conduct was not a cause of Decedent’s death according to the declaration of its expert. However, Universal’s expert does provide any reasoning for this opinion. The declaration instead simply states, without explanation, that nothing the nurses did or failed to do was a substantial factor in the death of decedent. Klein Decl. 10:18-20. It is also noteworthy that this statement makes no mention of the wrongdoing of Universal’s CEO, who is the focus of Plaintiffs’ claim against Universal.

In any even, the opinion of Universal’s expert on causation is contradicted by that of Plaintiffs’ expert, Dr. White. As he explains, Universal’s breaches of the standard of care resulted in unnecessary delay in getting Decedent to a medical center where he could be properly treated. This delay proved fatal. Had it complied with the standard of care, in Dr. White’s opinion Decedent would not have died.

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 action and its proceedings.)

Steven White, M.D.

Defendants anticipate that plaintiffs will attempt to introduce similar testimony from Dr. Steven White, who is an internist/infectious diseases physician, not an emergency physician. At deposition, Dr. White opined that Dr. Gold did not evaluate the patient quickly enough upon his arrival at Universal and that this delay was below the standard of care. However, Dr. White admitted that he has never worked as an emergency medicine physician at any facility during his career. (Deposition of Dr. White) Thus, Dr. White’s opinion testimony relative to the standard of care for an emergency room physician should be excluded at trial pursuant to Section 1799.110.

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

EVIDENCE CODE SECTION 352 ALLOWS THE COURT TO PRECLUDE PLAINTIFFS FROM INTRODUCING THIS EVIDENCE AT TRIAL
Evidence Code Section 352 provides that evidence may be excluded if its probative value is substantially outweighed by the probability that its admission will … create substantial danger of undue prejudice … or of misleading the jury. Here, it cannot be disputed that any reference to the phantom prior incidents will unduly prejudice the defendants.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also 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.)

UNIVERSAL WAS NEGLIGENT

Turning to the merits of the first cause of action, Universal asserts that it complied with the standard of care in its care and treatment of Decedent, and submits a declaration from its expect to that effect. In response, Plaintiffs submit a declaration from their expert, Steven White, M.D., in which he disagrees with Universal’s expert and opines that the standard of care was not met. Specifically, according to Dr. White, Universal Hospital fell below the standard of care on both August 10 and August 11, 2008.

In his declaration, Dr. White notes the testimony of Dr. Lee (which Universal’s expert ignores entirely) indicating that he spoke with the hospital CEO, Paul Smith, on August 10, 2008, informing him that Decedent had necrotizing fasciitis and recommending his urgent transfer to a major medial center in order to receive appropriate care, and that in response Dr. Lee was told to “mind his own business.” These facts are ignored in the declaration of Universal’s expert. According to Dr. White, this conduct on the part of the hospital CEO is below the standard of care. The standard of care requires the hospital to act reasonably in protecting the health and safety of its patients. This standard was not met.

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 action and its proceedings.)

It is clear that all of Dr. Li’s criticism against the hospital flow from his criticism of Dr. Gold’s initial evaluation of the patient. But for Dr. Gold’s failure to promptly contact an on-call general surgeon, there would have been no delay in properly treating the patient. According to Dr. Li, had Dr. Gold made that call, a general surgeon presumably would have been able to timely evaluate the patient and perform the debridement surgery. The performance of the debridement surgery at Universal would have negated the necessity of a transfer and ambulance transport to San Diego, of which Dr. Li was also critical. (Deposition of Dr. Li) Unfortunately, none of this testimony will be admissible at trial, per Section 1799.110.

In Miranda, appellant/plaintiff retained an orthopedic surgeon who had been on-call in hospital emergency departments to testify relative to emergency room physicians standard of care issues. At deposition, the physician admitted that he was not an emergency room physician. Miranda, supra, at 907. Rather, he was an orthopedic specialist who was on-call to the emergency room to consult on and treat orthopedic injuries. Id. The trial court granted a defense in limine motion to preclude the orthopedist from testifying at trial on emergency physician standard of care issues, per Section 1799.110. The Court of Appeal agreed with the trial court’s decision, indicating that it “lacked the discretion” to allow the doctor to testify on those issues at trial. Id.

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 action and its proceedings.)

Experts who do not have substantial professional experience in the emergency department within the last five years cannot testify as to the standard of emergency care, regardless of his or her expertise. Sigala v. Goldfarb (1990) 222 Cal.App.3d 1450, 1455-56 [266 Cal.Rtpr. 96].
Section 1799.110 applies to any suit involving a claim of negligent emergency room treatment by a hospital emergency room physician whether or not a physician is named as a defendant. Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d 637,646-47 [242 Cal.Rptr. 74].

Whether a proposed expert witness satisfies the requirements of Section1799.1 10 is an appropriate subject of a motion in limine. Miranda, supra, at 899, fn. 4.

Donald Li, M.D.

Defendants anticipate that plaintiffs will seek to admit the testimony of Dr. Donald Li, their retained general surgery expert, for the purposes of establishing that the treatment and care provided by Universal’s emergency room physician, Dr. Andrew Gold, was below the standard of care. At deposition, Dr. Li testified that Dr. Gold’s alleged failure to immediately contact an on-call general surgeon upon the patient’s presentation to the emergency department was below the standard of care. (Deposition of Donald Li, M.D.)

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

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also 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.)

A plaintiff has no evidentiary burden until defendant shows either a complete defense or that an essential element of plaintiffs claim cannot be established. Until that time, defendant has not met its burden of production, and plaintiff therefore has no burden to oppose. See CCP §437c(p)(2); Binder v. Aetna Ins. Co, (1999) 75 CA4th 832, 840; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (TRG) 10:249. As the party moving for summary judgment, (the defendant) had the burden to show that it was entitled to judgment with respect to all theories of liability asserted by (the plaintiff). Lopez v. Superior Court (Friedman RPI) (1996) 45 CA4th 705, 717.

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

In a medical malpractice action, the standard of care can only be established through expert opinion testimony. Stephenson v. Kaiser Foundation Hospital (1961) 203 CA2d 631, 635. Because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of expert, 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. Johnson v. Superior Court (2006) 143 CA4th 297.

Continue Reading ›

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also 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.)

APPLICABLE LAW

In ruling on a motion for summary judgment or summary adjudication, the court must consider all of the evidence “and all of the inferences” reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party. Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 843. The courts sole function on a motion for summary judgment is issue-finding … not issue-determination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” CCP § 437c(c); see Zavala v. Arce (1997) 58 CA4th 915, 926; Binder v. Aetna Life Ins. Co. (1999) 75 CA4th 832, 839.

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

There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Aguilar v. Atlantic Richfield Co., supra, 25 C4th at 850. If there is a single such issue, the motion must be denied. Versa Technologies, Inc v. Sup.Ct. (Motsinger) (1978) 78 CA3d 237,240.

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