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 action and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
MEDICAL OPINION TESTIMONY OFFERED FROM ANYONE OTHER THAN PHYSICIANS AND SURGEONS WITH SUBSTANTIAL EMERGENCY DEPARTMENT EXPERIENCE IS INADMISSIBLE

In any action for damages involving a claim for negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute hospital emergency department. Health & Safety Code Section 1799.110(c).

The term “emergency medical coverage” means treatment given by those physicians who serve as dedicated medical staff of a hospital’s emergency room, or by physicians who have been specially employed or otherwise engaged by a hospital to furnish medical treatment in an emergency room as emergency room physicians. Miranda v. National Emergency Services, Inc. (1995) 35 Cal.App.4th 894, 903-04 [41 Cal.Rptr.2d 593].

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.)

Defendant University Hospital hereby moves this court in limine for an order that plaintiffs be precluded from introducing any medical opinion testimony or evidence relative to the treatment and care provided by emergency department physicians to decedent David Hall, Jr., at the Universal facility during his admission to that facility on August 11 and 12, 2008.

This motion is made on the grounds that such testimony is inadmissible per Health & Safety Code Section 1799.1 10. Moreover, these inadmissible opinion statements are highly prejudicial and should be excluded under.

This motion is based on the complete flies and records in this action, the memorandum of points and authorities accompanying this motion, the attached declarations, the exhibits attached hereto, and any oral and other documentary evidence allowed at the time of the hearing of this motion. (See Part 2 of 5.)

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.)

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant Universal Hospitals’ Motion for Summary Adjudication
INTRODUCTION

Defendant Universal Hospitals, Inc., (“Universal”), brings this motion for summary adjudication of the First Cause of Action in Plaintiffs’ Third Amended Complaint for negligence. It asserts three grounds: that Decedent David Hall, Jr.’s statutory heirs lack standing, that there was no negligence, and that Universal’s conduct was not a cause of Decedent’s death. The motion includes a voluminous recitation of certain medical records taken virtually verbatim from the recitation of the records in its expert’s declaration, none of which are material facts for summary judgment purposes. Tellingly, the motion ignores entirely the facts upon which liability is sought: the conduct of Universal’s Chief Executive Officer in initially refusing to transfer Decedent to another hospital where he could receive proper care for his life-threatening condition, and subsequently authorizing the hospital staff to lie about Decedent’s condition in order to get him transferred. This is the conduct that is the focus of the declaration Plaintiffs submit of their expert in opposition to the motion.

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

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

Civil Code Section 3333.1 Permits Defendants To Introduce Evidence Of Collateral Source Benefits.

Subsequent to the alleged malpractice by defendants, plaintiff received insurance benefits. Under Civil Code section 3333.1, defendants can introduce evidence of these benefits at trial. Subdivision (a) of section 3333.1 provides, in pertinent part:

“In the event the defendant so elects, in an action for personal injury against a health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to 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 … ”

Section 3333.1, subdivision (a) suspends the common law “collateral source rule,” under which a defendant is ordinarily precluded from introducing evidence of compensation and benefits that plaintiff receives from other sources, such as medical and disability insurance. (See, e.g., Arrambula v. Wells (1999) 72 Cal.App.4th 1006, 1009; Rotolo Chevrolet v. Superior Court (2003) 105 Cal.App.4th 242.)

For more information you are welcome to contact San Francisco 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 case and its proceedings.)

Dr. Wagner opines that had Dr. Hall properly aligned the tibial component to the tibia bone during the November 14, 2005 surgery, Ms. White’s femur and tibia would more likely than not have been properly aligned with the patella so that the patella could slide properly in the trochlea groove and not mal-track or sublux. Proper alignment of all of the components would not have caused her the continued severe pain in her left knee, to a reasonable degree of medical probability, as demonstrated by her recovery after the November 30, 2005 surgery by Dr. Gregory Brown.

Dr. Wagner testifies that because Dr. Brown properly aligned each of the components of the total knee replacement, and thereafter, Ms. White did well, had less knee pain, and her patella was tracking well with minimal lateral subluxation. It is Dr. Wagner’s expert opinion that had Dr. Hall properly aligned the tibial component during the November 30, 2005, Ms. White would more likely than not have experienced the severe pain in her left knee and subluxation and mal-tracking of her left patella and would not have needed the three subsequent surgeries performed on her left knee on January 27, 2005, May 28, 2005, and November 30, 2005.

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

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

ALLEGATIONS

Plaintiff contends that Dr. Hall’s surgeries and follow-up care fell below the standard of care and were the cause of her injuries and that she suffered pain as a result of two unnecessary surgeries performed by Dr. Hall on January 27 and May 28, 2008. However, plaintiff herself has stated that after the November 2005 total left knee replacement by Dr. Jones, she has made a complete recovery and healed well. Presently, she experiences very little pain other than pain she characterizes as consistent with her age.

As stated above, the defendants have designated an expert who will testify on the issue of causation. These experts will opine that plaintiff has not been injured by any action, or claimed inaction, by the defendants.

The Defendants’ Alleged Medical Negligence Was Not The Proximate Cause Of The Plaintiffs Injuries.

If a result to a patient would have occurred in the ordinary course of events anyway and independently of anything done or not done by a physician, the result cannot be said to have been caused by the physician. (Huffman v. Lindquist (1951) 37 Cal.2d 465, 479; Deckard v. Sorenson (1960) 177 Cal.App.2d 305, 308; Bennett v. Los Angeles Tumor Institute (1951) 102 Cal.App.2d 293, 296 and Frantz v. San Luis Medical Center, supra.

For more information you are welcome to contact San Francisco 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 case and its proceedings.)

Expert Testimony Establishes That Defendants reaches of the Standard of Care Contributed to Ms. White’s Injuries To a Reasonable Degree of Medical Probability

Expert testimony on the issue of causation is conclusive in a medical malpractice action and plaintiff must prove that the alleged breach of duty of the defendant was a substantial factor in causing their injuries. Bromme v. Pavitt, (1992) 5 Cal.App.4th 1487, 1498; Dumas v. Cooney, (1991) 235 Cal.App.3d 1593, 1603. Here, the testimony of Dr. Robert Lee establishes triable issues of fact that moving defendant’s breaches of the standard of care substantially contributed to Ms. White’s injuries, to a reasonable degree of medical probability.

It is Dr. Wagner’s expert opinion that Dr. Hall’s breach in the standard of care in his performance of the November 14, 2005 left total knee arthroplasty on Ms. White, to a reasonable degree of medical certainty caused Ms. White injuries in causing her additional and unnecessary pain and suffering and three subsequent surgeries on her left knee. Dr. Wagner explains that the three bones that come together at the knee joint are the patella (kneecap), the tibia (shin bone), and the femur (thigh bone).

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 case and its proceedings.)

Plaintiff sets forth triable issues of material fact demonstrating that moving defendant breached the standard of care in their care and treatment of Sandy White through the expert declaration of Board Certified orthopedic surgeon, Robert Lee, M.D. As more fully set forth in Dr. Wagner’s declaration attached hereto, he has reviewed the relevant records in this matter and is qualified to offer his expert opinions with regard to Dr. Hall’s negligence.

Based on his education, training, experience, and review of the records, Dr. Wagner opines that Dr. Hall breached the standard of care as follows: (a) Negligently fitting and placing the tibial component of the total knee replacement during the November 30, 2004 surgery, and (b) negligently failing to recognize and revise the components of the total knee replacements during Dr. Hall’s subsequent surgeries on Ms. White’s left knee on January 27, 2005 and May 28, 2005. The total knee replacement surgery of November 30, 2005, involved the placing of three components in Ms. White’s left knee: a patellar component, a tibial component, and a femoral component.

It is Dr. Wagner’s expert opinion that Dr. Hall breached the standard of care in failing to properly align the tibial component with the bone. This opinion is based on Dr. Gregory Brown’s November 30, 2005 Operative Report, wherein Dr. Brown noted that the tibial component of Ms. White’s left total knee replacement was internally rotated approximately 20 degrees. It is Dr. Wagner’s expert opinion, based on the standard of care for orthopedic surgeons as it existed in November of 2005, that the standard of care required that there be no more than a 10-degree mis-alignment of the tibial component and that anything above a 10-degree mis-alignment of the tibial component is a breach of the 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

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

On November 2, 2008, plaintiff returned to Dr. Lee for a second opinion, as she was experiencing burning pain radiating down the lateral aspect of the lower leg from the knee to her ankle. Dr.Lee examined plaintiff and discovered full knee extension and flexion to 115 degrees with the patella tracking laterally. Dr. Lee told her she needed more time to heal after plaintiff stated she wanted to review the x-rays ordered by Dr. Hall on October 6th. Plaintiff requested a third opinion and Dr .Lee offered to refer her to Dr. Michael Davis, a physician not affiliated with Universal Medical Clinic.

Dr. Davis examined plaintiff on December 8, 2008. He noted a problem with lateral tracking of the patella. Plaintiff complained of pain in the anterolateral and lateral aspect of the left knee and lateral aspect of the left leg. He recommended studies including a standing long leg alignment from hip to ankle of both legs, merchant views of both knees, and possibly a CT scan of both hip and distal femur. It should be noted that an x-ray taken on January 1, 2005 shows the patella sitting fine and in good position.

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

Continue Reading ›

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 case and its proceedings.)

Expert Testimony Establishes Triable Issues of Material Fact Demonstrating Defendant’s Negligence In the Care and Treatment of Plaintiff

It is proper for the Court to deny defendants’ motion as plaintiffs present triable issues of fact through expert testimony that moving defendant breached the applicable standard of care in the care and treatment of Sandy White and that defendant’s breaches contributed to Ms. White’s injuries, to a reasonable degree of medical probability.

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

Expert Testimony Establishes That Defendant Breached the Applicable Standard of Care
The inherent nature of a medical negligence action, along with the applicable standard of care and causation, is a subject matter that is beyond the competency of a layman and, therefore, may be proved only by expert testimony. Landeros v. Flood (1976) 17 Cal.App.3d 399, 131 Cal.Rptr. 69. When the matter in issue is within the knowledge of experts only and not within common knowledge, expert evidence is conclusive and cannot be disregarded. Huber, Hunt, Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 136 Cal.Rptr. 603.

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