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, 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. Black’s Cover-Up
From just about the moment the colon was perforated, Dr. Black, and perhaps his staff, moved into cover-up mode. Dr. Black filed two separate reports for the endoscopy of Ms. Hill, one saying everything went smoothly, and then one admitting the problems that arose.

Although Ms. Hill exhibited no pain in the days leading up to the procedure, there were improbable claims that in the endoscopy recovery area, while Ms. Hill was writhing in pain and still heavily sedated, she supposedly entered into a conversation to say she had abdominal pain three days earlier.

Dr. Black called Ms Hill’s daughter, leaving a voice mail telling her to come right down and escort her mother to the hospital, and he also made sure to leave on the voice message that her perforation occurred three to four days earlier. That level of specificity seems far too convenient, and, therefore, appears well-planned.

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor 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.)

THE COURT’S POWER

California Code of Civil Procedure Section 437c gives this court the power to grant this motion upon showing that there are no triable issues of material fact.

The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107. It is pointless to declare in the abstract that summary judgment is a disfavored remedy. Reader’s Digest Association v. Superior Court (1984) 37 Cal.3d 244, 252. On summary judgment, the moving party’s burden is more properly one of persuasion rather than of proof, since he must persuade the court there is no material fact for a reasonable trier of fact to find, and not prove any such fact to the satisfaction of the court itself as if it were sitting as the trier of fact. Molko, supra at 372-374.

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

California’s highest court clarified the law that courts must apply in ruling on motions for summary judgment, bringing this state’s law closer to its federal counterpart in order to liberalize the granting of such motions. Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855, 859 (emphasis added). The Supreme Court made clear that a defendant moving for summary judgment is no longer required to conclusively negate an element of the plaintiffs cause of action. Id. at p. 864. All the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action. Id. The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. Id. at p. 865.

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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, 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.)

THE CARE AND TREATMENT RENDERED BY MOVING DEFENDANT DID NOT PROXIMATELY CAUSE OR CONTRIBUTE TO ANY DAMAGES ALLEGED BY PLAINTIFF

Dr. Lee has also concluded that none of Stefan Black, M.D.’s actions or omissions during his involvement in the care and treatment rendered to Plaintiff in any way caused or contributed to any injuries or damages claimed by Plaintiff. Consequently, there is no basis for liability against Stefan Black, M.D.

In order to prevail on a cause of action for medical malpractice. Plaintiffs must establish

(1) The duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise, (2) a breach of duty, (3) a proximate casual connection between the negligent conduct and the resulting injury, and (4) actual loss or damage resulting from the professional’s negligence. Hanson v. Grode, (1999) 76 Cal.App.4th 601, 606.

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

In Mitchell v. Gonzales (1991) 54 Cal.3d 1041, the Court stated that legal causation should be based upon whether defendant’s conduct was a “substantial factor” in bunging about the plaintiff’s injuries Mitchell. 54 Cal.3d at 1052 – 1053.

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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, 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.)

Issues before the Court for Trial
Informed Consent

Dr. Black had a duty to inform his patient of the risks associated with the procedure to be performed. He breached that duty by failing to properly provide that information. Instead, he relied upon a consent form which, in fact, did not detail any of the risks other than to simply state that risks do exist.

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

Dr. Black suffers from a nervous condition that causes his hands to tremble when he is stressed. He failed to disclose his condition to Ms. Hill. During the endoscopy he perforated approximately 60% of the circumference of the colon. He claims the colon was perforated 3-4 days earlier from some unknown cause. This most likely occurred from his handling of the colonoscope itself, perhaps mishandled by trembling hands.

For failure to disclose risk of perforation and failure to disclose his nervous disorder, the consent provided by Ms. Hill was not informed consent. As such, Dr. Black lacked consent for the procedure that would eventually send Ms. Hill into excruciating pain and land her in the Intensive Care Unit at Universal Hospital. Performing a medical procedure in the absence of informed consent is a battery.

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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, 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.)

Facts

On March 23, 2007, defendant Stefan Black, M.D., performed a colonoscopy on Ms. Hill, who was then 76 years old. He advised her that the procedure carries a risk of bleeding, but Dr. Black admits that be failed to warn her that perforation of the colon is a risk of the procedure.Ms. Hill did in fact suffer a perforation, with complications causing subcutaneous emphysema and requiring a colostomy. There were three hospital stays and two surgeries as a result. There is a factual dispute as to whether Dr. Black caused the perforation on the colon perforated ,sua sponte, three to four days earlier.

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

However, there is no dispute that Dr. Black knew of the risk that this injury could occur and that he failed to provide warning of such risk when obtaining consent for the procedure.

Dr. Black filed two separate reports detailing Ms. Hill’s colonoscopy that day. These reports directly conflict one another. It appears that the incorrect report was the one provided to the surgeon who eventually operated on Ms. Hill later that day.

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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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor 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.)

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

PLAINTIFF CANNOT CAUSALLY RELATE DEFENDANT’S CONDUCT TO ANY
PURPORTED DAMAGES OR INJURIES

A medical malpractice plaintiff must show that defendant caused his/her injury. Causation provides the essential link between the negligent act and the damage suffered by the party seeking recovery. The Court of Appeal has held that “a plaintiff, in order to establish liability, must prove more than abstract negligence unconnected to the injury.” Noble v. Los Angeles Dodgers (1955) 168 Cal.App.3d 912, 916. It is plaintiff’s burden to plead and prove the element of causation to support his claim for damages. In Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, the Court observed:

“The law is well settled in a personal injury action, causation must be proved within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is not sufficient to establish a prima facie case.” (Citations omitted.) That there is a distinction between a reasonable “probability” and a “possibility” needs little discussion. There can be many possible “causes,” indeed, an indefinite number of circumstances which can produce injury or disease.

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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, 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.)

At issue in the present case is the propriety of care and treatment rendered by Stefan Black, M.D. The particular care of hospital personnel and particularly, physicians, is beyond the common knowledge of the layman and therefore. requires expert testimony. As the Court noted in Salasguevara v. Wyeth Laboratories, Inc., (1990) 222 Cal.App 3d 379.385. Medical causation can only be determined by expert medical testimony.

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

Dr. Lee is board-certified in gastroenterology. Based upon his education, training and experience, and review of all relevant information, it is Dr. Lee professional opinion that Stefan Black, M.D.’s care and treatment of Plaintiff, Donna Hill, complied with the applicable standard of care incumbent upon a gastroenterologist. Based upon Dr. Lee’s training and experience in gastroenterology, he has knowledge of the pertinent standard of care among physicians practicing in the northern California medical community at all times relevant to this matter. Dr. Lee’s expert declaration establishes Stefan Black, M.D.’s complete defense to Plaintiff’s claims of medical negligence.

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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, 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 DONNA HILL’S TRIAL BRIEF

Plaintiff, Donna Hill, submits her brief on matters set for trial on March 8, 2010:

Plaintiff alleges that Defendant Stefan Black was negligent and committed battery in his medical care and treatment of her, and that such negligence and battery caused her pain, suffering loss of income, and undue expenses.

Status of the Case

Plaintiff brought this action on June 13, 2007. She was abandoned by counsel in December 2010, and therefore was unexpectedly in Pro Per.

A settlement conference (MSC) was scheduled for January 5, 2010. Plaintiff obtained interim counsel for the MSC. A few days before the MSC, said counsel suffered serious injury. The undersigned counsel, Michael White, stepped in on an emergency basis for the MSC alone.Plaintiff’s original counsel erroneously informed Plaintiff, in writing, that the MSC would be in Roseville. In fact, the MSC was scheduled in Sacramento. Upon determining the error, Mr. White phoned defendant’s counsel David Wang and was soon informed by counsel that the court would not see the parties by the time Plaintiff would arrive to Sacramento.

For more information you are welcome to contact Sacramento 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, 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.)

SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION, MUST BE GRANTED AS A MATTER OF LAW WHEN THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT

The procedural standard for summary judgment is described by California Code of Civil Procedure Section 437c. The pertinent sections provide:

(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 thereto.

(b) The motion shall be supported by affidavits, declaration, admissions, answers to interrogatories, depositions, or in any manner which judicial notice shall or may be taken. The supporting papers shall include a separate statement letting forth plainly and concisely all material facts which the moving party contends are undisputed.

(c) The motion for summary judgment shall be granted if all the 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.

(d) Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated is the affidavits at declarations.California Code of Civil Procedure section 437c. (See also section 437(f) for the similar standards set forth for a motion for summary adjudication.)

For more information you are welcome to contact Sacramento 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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor 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.)

DEFENDANT’S CONTENTIONS

The care and treatment provided by Dr. Smith at all times complied with the applicable standard of care in the community and there was nothing that Dr. Smith did or failed to do that caused, contributed to, or was a substantial factor in any injury alleged by plaintiff. The surgeries by Dr. Smith, follow up care, recommendations and treatment were appropriate and within the standard of care. Plaintiff had pre-existing complaints including complaints of the left upper extremity due to prior surgeries. Additionally, plaintiff was totally disabled prior to the ATV accident on December 22, 2008.

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

Defendant further contends that plaintiff’s tests indicate that there is no objective cause for her symptoms. However, assuming that she does have complex regional pain syndrome, it was not caused, contributed to or aggravated by anything which Dr. Smith did or failed to do. This condition can occur with any type of trauma, including the trauma sustained by plaintiff on December 22, 2008, and it is a condition which occurs in the absence of negligence.

THIS MOVING DEFENDANT, OWEN SMITH, M.D, MET
THE APPLICABLE STANDARD OF CARE

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