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, 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.)

Plaintiff subsequently presented to Joe Ross, M.D., at the Center for Rehabilitation Medicine apparently as a referral by attorney Reginald Hill. Plaintiff reported to Dr. Ross that following the surgery with Dr. Smith she had good sensation throughout the fingers with good motion of the fingers. When Dr. Ross saw plaintiff on July 22, 2004, he noted an assessment of complex regional pain syndrome, left wrist and hand; traumatic left median and ulnar neuropathy and fracture, left distal radius with subsequent operative reduction and pinning. It was his opinion that plaintiff sustained a second injury to the left upper extremity on January 14, 2004, by an approximate 4 hour period where the left wrist was in a forced flexed position. He noted that her injury was preventing her from returning to work as a physical therapist.

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

A nerve conduction study which had been done on July 5, 2004, by Dr. Jones showed very mild delay in distal latency seen on left side . Thereafter, on October 14, 2004, Dr. Ross noted an assessment of post traumatic neuropathic pain, hypersensitivity, left wrist, hand and fingers and he again recommended that the patient follow through with a complete electrodiagnostic study of the left upper extremity.

EMG and nerve conduction studies were done on November 16, 2004, by Dr. Miles at Northern Neuro Center. Dr. Miles noted that motor and sensory nerve conduction studies revealed normal distal latencies, amplitudes and conduction velocities for left median and ulnar nerves. There was no significant side to side difference in sensory nerve study that was noted.

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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.)

SUMMARY OF FACTS

Donna Hill, date of birth XX/XX/1934, had been a patient of Dr. Black’s for a number of years prior to March, 2006. She had undergone colonoscopies in 2000, 2003, and an esophagogastroduodonoscopy in 2001. The colonoscopies were primarily for evaluation of colonic polyps after she had been diagnosed with breast cancer in 2001.

On March 7, 2006, the patient returned to Dr. Black for a routine screening colonoscopy. She had no colon symptoms at the time and a colonoscopy was schedule for March 23, 2006, at the Universal Endoscopy Center.

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

On March 23, 2006, the patient presented for her colonoscopy as scheduled. She had no complaints and there were no abnormalities noted on her physical exam, including the abdomen. She had undergone the normal bowel prep in anticipation of the procedure.

After placing the patient in the left lateral decubitus position, a digital rectal exam and visual inspection of the perineum was performed. Thereafter, the colonscope was gently inserted into the rectum. Almost immediately, Dr. Black encountered “debris” (possibly granulation tissue) in the sigmoid, that appeared partially attached to the lumen.

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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.)

On March 10, 2004, Dr. Smith noted that plaintiff had 80% of normal range of motion and was to continue with therapy and return after seven (7) weeks. Thereafter, on May 19, 2004, plaintiff complained of tingling along a branch of the radial nerve. She had full pro-supination. X-rays showed that she was healed and there was mild articular irregularity. The radiology report noted there to be diffuse osteopenia and mild deformity of the lateral aspect of the distal radius, likely related to the known fracture. Dr. Smith had an extensive discussion with plaintiff regarding her prognosis and the fact that she could follow up with him as needed. He also discussed the need for aggressive therapy. He noted “patient non-compliant with OT protocol.”

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

Plaintiff returned to plastic surgeon, Dr. Lee on March 4, 2004, at which time she complained of left breast pain. At that time she stated that because her systemic symptoms had improved, she had become more active and got herself into shape. She was noted to be teaching water aerobics among other physical activities. She had lost weight and increased her activity and as a result of the weight loss she began noticing rippling and wrinkling of both breasts.

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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.)

Plaintiff presented to Dr. Smith on December 29, 2008, approximately seven (7) days following the accident. X-rays showed a fractured distal radius which was displaced. Dr. Smith noted that the patient previously had lots of pain in the left arm related to silicone implants. The plan was to perform surgery to repair the fractured distal radius, left wrist. Thereafter, on December 31, 2008, Dr. Smith performed a closed reduction and percutaneous K-wire fixation of plaintiff’s fractured left wrist. It was noted that plaintiff had an intra-articular radial styloid fracture and volar avulsion fracture of the distal radius with moderate displacement. Plaintiff was made aware of risks, benefits and complications and informed consent was obtained. Prophylactic IV antibiotics were given at the time of surgery. A soft bandage and forearm splint was applied. Plaintiff tolerated the procedure well.

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

On January 7, 2004, plaintiff returned to Dr. Smith at which time she was one week postop and a referral was made to The Hand Center for removal of the brace and clamshell splinting, physical therapy and pin care education. TENS treatment for pain was given and a clamshell from Spica was fabricated. Range of motion exercises were taught by the therapist. It was noted that since the breast reconstruction in September 2002, she had had pain, burning and weakness in the left arm and she had been unable to grasp with force.

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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.)

Defendant. Stefan Black, M.D., will move this Court for an Order for Summary Judgment or in the alternative, the Summary Adjudication of issues, in favor of Defendant and against Plaintiff Donna Hill, pursuant to California Code of Civil Procedure section 437c.

This Motion will be based upon the grounds that this action has no merit and there is no triable issue of material fact as to this moving Defendant.

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

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

The instant case is one of alleged medical malpractice. Plaintiff, Donna Hill alleges that Defendant, Stefan Black, M.D. (hereinafter, “Dr. Black”), was negligent in the care and treatment of Plaintiff.

Defendant, Stefan Black, M.D., brings this Motion on the grounds that his involvement in the care and treatment of Plaintiff. Donna Hill, was within the standard of care, and no act or omission on the part of Stefan Black M.D., caused or contributed to the alleged injuries suffered by Plaintiff therefore, there it no genuine issue of material fact regarding whether Defendant is entitled to summary judgment on her behalf. (See Part 2 of 5.)

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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.)

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Plaintiff fractured her left wrist in an ATV accident on December 22, 2008. She claims that moving defendant, Dr. Smith fell below the standard of care in his care and treatment of plaintiff and that he caused or contributed to her alleged injuries.

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

STATEMENT OF FACTS

Plaintiff, Anna Brown’s prior medical records reflect that she had pre-existing symptoms and complaints of the left upper extremity following a skydiving accident and breast reconstructive surgery. In fact, plaintiff was apparently totally disabled and on disability.

On or about December 22, 2008, plaintiff was involved in an ATV accident at which time she fractured the left distal radius. She was initially treated at Universal Hospital and instructed to follow up with an orthopedic specialist in the Sacramento area. Plaintiff presented to the Orthopedic Institute the following day on December 23, 2008, at which time she was evaluated by Donald Ward, M.D. During that visit, plaintiff related that on December 22, 2008, while at the beach and riding an ATV quad motorcycle, she tried to use the brake but her left hand could not grip due to prior nerve damage and breast reconstruction.

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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.)

Notice of Motion and Motion for Summary Judgment By Defendant, Owen Smith, M.D.; and Declaration of Ben Lee, M.D.

Defendant, Owen Smith, M.D, will move this Court for an order granting Summary Judgment in favor of defendant, Owen Smith, M.D. and against plaintiff, Anna Brown, in this medical malpractice action.

This Motion is made pursuant to California Code of Civil Procedure Section 437c and is based upon the grounds that Plaintiff’s Complaint has no merit and there is no triable issue as to any material fact warranting trial with respect thereto because this moving defendant met the standard of care and did not cause or contribute to the injuries claimed by Plaintiff.

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

Pursuant to Evidence Code Section 452, moving defendants request judicial notice of all pleadings and records in the Court file in this action.

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It is worth noting that situations similar to those described in this wrongful death 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 medical malpractice case and its proceedings.)

Plaintiffs failed to comply with California Rule of Court 312(g).

California Rule of Court 312(g) provides: each separate cause of action or affirmative defense in a pleading shall specifically identify its number; the party asserting it, if more than one party is represented in the pleading; and the party or parties to whom it is directed. Plaintiffs’ First Amended Complaint violates this rule because the second cause of action, medical malpractice – survival action, does not indicate the identity of the party asserting it because there are two plaintiffs. Although on the caption of the second cause of action it indicates that the action is against Does 6-20, in the body of the cause of action it identifies Dr. Hill, Dr. Goldstein, Dr. Martinez, and Valley Medical Center, as well as Does 6-20, as being negligent in causing harm to decedent. The third cause of action does not identify which plaintiff is asserting the cause of action, nor does it identify which defendant it is being directed against. Therefore, the First Amended Complaint is uncertain, ambiguous and unintelligible. Thus, the court should grant defendant’s motion for judgment on the pleadings.

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

CONCLUSION

For all of the reasons stated herein, Dr. Goldstein respectfully requests that the court grant his motion for judgment on the pleadings.

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It is worth noting that situations similar to those described in this wrongful death 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 medical malpractice case and its proceedings.)

Monica Smith, although legally separated from decedent, was still his wife at his death, and is thus a necessary party to this litigation.

California Probate Code §78 states that the term “surviving spouse”:

“does not include any of the following: (a) a person whose marriage to the decedent has been dissolved, or annulled, unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death; (b) a person who obtains or consents to a final decree of judgment or of dissolution of marriage from the decedent, or a final decree or judgment of annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other, or (2) subsequently live together as husband and wife; (c) a person who, following a decree of judgment of dissolution or annulment of marriage obtained by the person, participates in a marriage ceremony with a third person; or (d) a person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.”

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

A legal separation does not bar a wrongful death action by the surviving spouse if the divorce is not final at the time of decedent’s death. Luis v. Cavin (1948) 88 Cal.App.2d 107.

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It is worth noting that situations similar to those described in this wrongful death 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 medical malpractice case and its proceedings.)

Plaintiffs’ second cause of action fails to state a cause of action because it is brought by one who has no standing to assert it.

Plaintiffs’ First Amended Complaint fails to state facts showing that an affidavit or declaration under penalty of perjury required by §377.32 was executed. Plaintiffs also failed to comply with Probate Code section 58, discussed supra. As a result, plaintiffs failed to allege any facts showing that Robyn Lee, as the representative of decedent’s estate, has standing to assert the second cause of action for medical malpractice – survival action. Because Robyn Lee cannot assert the second cause of action individually due to lack of standing, and because plaintiffs have failed to state sufficient facts to show that Robyn Lee is decedent’s successor-in-interest or the personal representative of decedent’s estate, plaintiffs’ second cause of action fails to state a cause of action. Therefore, pursuant to C.C.P. §438(B)(ii), the court should grant defendant’s motion for Judgment on the Pleadings. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Court Should Grant Defendant’s Motion For Judgment On The Pleadings As To Plaintiffs’ Third Cause Of Action.

C.C.P. §377.60 identifies who may bring a wrongful death cause of action. It provides that a cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons, or by the decedent’s personal representative on their behalf: (a) the decedent’s surviving spouse, domestic partner, children, and issue of decedent’s children. Each such heir has a personal and separate cause of action for decedent’s wrongful death.

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