Articles Posted in Medical Malpractice

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.)

Memorandum of Points and Authorities in Support of Defendant, Robert Goldstein, D.O.’s Motion for Judgment on the Pleadings

Defendant, Robert Goldstein, D.O. (hereinafter referred to as “Dr. Goldstein”), by and through his attorneys, ABC & Associates, and as and for his Memorandum of Points and Authorities in Support of his Motion for Judgment on the Pleadings to plaintiffs’ First Amended Complaint, states as follows:

INTRODUCTION

On August 2, 2009, plaintiffs, Robyn Lee, individually and as the representative of the estate of James Smith, deceased (hereinafter referred to collectively as, “Plaintiffs”), filed their First Amended Complaint in the above-captioned case. They assert two causes of action against Dr. Goldstein; the second cause of action for medical malpractice – survival action, and the third cause of action for wrongful death. Plaintiffs’ first cause of action for premises liability – survival action is not directed at Dr. Goldstein.

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, 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 case and its proceedings.)

ARGUMENT
A. The Conversation that Occurred Between Dr. Gamble and Dr. Lee Is Relevant to Dr. Gamble’s Qualifications and Expertise and the Prejudicial Affect that Plaintiffs Counsel Predicts Does Not Meet the Requirements of Evidence Code section 352

Plaintiff complains that mentioning the conversation and the partnership between the doctors creates a risk that the jury will perceive the testimony as equal in caliber simply because of the affiliation. This is a weak disguise for plaintiffs true concern that the jury will find out that Dr. Gamble sought out Dr. Lee’s assistance before drawing his own conclusions about this case. Dr. Gamble testified at his deposition that this conversation occurred about the same time as he signed his declaration to oppose the summary judgment motion. The very fact that he sought out assistance during this critical time is probative of his credibility as an expert witness and of the opinions proffered in the many drafts of his declaration produced at his deposition.

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

Even if we were to entertain Plaintiffs contention that the jury may conclude that partners are equal, this is not a source of undue prejudice to the Plaintiff because it would adversely affect the Defendants as well. Most evidence is “prejudicial” to the party against whom it is offered, but that is not enough to preclude it under Evidence Code section 352. Further, the probative value of any such evidence far exceeds any small prejudicial affect it may have.

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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, Sutter, or any skilled nursing facility.

(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.)

Discussion of Dr. Lee’s Testimony cont.

Additionally, at another point in his deposition, Dr. Lee testified that his best understanding of where the pressure sore began was with reddening at XYZ. Lee Depo. at 87:6-88:2.

From the totality of Dr. Lee’s deposition testimony it is clear that he cannot testify to a reasonable degree of medical certainty that Ms. Hill’s pressure sore did not begin at XYZ Healthcare. Indeed, he testified to precisely the opposite in his deposition. Given this, Dr. Lee should be precluded from offering the opinion at trial that, to a reasonable degree of medical certainty, Ms. Hill’s pressure sore began at XYZ Healthcare.

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

Inquiries Should Be Made As To Whether Dr. Lee Has Been Apprised Of His Fifth Amendment Right To Not Incriminate Himself Regarding Potentially Criminal Conduct

Dr. Lee signed two declarations in connection with his expert work in this matter. One declaration was in support of defendants’ motion for summary judgment. The other declaration related to his efforts to have his deposition taken in SanDiego rather than Sacramento. Both declarations contain significant and material false statements.

While Dr. Lee can follow the lead of his counterpart nurse Cece Brown and suggest that the false statements in his declaration in support of summary judgment were unintentional oversights, plaintiffs do not believe the same can be said for his declaration seeking to have his deposition in Fresno rather than Sacramento.

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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 wrongful death case and its proceedings.)

OPPOSITION TO MOTION IN LIMINE NO. 14 – TO EXCLUDE EVIDENCE OF DISCUSSION BETWEEN DRS. GAMBLE AND LEE
INTRODUCTION

Plaintiff seeks to exclude from evidence any mention of conversations between Dr. Lee and Dr. Gamble or the fact that they work together. Defendant disagrees that such evidence should be excluded based on a recent discovery that Plaintiffs expert, Dr. Alan Gamble, approached Defendants’ expert, Dr. Michael Lee, specifically about this case. Plaintiff is merely attempting to cover up the fact that her expert made a crucial error in judgment by approaching defense counsel’s expert for his learned advice and opinion on the facts of this case. That plaintiffs expert elected this tactical course to consult a third party as part of the formulation of his opinion effectively waives any expectation of work product privilege and is both admissible and subject to discovery. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FACTS
Well over a month before the time for expert witness disclosure and designation in this matter, plaintiffs expert, Dr. Gamble, admittedly of his own volition, informally approached defense expert, Dr. Lee to discuss his review of a case in which he had been retained as an expert. At the time, neither doctor was aware the other was consulting on this case. Following a brief description of the facts in the case by Dr. Gamble, the defense’s expert, Dr. Lee recognized the facts as being similar to this instant litigation matter in which he had been retained by defense counsel for review, and immediately terminated the conversation.

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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, Sutter, or any skilled nursing facility.

(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. Lee Should Be Precluded From Rendering The Opinion That Ms. Hill Did Not Develop Her Pressure Sore At XYZ Healthcare

During the earlier part of his deposition, Dr. Lee offered opinions that were at best vague and contradictory whether he could or would render an opinion regarding whether Ms. Hill did or did not develop her pressure sore at XYZ Healthcare. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

For example, after being impeached with the woeful inaccuracies in his deposition in which he stated that Ms. Hill had been in transit for 30 hours instead of 6 or 7 hours (actually it was 5.5 hours), Dr. Lee testified:

A: Well, yes. Instead of the 30 it’s a small number, 6 or 7 hours. Could decub occur in 6 or 7 hours? Yes. Could the decub be caused from pressure? Yes. Could it be from urine? Yes. Could it be from lack of turns? Yes. But I’m not gonna testify to what actually caused the decub.

(Lee Depo. at 68:19-25.)

Shortly thereafter, however, Dr. Lee testified:

Q: Will you be testifying that to a reasonable degree of medical certainty Ms Hill did not develop the pressure sore that was documented upon her admission to Kaiser at XYZ Healthcare?
A. Correct.

(Lee Depo. at 69:11-15.)

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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 wrongful death case and its proceedings.)

ARGUMENT

In order to prove causation, Plaintiff must establish a causal link between the harm complained of and the Defendants’ actions. See Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 279; Frantz v. San Luis Medical Clinic (1978) 81 Cal.App.3d 34, 39. A plaintiff cannot recover where there is only a mere possibility a defendant’s alleged negligence caused the wrong. Morgenroth v. Pacific Medical Center (1976) 54 Cal.App.3d 521, 533. The mere possibility that the Defendants’ treatment was the cause of Plaintiffs injury is insufficient to establish a prima facia case. There can be many possible “causes,” indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498.

California has adopted the “substantial factor” test for proving cause-in-fact, or actual cause, in negligence cases. Viner v. Sweet (2003) 30 Cal.4th 1232, 1238; Rutherford v. Owens-Ill., Inc. (1997) 16 Cal.4th 953, 968.) Per CACI 430, a substantial factor is one that a reasonable person would consider to have contributed to the harm suffered by the plaintiff. As reiterated most recently in Mayes v. Bryan (2006) 139 Cal.App.4th 1075: A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. Id. at 1095. 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, Sutter, or any skilled nursing facility.

(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.)

Plaintiffs note that, in response to other questions, Dr. Lee made statements regarding Ms. Hill’s potential mortality rate once she broke her hip. He referred to his opinion that the delay in treatment did not hasten Ms. Hill’s death. Lee Depo. at 103:20-104.6. Dr. Lee then discussed what he believed to be the high rate of mortality among elderly persons who fracture their hip. Id. at 104 8-107:22. After this, he explained well, once she got her hip fracture that was undiagnosed and I — okay, which was undiagnosed, at that moment she became a high mortality. Now, staying the extra days in bed without getting the surgery, as I said earlier, it puts her at a higher risk for all those other things happening Id. at 107:16-22.

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

The Court should preclude testimony along the lines stated in the above paragraph. Dr. Lee specifically ruled out his intent to render testimony regarding the cause of Ms. Hill’s death during his deposition. Given this, his musings about the rate of mortality for patients who need hip surgery and whether and to what extent the delay affected Ms. Hill’s mortality rate (which testimony was at best equivocal in any event), should be excluded pursuant to Evidence Code sections 350 and 352 as entirely irrelevant and potentially confusing the issues remaining in this case for the jury. (See Part 3 of 4.)

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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 wrongful death case and its proceedings.)

OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 13 PROHIBITING DEFENDANTS FROM ATTEMPTING TO BLAME THE US MILITARY, THE ARMY, THE DEPARTMENT OF DEFENSE OR WAR OVERSEAS FOR CONTRIBUTING TO MR. HILL’S DEATH
INTRODUCTION

Plaintiff seeks to exclude all reference to any role that the military may have played in David Hill’s death. Plaintiff refers to Evidence Code section 352, arguing that the probative value of such information is outweighed by the potential prejudice that may ensue if the evidence is revealed at trial. Defendants maintain that Mr. Hill’s service in the military caused or contributed to his mental health issues and such information is therefore relevant to the case and integral to Defendants’ affirmative defense of pre-existing condition and causation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FACTS
Decedent David Hill was not only diagnosed with post-traumatic stress disorder (PTSD), but was also placed on a previous psychiatric hold by the US Military just a month prior to his elopement from Sacramento Medical Center. Despite this recent history of mental health issues, Mr. Hill was released to full duty, sent to California (his home was in Arizona) to train other soldiers.

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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 wrongful death case and its proceedings.)

OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 10 – NO MENTION AS TO WHETHER OR NOT DANI LENNON ASSESSED DAVID AS A FLIGHT RISK OR RECOMMENDED THAT HE BE RESTRAINED
INTRODUCTION

Plaintiff seeks to exclude any mention of whether or not Dani Lennon assessed David Hill as a flight risk or whether she recommended restraints for him. There is no legal basis for Plaintiff to exclude this relevant and highly probative evidence. Rather, Plaintiff moves to exclude the evidence because it is bad for her case and not based on any statutorily recognized reason.

FACTS

Plaintiff initially sued Health Care West/Universal Behavioral Health, but dismissed that party. Universal Behavioral Health was involved in the case because they sent their Behavioral Health Analyst to Sacramento Medical Center to assess David Hill and because David Hill was slated to transfer to Universal once he was medically cleared by . In response to a demand for production of documents from Plaintiff, Healthcare West provided certain documents that pertained to David Hill’s assessment. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

ARGUMENT
Plaintiff, in her moving papers, argues that (a) Ms. Lennon was not trained to assess the issues of flight risk or restrains, she was only trained to assess the need for a 5150 hold and (2) if Ms. Lennon did assess flight risk, she was not doing so from the perspective of Sacramento Medical Center but was rather assessing whether Mr. Hill was a flight risk at Universal Behavioral Health, a locked facility.

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, Sutter, or any skilled nursing facility.

(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.)

Plaintiffs Emma Hill and Noelle White’s Bench Brief Re Anticipated Testimony of Harold Lee, M.D.

Defendants have stated their intent to call their physician expert, Harold Lee, M.D., during trial.

Plaintiffs file this anticipatory bench brief in an effort to avoid protracted discussion at sidebar in the jury’s presence regarding various aspects of the scope of Dr. Lee’s testimony.

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

Dr. Lee Should Be Precluded From Offering Testimony Of Any Kind Relating To Ms. Hill’s Cause Of Death

First, Dr. Lee should be precluded from offering testimony of any kind relating to Ms Hill’s cause of death. In his deposition, Dr. Lee specifically testified that he would not be offering any opinion as to causation at trial:

Q: Are you going to render an opinion that sepsis from an infected sacral ulcer was not a cause of death for Ms. Hill?

A: Well, what I’m gonna say is it’s anyone’s guess whether it was the sacral infection or a urinary tract infection.

Q: So you’re not — you’re not gonna offer an opinion to a reasonable degree of medical certainty as to what the cause of death was for Ms. Hill; is that right?
A: Correct.
(Lee Depo. at 103:5-15.)

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