Articles Posted in Medical Malpractice

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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.)

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. Ordinarily, the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. Bromme v. Pavitt, supra, 5 Cal.App.4th at 1497-1498. If the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries. Doupnik v. GM Corp., (1990) 225 Cal.App.3d 849, 861.

Plaintiff’s mental health history is incredibly relevant to the issue of causation because it demonstrates the decedent’s intention and desire to end his life. One of the critical defenses that the Medical Center Defendants have put forth through the course of this litigation is the fact that Mr. Hill’s departure was abrupt considering he was feigning sleep immediately prior to his elopement. This signifies an intent to deceive medical providers into thinking he was complacent when he really wanted to escape. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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. 5 – TO EXCLUDE DECEDENT’S PRIOR MENTAL HEALTH HISTORY
INTRODUCTION

Plaintiff seeks to exclude all reference at trial to plaintiff’s mental health history (except the information about his mental health included with Dan Lennon’s evaluation) under 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 prior mental health issues are 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, 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 sent to California (his home was in Arizona) to train other soldiers. Mr. Hill took an overdose of Wellbutrin on February 23, 2008 and was taken to Sacramento Medical Center where he was placed on a 1799 hold by emergency room physician Stephen Brown, a temporary hold awaiting evaluation by a behavioral health specialist.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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.)

THE JURY WAS CORRECT IN FINDING THAT DR. LEE WAS NOT NEGLIGENT IN HIS CARE AND TREATMENT OF ALBERT GREENE

Much of the testimony on both sides has been discussed in prior filings. Below, Defendant will address only the new matter raised in Plaintiffs’ moving papers.

Plaintiffs claim that Dr. Smith testified that an internist should at least know that a dens fracture presents a risk of spinal cord damage (Plaintiffs’ brief, page 9, lines 5-6), but the cited testimony by Dr. Smith refers to a displaced fracture causing spinal compression – – not the situation Dr. Lee was presented with. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Further, Plaintiffs ignore the extensive testimony of Dr. Smith about this same issue, later in Plaintiffs’ counsel’s cross-examination of Dr. Smith:

Q. [by Mr. Howard] So what does the standard of care call for treating Mr. Greene at this stage of the game where we have Exhibit 3, where we still see a suspected chronic fracture of the dens and an incomplete opening of the C1? What does the standard of care require regarding treatment of the neck at that stage?

A. I think most internists would be satisfied and reassured that the emergency room physician has confirmed – conferred with the radiologists and that they both felt there was no acute problem here with the neck and that the neck has been cleared.

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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.)

The consequences of this Line of Duty determination can be significant. If a soldier was not present for duty due to hospitalization for example, this time must be made up and directly affects the soldier’s Estimated Time of Separation (ETS) date. Moreover, if there are any complications from an injury that was deemed not in the line of duty, the Veteran’s Affairs may determine that the soldier is not eligible for VA benefits, disability benefits or medical treatment for the injury.

Here, the relevance of this investigation and determination of the circumstances surrounding Mr. Hill’s unusual demise by the military cannot be overstated, yet plaintiff seeks to exclude this evidence. Any evidence related to this determination is probative of the issues of consequence in this litigation. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Mr. Hill’s death occurred while he was absent from the military, and under strange or doubtful circumstances. His LOD determination may have significant impact on benefits such as Survivor Benefit Plan, disability retirement and severance pay, etc. Plaintiff Stella Hill is the surviving spouse of the decedent and receives compensation from the military in the form of VA benefits, spousal retirement and family survivor benefits.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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.)

The Court of Appeal addressed the holdings of Cobbs and Truman, discussing the duty found in those cases to disclose information about recommended procedures [See 7 Cal.App.4th at pt 1069], The Court went on to say:

In Scalere v. Stenson (1989) 211 Cal.App.3d 1446 [260 Cal.Rptr. 152], the plaintiff made the same argument that plaintiff here makes, namely, that a physician has a duty of disclosure concerning procedures which he or she is not recommending. There, the defendant physician, a cardiologist, performed an angiogram on the plaintiff’s right arm. After surgery, plaintiff reported pain and discomfort in her arm. The physician examined and tested her arm and concluded that it was progressing satisfactorily. Consequently, he neither told her about nor recommended any further diagnostic tests or therapy. About a year later the plaintiff underwent a saphenous vein bypass of her right brachial artery with resultant damage. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In the ensuing malpractice action, the jury found that the physician was not negligent On appeal, plaintiff contended that the trial court erred in not instructing on duty to disclose. The Court of Appeal rejected the argument, concluding that the duty of disclosure is predicated upon a recommended treatment or diagnostic procedure and that the failure to recommend a procedure must be addressed under ordinary medical negligence standards.

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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

Preliminarily, plaintiffs characterization of the line of duty determination as being made where a soldier is possibly under the stress of a his/her time in combat in Plaintiff’s Motion in Limine, p.l, is extremely limiting and somewhat biased. While many soldiers certainly do experience stress “related to their military service,” it is not a given that they will also attempt to end their lives under non-combat situations such as those in this case. More importantly however, plaintiff glosses over the fact that the Line of Duty determination is in fact, an investigation. The past difficulties are relevant for the jury’s consideration of whether plaintiffs economic damages claim have any merit, and to what degree. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As a pre-existing medical condition, the military failed to prevent the current hospitalization with significant therapy and medication prescriptions. This is probative of whether Mr. Hill could have been expected to return to military service at any point in the future, and whether the military could offer Mr. Hill the assistance he needed, among other things. Plaintiff cannot claim that Defendants should have inquired into this history to establish liability, while precluding defendants from utilizing the same information for purposes of causation and damages.

A Line of Duty (LOD) determination is an administrative tool for determining a member’s duty status at the time an injury, illness, disability, or death is incurred. This investigation is generally conducted whenever a soldier acquires a disease, incurs a significant injury or is injured under unusual circumstances.

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It is worth noting that situations similar to those described in this birth injury 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.)

PLAINTIFF’S NEW TRIAL MOTION cont.

Conversely, in Smith it is undisputed that although there are two potential alternative methods for diagnosing DRD, the only method contemplated by the Defendant Dr. Hill was a trial dose of L-dopa.

In Maher v. Saad (2000) 82 Cal.App.4th 1317, it was held to be error to give this instruction when there was no evidence that the particular procedure actually utilized was a recognized and approved method of diagnosis or treatment for the patient’s condition. Maher v. Saad, supra, 82 Cal.App.4th at pp. 1318-1319, 1327. In Maher, Plaintiff’s argued that the so-called T incision used by the surgeon was below the standard of care. Although the Defendant’s expert did not say its use violated the standard of care, no one testified in that situation that it was a recognized or approved method of treatment. The court, over objection, gave jury instruction BAJI 6.03, but granted a new trial when the jury found no negligence.

The trial court and the appellate court held that Jury BAJI 6.03 prevented plaintiff’s from receiving a fair trial on their negligence claim. (Maher v. Saad, supra, 82 Cal.App.4th at p. 1325.) 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.)

OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 4 REGARDING LINE OF DUTY REFERENCES
Introduction

Plaintiff seeks to exclude at trial all reference to a Line of Duty Determination as well as any documentation pertaining to a Line of Duty Report. Plaintiff claims that any reference to this term would constitute a “trial within a trial” as to the stresses of combat and whether their residual effects existed in Sacramento. (Plaintiffs Motion in Limine No. 4)

It is anticipated that Plaintiff will put on evidence regarding Mr. Hill’s military service to this county in an effort to evoke sympathy and compassion from the jury. It is also anticipated that Plaintiff will attempt to portray the decedent as a hero who “fell in the line of duty.” The fact that a Line of Duty Investigation regarding the circumstances of Mr. Hill’s death was initiated and conducted by the military is, by itself, quite salient and should properly be allowed as admissible evidence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

To the extent the line of Duty Report spells out collateral source benefits admissible under Civil Code Section 333.1, Defendants incorporate by reference all arguments contained in their Oppositions to Plaintiff’s Motions in Limine 2 and 21.

Facts
David Hill had served in the U.S. military armed services (Army) from 1989 to 1991 and again from 1999 through 2008.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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.)

PLAINTIFFS HAVE COMPLETELY FAILED TO SHOW ANY LEGAL DUTY BY DR. LEE TO DISCUSS POSSIBLE SURGERY. REFERRAL TO A NEUROSURGEON. OR PHYSICAL THERAPY ON THE NECK SINCE HE DID NOT RECOMMEND ANY OF THOSE INTERVENTIONS

Citing Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 and Truman v. Thomas (1980) 27 Cal.3d 285 165 Cal.Rptr. 308, 611 P.2d 902, Plaintiffs contend that Dr. Lee had a “legal duty” to disclose risks associated with not treating his dens fracture or with performing physical therapy. In so doing, they ignore the fact that both Cobbs and Truman repeatedly refer to “recommended therapy” in connection with a duty to disclose. In the instant case, Plaintiffs claim that Dr. Lee had a legal duty to discuss the risks of treatments he DID NOT recommend. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A nearly identical claim was rejected in Vandi v. Permanente Medical Group, Inc. (1992), 7 Cal.App.4th 1064; 9 Cal.Rptr.2d 463. There, the Court of Appeal began their decision by stating [opinion at pg. 1066]:

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It is worth noting that situations similar to those described in this birth injury 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.)

IRREGULARITY IN THE PROCEEDINGS AND ERROR OF LAW

Code of Civil Procedure Section 657(1) provides a new trial may be granted based upon any irregularities in the proceedings of the court, or any order of the court or abuse of discretion by which a party was prevented from having a fair trial. Section 657(7) provides for vacating a verdict and ordering a new trial due to an error of law which occurred at trial.

The grant of a new trial is a proper remedy for the giving of an erroneous jury instruction when the improper instruction materially affected the substantial rights of the aggrieved party. [C.C.P. §657.] …’When a new trial was granted on the basis of an erroneous instruction, the order will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury …’ (Maher v. Saad (2000) 82 Cal.App.4th 1317, 1325 citing Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205, quoting Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 871; See also Brignoli v. Seabound Trans. Co. (1947) 29 Cal.2d 782, 791 : “Where it appears that an erroneous instruction confused or misled the jury, a new trial is justified.”) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It Was Substantial Error to Give the CACI 506 Instruction
The order allowing CACI 506, when there was no evidence that Dr. Hill followed an approved or alternative method of diagnosis, was erroneous as a matter of law. This instruction presumptively was prejudicial to Plaintiff, as evidenced by the jury’s note.

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