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, U.C. 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 birth injury case and its proceedings.)

In Justus v. Atchison (1977) 19 Cal.3d 564, the California Supreme Court made it clear that a layperson’s witnessing events during delivery does not give rise to a cause of action for NIED, because a layperson is not aware of the significance of the events. Justus involved two factually similar actions for medical malpractice and wrongful death, each predicated on alleged negligence occurring during delivery. The fathers in both actions sought to recover for NIED for what they witnessed during the delivery, but the Supreme Court held that they did not have a cause of action. The Court succinctly summarized the facts of the two cases, which are remarkably similar to the facts in the instant action:

Each plaintiff-husband asserts he was present in the delivery room and in close proximity to his wife, and observed the defendants ministering to the latter. In Justus, plaintiff then alleges he saw the manipulation of the fetus with forceps and by hand, and the emergency procedures performed on his wife in connection with the attempted Cesarian section. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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(Please 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.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Allowing Dr. Lee to testify regarding the standard of care for the plastic surgeon or the hospital would constitute clear reversible error as he is not a qualified surgical or hospital standard of care expert.

Here, it is readily apparent that regardless of what opinions Dr. Lee may have expressed in his declaration (in a matter which was taken off calendar and never truly even addressed), it would be clearly improper to knowingly elicit expert opinion testimony from Dr. Lee in specialty medical fields in which he clearly is not a qualified expert.

The California Evidence Code and cases clearly provide for a mechanism to exclude such an improper opinion, and further make it clear that Dr. Lee should not be permitted to opine at trial in areas where he is not a qualified expert. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

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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, U.C. 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 wrongful death case and its proceedings.)

Moreover, in a negligence action it is not for the judge but rather the jury to determine the existence of the facts justifying the application of the doctrine of res ipsa loquitur, and an improper refusal of instructions thereon, followed by a judgment for the defendant, constitutes a denial of fair trial to plaintiff regardless of the jury’s right to weigh the opposing testimony of plaintiff as against the expert evidence of defendant. Rawlings v. Harris (1968) 265 Cal. App. 2d 452, 71 Cal. Rptr. 288.

In Fraser v. Sprageue (1969) 270 Cal. App. 2d, 76 Cal. Rptr. 37, the appellate court held that the evidence was sufficient to entitle plaintiff to have the cause submitted to the jury under a conditional res ipsa loquitur instruction, where plaintiff suffered an injury to the peroneal nerve, where such injury occurred either during surgery performed by defendant or as a result of overtight bandaging by defendant following surgery. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Fraser, an expert in vascular surgery testified that he had performed at least 1,000 such operations without injury to the peroneal nerve and had never heard of such an injury resulting from like operations, where the operation was relatively commonplace rather than complex or unusual, and where, at the time of recommending surgery, defendant made no mention of risk of nerve injury.

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(Please 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.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

DISCUSSION

1) Allowing Dr. Lee to Testify regarding the Standards of Care for the plastic surgeon or the hospital, would violate the holdings of Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919; Jones v. Moore (2000) 80 Cal.App.4th 557; and Bonds v. Ray (1999) 20 Cal.4th 140.

In Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919, the Fifth District held that where the plaintiff sought to elicit causation opinion testimony of an expert at trial, where that expert was not designated to give expert opinion testimony regarding causation, and where that expert had said he had no opinion regarding causation at three prior depositions, exclusion of this new area of testimony is required. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Kennemur was followed by the legal malpractice case of Jones v. Moore (2000) 80 Cal.App.4th 557, and the medical malpractice case of Bonds v. Roy (1999) 20 Cal.4th 140. In Jones, the Plaintiff’s expert testified at deposition he had an opinion about whether the defendant complied with the standard of care in negotiating a divorce decree, but not in other areas. At trial, the trial court, as in the present case, excluded any opinions of the expert outside the opinions testified to at his deposition. The Second District held that under California law, the expert was limited to those areas he had testified to at his deposition. Id at p. 564-565.

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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, U.C. 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 wrongful death case and its proceedings.)

LEGAL PRINCIPLES

Since the doctrine of res ipsa loquitur is only a rule of circumstantial evidence and, if overcome, plaintiff still has the burden of proof on the ultimate issue of negligence, general instructions given on the issues and on the burden of proof when viewed together with instructions given on res ipsa loquitur as a matter of law do not prejudicially mislead a jury by preventing it from knowing which party had the burden of proof. McFarland v. Booker (1967) 250 Cal. App. 2d 402, 58 cal. Rptr. 417.

Since a res ipsa loquitur instruction permits the jury to infer negligence from the happening of an injury alone, there must be a basis either in common experience or expert testimony that when such an injury occurs, it is more probably than not the result of negligence. McKinney v. Nash, supra, at 436. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Blackwell v. Hurst (1996) 46 Cal. App. 4th 939, 54 Cal. Rptr. 2d 209 states that use of the res ipsa loquitur doctrine is especially suited to a medical malpractice setting in which the unwitting and often unconscious or semiconscious patient is at an evidentiary disadvantage because of his or her inability to demonstrate what occurred in the hospital or surgical room setting.

Such is the case here.

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(Please 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.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Despite the clear lack of expertise of Dr. Lee regarding the standard of care for plastic surgery and nursing, the clear designation of Dr. Lee, Dr. Lee’s deposition testimony that he had no such opinions, and the fact that they are acting in contradiction to their own motion and the Order of the Court, Defendant Smith now wishes to call Dr. Lee at trial and elicit opinions regarding the standard of care for the surgeon and hospital and whether same were violated.

Counsel for Defendant Smith cites to a declaration filed early in the action, in which Dr. Lee acknowledges he has no expertise regarding the standard of care for surgeons and hospital staff but nonetheless volunteers some opinions regarding a few surgeon issues and nursing matters. This declaration was submitted only to the Court in a law and motion matter, and not to a jury, and since Defendant Smith withdrew their motion for summary judgment, the matter was never ruled upon. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Whether Dr. Lee expressed any opinions in his declaration regarding the plastic surgeon’s and nurses’ standard of care, is a moot point. Clearly, he is not qualified to opine in these areas and it would be a blatant violation of California Evidence Code sections 720 and 801 to allow or to force Dr. Lee to testify regarding topics about which he is not a qualified expert.

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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, U.C. 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 wrongful death case and its proceedings.)

3. There is no argument that Ms. Smith was under the exclusive control of defendant when the injury occurred.

At all times during the surgery when the negligence occurred, Ms. Smith was under the sole care and control of Dr. Hall. Dr. Hall was the surgeon and captain of the ship . See Fields v. Yusuf (2006)144 Cal. App. 4th 1381,51 Cal. Rptr. 3d 277, which reasoned the test for exclusive control has become one of right of control rather than actual control, and a plaintiff need not identify the particular negligent person or the particular instrumentality that cause his or her injuries. When a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendant who had any control over his or her body or instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Also, a special relationship exists between a patient and a surgeon during surgery. The patient is usually unconscious rendering him or her helpless and vulnerable; the patient often has limited understanding of the surgical procedures and no ability to control what is happening; the patient has placed complete trust and confidence in the surgeon to exercise due care.

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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, U.C. 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 birth injury case and its proceedings.)

The Court in Bird cited approvingly (at 921) the case of Golstein v. Superior Court (1990) 223 Cal. App.3d 1145, in which the plaintiffs were the surviving parents of a nine-year-old boy who died as the result of the negligent administration of an overdose of radiation while undergoing treatment for curable cancer.

Although they were present and witnessed the results of the negligent over-radiation, and although they observed the deteriorating and worsening condition of their son on a daily basis as well as his pain and suffering up to the time of death, the court of appeal held that the plaintiffs could not recover on a bystander theory because the plaintiffs did not experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury. Id. at 1427. 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, U.C. 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 wrongful death case and its proceedings.)

2. Plaintiffs have produced testimony that the injury suffered by appellant ordinarily does not happen in the absence of negligence

Plaintiffs’ expert has testified that the damage sustained by the deceased plaintiff would not ordinarily have occurred unless someone was negligent.

Plaintiffs submit that from the testimony of plaintiffs’ expert (and defendant doctor himself) the outcome of Ms. Smith’s surgery was unacceptable and would not have usually or ordinarily have happened. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that in the light of past experiences it can be said it was probably the result of negligence by someone and that defendant is probably the one responsible. McKinney v. Nash (1981) 120 Cal. App. 3d 428, 174 Cal. Rptr. 642.

To constitute a res ipsa loquitur situation where the question whether the accident was probably the result of negligence is not a matter of common knowledge among laymen, such as one involving the inadvertent suturing of a ureter in a hysterectomy operation, such probability must be based on expert testimony, not in any particular language, but sufficient to support an inference of negligence from the happening of the accident alone. Tomei v. Henning (1967) 67 cal. 2d 319, 62 Cal. Rptr. 9,431 P. 2d 633.

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(Please 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.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

On March 27, 2008, Dr. Lee was designated by Plaintiff Ana Black to testify regarding anesthesiology issues, including the standard of care and causation issues pertaining to anesthesiology. Nowhere was there any designation/declaration that Dr. Lee would testify regarding the standard of care for surgeons or nurses, or whether the plastic surgeon or nurses in the present case complied with the applicable standard of care. The obvious reason was that Dr. Lee is an anesthesiologist, not a plastic surgeon or a nurse, and he is not qualified to render an opinion in these other fields of medicine.

Likewise, Defendant Smith’s expert, Dr. Greene has similarly stated that he is neither an expert regarding the standard of care for surgeons or nursing, and that he does not intend to give any opinions in these areas. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On April 16, 2008, Dr. Lee was deposed, and not only once, but twice, testified that he would not be giving testimony regarding the standard of care of the surgeon or the hospital.

Q. Do you intend to give testimony as to the standard of care as it applies to Dr. Goldberg, the plastic surgeon?

A. No.

Q. Do you intend to give standard of care testimony with respect to the hospital?
A. No.

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