Articles Posted in Medical Malpractice

(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.

Plaintiff Ana Black’s Memorandum of Points and Authorities in Opposition to Defendant Smith’s Intent to Elicit Improper Opinion Testimony from Richard Lee, M.D.

Plaintiff Ana Black, a minor, by and through her Guardian Ad Litem, Madeline Black, respectfully submits the following memorandum of points and authorities in opposition to Defendant Smith’s expressed intent to elicit expert opinions from Plaintiff’s expert, anesthesiologist Richard Lee, M.D., regarding the applicable standard of care for plastic surgeon Donald Goldberg, M.D., and the nursing staff of Memorial Hospital (hereinafter “MH”), and to opine regarding whether same complied with their applicable standard of care. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

INTRODUCTION

Plaintiff’s expert, Richard Lee, M.D., is a highly qualified anesthesiologist. He is Board Certified in anesthesiology. He has a long history in this field, and the entirety of his practice of medicine has been limited to anesthesiology and pain medicine.

Dr. Lee is not a plastic surgeon or a nurse; he has never been board certified in either of these two fields. He has no education, residency or internship in these fields; he has never received any training in these fields, and has never worked in either field.

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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.)

ALTHOUGH THE BURDEN ON THIS MOTION SHOULD NOT SHIFT TO PLAINTIFF SINCE DEFENDANT HAS NOT MET HIS INITIAL BURDEN, IF THE COURT FINDS OTHERWISE THE MOTION MUST STILL BE DENIED AS TRIABLE ISSUES OF FACT EXIST

Although plaintiffs contend that due to defendant’s deficient motion the Court need not reach analysis of plaintiff’s respective burden under CCP§437c, even if this were the case the motion must still fail.

Expert testimony is required in medical malpractice cases to establish the standard of care required of the physician under the circumstances. Flowers v. Torrance Memorial Hospital (1994) 8 Cal 4th 992, 1001. Expert testimony is also required on the issue of causation. Jones v. Ortho Pharmaceutical Corp (1985) 163 Cal App3d 396, 402, 405.

The Declaration of Dr. Michael Lee submitted by plaintiffs provides expert opinion that defendants acted below the standard of care and caused decedent injury. This is in direct conflict with the Declaration submitted by defendant and therefore there are triable issues remaining on standard of care and causation that must be left for trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

DR. HALL’S LIABILITY UNDER DOCTRINES OF RES IPSA LOQUITUR AND “CAPTAIN OF THE SHIP”
This is a medical malpractice case where plaintiff went into surgery for a laser lead removal procedure and did not survive. This is a classic example to the type of case for which the res ipsa loquitur instructions were designed.

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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 wrongful death 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.

Defendant’s Purported Negligence Was Not The Proximate Cause of Plaintiffs’ Alleged Injuries

Plaintiff must prove a proximate causal connection between the negligent conduct and the resulting injury. Bromme v. Pravitt (1992) 5 Cal.App.4th 1487, 1499; Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 611-612. Based on competent expert testimony, causation must be proven within a reasonable medical probability. As discussed by the Court in Bromme, there is a distinction between a reasonable medical probability and medical possibility. Bromme at 1499. There may be many possible circumstances, which can produce an injury or death. However, Plaintiffs must establish that Defendants’ negligence was the substantial factor in the injury or death. Id. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In medical malpractice cases, the evidence must be sufficient to allow the jury to infer that, in the absence of defendant’s negligence, there was reasonable medical probability that the plaintiffs would have obtained a better result. Morganroth v. Pacific Medical Center (1976) 54 Cal.App.3d 521, 533. Where the facts are undisputed and only one conclusion can be drawn, it is a question of law. See Hooks v. Southern California Permanente Medical Group (1980) 107 Cal.App.3d 435, 448 (court held that, while proximate cause is ordinarily a question of fact, when the facts are undisputed and only one conclusion can be drawn, it is a question of law).

Plaintiff’s injuries as set forth in the Complaint were not a result of any alleged negligence by Dr. Hal Smith. As discussed above, Dr. Hal Smith complied with the standard of care regarding Mr. Brown. As such, nothing Dr. Hal Smith did or failed to do caused the alleged injuries of Plaintiff.

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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.)

DEFENDANTS HAVE FAILED TO MEET THEIR BURDEN AND THEREFORE SUMMARY JUDGMENT MUST BE DENIED

Defendant submitted a Declaration by James Greene, M.D., to support the Motion for Summary Judgment. This “evidence” is insufficient, and therefore defendant’s motion must fail. The declaration is improper, lacks foundation, and constitutes improper opinion testimony. Dr. Greene completely ignores those portions of the medical records that do not support his contentions, e.g., that Dr. Hall lacked experience with this type of surgery; that defendants should have halted the procedure after several drops in blood pressure attributed to “tugging on the lead;” and that he was “captain of the ship.”

While expert opinions are given tremendous weight in Summary Judgment proceedings in medical malpractice cases, statements made without any notable foundation can not simply be accepted because they are made by a purported expert. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff is entitled to have a degree of scientific reliability applied to the defendants’ expert declarations. Mere statements without any explanation or foundation other than I’m the expert, trust me are not persuasive. These “experts” have not been deposed in order to discover the basis for their opinions, nor have they provided any such basis in their declarations. This testimony is inadequate for purposes of summary judgment as it does not meet any kind of scientific reliability standard. See, e.g., Daubert v. Merrill Dow Pharmaceuticals. Inc. 509 U.S. 579 (1993); Frye v. United States 293 F. 1013 (D.C. Cir. 1923).

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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.)

In Bird v. Saenz (2002) 28 Cal.4th 910, 920, the California Supreme Court indicated that in order to maintain a cause of action for NIED on a bystander theory, one must not only witness the injury, but also have contemporaneous awareness of the cause of the injury. In Bird, the plaintiffs were the adult daughters of the decedent. Following a surgical procedure to the decedent, one of the daughters saw the decedent being rushed down the hallway, and she was “bright blue.” She witnessed hospital personnel running down the hallway to render treatment to the decedent. One physician told her “I think they nicked an artery or a vein, and it looks like all the blood went into her chest.” Id. at 913. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The California Supreme Court held that the plaintiffs did not have a cause of action, stating that the plaintiffs have not shown they were aware of the transection of Nita’s artery at the time it occurred. Nor have they shown they were contemporaneously aware of any error in the subsequent diagnosis and treatment of that injury in the moments they saw their mother rolled through the hall by medical personnel. Id. at 921-922. In the medical malpractice context, bystanders cannot sue for negligent infliction of emotional distress based on unperceived medical errors hidden within a course of treatment.

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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.)

The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) Because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts (Sinz v. Owens (1949) 33 Cal.2d 749, 753), expert testimony is required to prove or disprove that the defendant performed in accordance with the standard of care unless the negligence is obvious to a layperson. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)

However, the expert testimony must be based on such matter as may be reasonably relied upon by an expert in forming an opinion on the subject. (Ibid.) With regard to a standard of care derived from a professional practice the induction of a rule from practice necessarily requires the production of evidence of an ascertainable practice. (Wheeler v. Bd. of Forestry (1983) 144 Cal. App.3d 522, 528, fn. 5.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FAILURE TO MEET THE PREVAILING STANDARD OF CARE IN A MEDICAL COMMUNITY IS GROUNDS FOR MALPRACTICE
As is stated in Brown v. Colm (1974), 11 Cal. 3d 639; 114 Cal. Rptr. 128, the Supreme Court held that proof of the standard of care is ordinarily provided by another physician, and if a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes to the weight of his testimony rather than its admissibility. 114. Cal. Rptr., at 130.

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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 wrongful death 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.

Defendants Did Not Breach The Standard of Care

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844; Landeros v. Flood (1976) 17 Cal.3d 399, 410; see BAJI 6.00.1. In the absence of any evidence that Defendant breached the standard of care, Defendant is entitled to judgment as a matter of law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Smith’s care and treatment of Mr. Brown complied with the standard of care. It was not unreasonable for Dr. Smith to allow the patient to leave the emergency room. The patient was oriented to person, place, and time. His vital signs were normal and he showed no signs of medical distress. Therefore, the patient should not be detained when he refused an examination and wanted to leave the hospital. Moreover, Mr. Brown was not in custody pursuant to § 5150 of the Welfare and Institutions Code. Either the police or a psychiatrist can issue such a hold. In following, only a police officer or a psychiatrist can release a patient who is under such a hold.

In the event a patient is held pursuant to § 5150, a form is filled out by the police officer or psychiatrist, which then becomes part of the patient’s chart. The form indicates that the patient is a danger to themselves and others.

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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 wrongful death 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.

ARGUMENT
SUMMARY JUDGMENT LEGAL STANDARD

Summary judgment shall be granted if the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. Cal. Code of Civ. Proc. §437c; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579. A Defendant is entitled to summary judgment if they show one or more elements of the Plaintiff’s case cannot be established or that they have a complete defense to the cause of action. Cal. Code Civ. Proc. § 437c(o)(2); Alszeh v. Home Box Office (1998) 67 Cal.App.4th 1456, 1460. Once the Defendant meet their initial burden, the Plaintiff must demonstrate, by submitting admissible evidence of specific facts that a triable issue of material fact exists. Id. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFF’S CLAIM FOR MEDICAL NEGLIGENCE LACKS MERIT
Elements Required for Actionable Negligence
In any medical malpractice action, the Plaintiff 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 that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. The Defendant does not need to disprove every element of Plaintiff’s cause of action. Rather, the Defendant only need to present evidence that one or more of the elements of the cause of action for negligence cannot be established. Union Bank v. Los Angeles County Superior Court (1995) 31 Cal.App.4th 573, 583.

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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.)

A defendant moving for Summary Judgment has the burden of presenting facts to negate an essential element of each cause of action or to show there is a complete defense to each cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Where, as here, the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that the material fact was true. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

In this case, plaintiff has the burden of proving by a preponderance of the evidence that defendants’ treatment fell below the standard of care. To be entitled to Summary Judgment in their favor, defendants were required to present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care. Only if defendants were successful in meeting this burden does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) 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 wrongful death 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.

STATEMENT OF FACTS
The Emergency Medical Service Report of April 18, 2006, noted that Plaintiff David Brown

(“patient”) was ticketed by police at the airport while on his way to Los Angeles. The paramedics arrived while Mr. Brown was in the custody of airport police and he was belligerent, uncooperative, and possibly intoxicated. It appears that Mr. Brown did not have a medical complaint. However, the police just wanted to check [the] patient before arrest. Therefore, Mr. Brown was taken to the emergency room at RMC. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On April 18, 2006, while the patient was in the emergency room, he was noted to be combative, uncooperative, and abusive. He was first seen by the emergency room physician, Dr. Owen Hill at approximately 1900 hours. Dr. Hal Smith noted ethanol intoxication as an impression, but the patient was allowed to leave the emergency department pursuant to his request because he refused a physical examination.

After being in the emergency room for approximately one hour, the patient left against medical advice, but refused to sign the form indicating that he was leaving against medical advice. Dr. Smith noted that the patient was awake, alert, fully oriented and ambulatory at the time of discharge. Mr. Brown was not booked by the police and was transferred to his residence.

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