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, 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.)

GENERAL LAW OF SUMMARY JUDGMENT

The court’s sole function on a Motion for Summary Judgment is issue finding … not issue determination. The law and motion judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” Code of Civil Procedure §437(c)(d); Weil and Brown, Civil Procedure Before Trial (1992), pages 60-65.

The function of a trial Court on a Motion for Summary Judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. Molko v. Holy Spirit Association (1988), 46 Cal. 3d 1092; 252 Cal. Rptr. 122.

If there is a single issue of fact in conflict, the motion must be denied (emphasis added). Versa Technologies. Inc. v. Superior Court (1978), 78 Cal. App. 3d 237; 142 Cal. Rptr. 570. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A material fact is a fact which must relate to some claim or defense in issue under the pleadings. Also, it must be essential to the judgment, or if proved, would change the outcome of the case. Pettus v. Standard Cabinet Works (1967), 249 Cal. App. 2d 64; 57 Cal. Rptr. 207.

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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 FOURTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)

This is an action for injury to the minor plaintiff occurring during his delivery and birth. The defendant is not demurring to the first three causes of action for medical negligence brought by the minor plaintiff and his mother. The defendant is not demurring to the fifth cause of action for loss of consortium brought by the father.

However, the fourth cause of action for NIED on a bystander theory by the child’s father, Thomas Lee, does not state facts sufficient to constitute a cause of action, because it does not set forth facts demonstrating that the father had contemporaneous awareness of the injury at the time it occurred and knew the negligent cause of that injury at that time. 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.

Defendant Owen Hill, M.D.’s Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support

Pursuant to Section 437c of the California Code of Civil Procedure, this summary judgment motion is brought on the grounds that there is no genuine issue of material fact and that Defendant is entitled to judgment as a matter of law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the Separate Statement of Undisputed Facts, all documents on file herein, and upon such other argument or evidence as may be presented to the Court at or prior to the hearing on this motion.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
On April 14, 2008, Plaintiff David Brown filed a Complaint against Defendant Owen Hill, M.D., along with co-defendant Regional Medical Center (“RMC”). The complaint purports a cause of action for medical negligence against both defendants regarding his emergency room presentation at the hospital on April 18, 2006. Specifically, Plaintiff contends that “Defendants’ actions were a violation of [S]ection 5150 of the Welfare and Institutions Code.” Plaintiff further contends that Defendants failed to “give a complete diagnosis, to inform Plaintiff of his condition and to treat Plaintiff while defendants had Plaintiff in their care and custody.”

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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.)

Ms. Smith was a relatively young (44 years) woman with three minor children who had recovered from her cardiomyopathy. Her previous echo was normal and she was asymptomatic. She did not require continued use of a defibrillator. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Use of lasers to extract leads requires experience and judgment to make the determination as to how much pulling to use on a lead, how long to pull on a lead, etc. Dr. Hall had never performed this procedure and Dr. Stephen Lee had only performed it 6-7 times per his deposition. Dr. Hall has responsibility for Ms. Smith’s death as captain of the ship . He was monitoring the blood pressure, and he was the surgeon in charge. Per standard of care Dr. Hall should have halted the procedure when complications arose and if necessary obtain cardiology consultation to evaluate the situation and take the proper steps. Continuing the procedure caused the major injury to the vessels which led to Ms. Smith’s death. The defendant physicians were not sufficiently experienced to perform this procedure.

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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.)

Decedent was scheduled for pacemaker and lead extraction secondary to the infection at Memorial by surgeon David Hall, M.D., on January 19, 2009. This was a percutaneous laser lead extraction.

Surgery began at 1532, with purulence encountered in the pseudocapsule. The generator was explanted, and around 1655 problems began. There is a handwritten note at 1700 stating there was easy removal of A-lead, but there were problems with the V-lead. Decedent had sudden loss of blood pressure which improved with released traction, but then dropped again. The surgeons apparently attributed the drop in blood pressure to tugging on the lead. The procedure continued producing another sudden drop in blood pressure and which point sternotomy was performed.

The decision was made to open up decedent’s chest. There was absolutely no blood in the pericardium. Right chest was filled with blood. Large bore catheters were placed including one on the atrium. Rapid blood and fluid infusion was implemented. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On exploration, Dr. Hall found shearing of the right subclavian vein, innominate vein and complete shredding of the superior vena cava. The AICD lead (i.e. the V-lead) was found to have a large swath of superior vena cava and parietal pleura. The azygos vein had been sheared and retracted deep into the chest and was bleeding swiftly. Consequently, Ms. Smith died as a direct result.

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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.)

Should [defendant/physicians] be … designated, a full inquiry into their present opinions would be entirely appropriate. But … the inquiry is not appropriate until and unless there is … a[n] [expert] designation.

As we have seen, C.C.P. section 2034 is expressly applicable to the expert opinion of parties to a lawsuit. We see no reason to disrupt the carefully crafted legislative scheme for the regulation of discovery of the identity, qualifications and opinions of expert witnesses. The trial court order that the physician defendants testify at deposition about their present opinion of the medical propriety of their acts, even though they have not been designated as expert witnesses, would have that effect. It is for that reason that we direct that it be set aside. [Id. at pages 1455-1457].

Likewise, Province v. Center of Women’s Health (1994) 20 Cal.App 4th 1673, involved a matter where a severely brain-damaged plaintiff (by her mother/guardian ad litem) alleged defendants committed medical malpractice during her birth/delivery. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

At trial, the Province defendant doctors elicited expert testimony from a pathologist who had examined the umbilical cord of plaintiff shortly after birth.

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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.)

Plaintiff’s Opposition to Defendant David Hall’s Motion for Summary Judgement; Memorandum of Points and Authorities in Support Thereof. (CCP § 437c)

This opposition is based on the grounds that the care and treatment provided by defendants was below the standard of care, caused harm, and that triable issues of material fact exists mandating denial of the Motion for Summary Judgment.

These papers will be based upon this Opposition; the attached Memorandum of Points and Authorities; the Separate Statement of Disputed and Undisputed Material Facts; the Declaration of John Brown, M.D.; the Declaration of Michael Jones, Esq.; upon all of the pleadings, papers and files in this matter; and upon such other and further evidence as may be presented at the time of the hearing of this matter.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical malpractice case. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Decedent, Kim Smith developed pregnancy related cardiomyopathy in 2004 and was fitted with a AICD (Automatic Implantable Cardioverter Defibrillator). She had three children – aged 3, 9 and 12 years.

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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.)

California Courts have agreed with this proposition. The factual circumstances in County of L.A. v. Superior Ct. [Martinez](1990) 224 Cal.App. 3d 1446 are similar to the facts herein. In County, plaintiff (mother of child) alleged that defendant physicians had committed malpractice in attending to plaintiff’s delivery of her child and as a result the child suffered severe brain damage.

During discovery, County defendant doctors refused to answer expert questions during depositions arguing that expert testimony was premature since the time in which to serve expert designations under §2034 had not yet run. Plaintiffs Motion to Compel testimony was granted; and defendant doctors appealed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Appellate Court reversed the Trial Court’s Motion to compel and held that defendant doctors not be required to provide expert opinion at subject depositions. In making its decision, the Court stated in pertinent part:

Continue Reading ›

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.)

Defendants’ Notice of Demurrer and Demurrer to Complaint; Memorandum of Points and Authorities in Support

Please take notice and notice is hereby given that defendant, Darren White, M.D., will and hereby does demur to the plaintiffs’ complaint, pursuant to Code of Civil Procedure section 430.10(e), on the following grounds:

The fourth cause of action for negligent infliction of emotional distress by plaintiff Thomas Lee fails to state facts sufficient to constitute a cause of action.

This demurrer is based on this notice, the attached memorandum of points and authorities, the documents, records and pleadings on file herein, and upon such further oral and documentary evidence as may be admitted at the hearing of this demurrer. 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.)

Plaintiff Kim Smith’s Motion in Limine: To Preclude Expert Testimony of Defendant Medical Doctor as an Expert

Plaintiff hereby moves this Court for the following Motion in Limine and Order to preclude Defendants, their counsel, or witnesses from directly or indirectly attempting to introduce into evidence, opening statement or closing argument, the following matters:

TO PRECLUDE EXPERT TESTIMONY OF DEFENDANT MEDICAL DOCTOR AS AN EXPERT

This is a medical malpractice case where physician defendant breached the standard of care. As a result of defendant’s negligence there has been severe injury.

Defendant served a designation of expert witnesses, per Code of Civil Procedure §2034. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

DEFENDANT DID NOT DESIGNATE HIMSELF AS AN EXPERT NOR HAS A DEFENDANT BEEN DEPOSED AS AN EXPERT WITNESS.

C.C.P. §2034(1) states that:

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