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 present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

We are, of course, aware of what has been termed a “crisis” in the availability and costs of medical malpractice insurance. Available information indicates that this crisis has affected obstetricians keenly. Such adverse effects have been documented specifically in California. In light of these observations, we realize the imposition of liability in cases such as the one at hand may impose certain societal costs. For several reasons, however, we believe that the impact of our decision recognizing Burgess’s claim against Gupta for damages for emotional distress will not unduly burden the community or health care providers in the field of obstetrics or result in the imposition of damages disproportionate to fault.

First, our Legislature has taken action to alleviate the “crisis” in medical malpractice liability and insurance by enacting the Medical Injury Compensation Reform Act of 1975 … (hereafter MICRA). As a result of MICRA, the amount of noneconomic damages, such as damages for emotional distress, that may be recovered in an action arising from the professional negligence of a health provider is capped at $250,000. (Civ. Code, § 3333.2.) 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 present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

On or about June 19, 2006, plaintiff experienced respiratory distress and underwent a CT pulmonary angiogram which revealed a large right pulmonary arterial embolus. An IVC filter was placed by radiologist Dr. Rich without complications.

On June 24, 2006, plaintiff experienced a profound drop in blood pressure and bright red blood was noted to be coming from his NG tube. He continued to have trouble breathing and a code blue was called. Advanced cardiac life support was started and plaintiff was transfused with fresh-frozen plasma. Dr. Lee was doing rounds of the ICU unit and noted plaintiff was actively bleeding and in shock with critical blood pressure. Dr. Lee placed resuscitation lines in plaintiff’s groin, at his bedside. Specifically, he placed a femur arterial line to allow for monitoring of blood pressure, and a femoral venous line to allow for rapid blood infusion.

Gastroenterologist Dr. Sandrina Ward was called to see plaintiff emergently and conducted an upper endoscopy in an attempt to locate the bleeding source. The endoscopy revealed large amounts of clot within the stomach and duodenum, however, no obvious ulcers or source of bleeding could be found. Plaintiff was then taken to the operating room for an exploratory surgery. The surgery was performed by Dr. Green with the assistance of Dr. Lee. It was discovered that plaintiff had a large hemoperitoneum, the majority of which comprised an old clot in the mid portion of his abdomen and pelvis.

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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 medical malpractice/personal injury case and its proceedings.)

There appears to be no federal common law on the issue of when a contractual waiver of a jury trial will be considered to be knowing and voluntary. At least none is cited by the defendants. In the absence of such federal common law, the law of the state in which the contract arose is to be applied under the foregoing principles.

California law has traditionally required those seeking to enforce the waiver of a fundamental right to meet strict criteria. Waiver requires a voluntary act, knowingly done, with sufficient awareness of the relevant circumstances and likely consequences. There must be actual or constructive knowledge of the existence of the right to which the person is entitled. The burden is on the party claiming a waiver to prove it by evidence that does not leave the matter doubtful or uncertain and the burden must be satisfied by clear and convincing evidence that does not leave the matter to speculation. In Re: Marriage of Moore (1980) 113 Cal.App. 3rd 22, 27.

Such a burden should not be placed on a plaintiff pursuing his or her rights in a personal injury case in the state of California.

Defendants seem to argue that some unidentified law, other than California’s, allows a waiver of an important constitutional right such as a jury trial even if the person against whom the waiver is sought to be enforced did not waive that right knowingly or willingly. It is difficult to imagine that any body of law supports such a position. To simply argue, as Universal Plan does, that federal law favors arbitration begs the question. That question is: Where is there any evidence of a literal and knowing waiver and what body of law will impose a waiver where there is an absence of such evidence?

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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 present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

In Burgess, Julia Burgess filed a medical malpractice action against obstetrician Gupta and a hospital after her child suffered permanent brain and nervous system damage during delivery. Defendants moved for summary adjudication of the mother’s NIED claim. They argued that the mother could not recover damages for emotional distress because she did not contemporaneously observe the baby’s injuries as required for recovery in a bystander situation. (Burgess, supra, 2 Cal.4th 1064 at 1069-1071.)

The trial court granted defendants’ motion. The appeal court vacated the order on a writ of mandamus. The Supreme Court modified the appeal court opinion, holding: Burgess is permitted to recover damages as a result of the breach of the duty of care arising from the physician-patient relationship between Gupta and Burgess. Gupta’s negligent breach of this duty is sufficient to satisfy the elements of a claim alleged for professional malpractice on Burgess’s behalf. (2 Cal.4th 1064 at 1078. )

The precise question in Burgess was:

Can a mother recover damages for negligently inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of delivery? (2 Cal.4th 1064 at 1069.)

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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 present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Defendant James Lee, M.D.’s, Memorandum of Points and Authorities in Support of Michael Lee M.D.’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication
STATEMENT OF FACTS AND SUMMARY OF ARGUMENT

The series of events that culminated in plaintiff Sean Black’s filing of a Complaint for Medical Negligence and Failure To Provide Informed Consent, began on June 16, 2006. On that day plaintiff presented to Universal Surgery Center for a laparoscopic cholecystectomy. After insertion of the bladed trocar by surgeon and co-defendant Dr. Green, a pooling of blood was noted in plaintiff’s pelvic area. The blood was aspirated and its origin was found to be a tear in the mesentery, possibly caused by insertion of the bladed troca. There appeared to be no active bleeding following aspiration.

Vascular surgeon and co-defendant Dr. Smith was summoned for a vascular consultation. Dr. Smith appeared with his partner in vascular surgery and the moving party herein, Dr. Lee, but found there was no additional bleeding. Thereafter, Dr. Green continued with the procedure and removed the gallbladder without complication. Following its removal, Dr. Smith identified aid repaired a laceration in the left iliac vein. Dr. Green then ran the bowel and noted a very small injury to the mesentery which he repaired.

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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 medical malpractice/personal injury case and its proceedings.)

Attached hereto as Exhibit 1 is a true and correct copy of the Burks v. Kaiser case with the appendix attached to that opinion, which is a copy of the alleged arbitration waiver form which was held unenforceable by the Burks Court. A comparison of that document with Exhibit C attached to the Notice of Universal Plan Defendants’ Petition to Compel Arbitration and Stay Action shows that they both suffer from the same defect in that the arbitration language is not prominently displayed as required by Section 1363.1.

Because of the defects in the putative arbitration election form at issue, Universal Plan argues that Section 1363.1 and Burks v. Kaiser Plan are inapplicable because federal Medicare statutes preempt state law.

However, defendants’ preemption argument does not prove that Ms. Smith made a knowing waiver of her right to a jury trial in her medical malpractice suit. Whether a provision in a contract will or will not be considered a valid waiver must be determined according to state substantive law.

All that the defendants’ argument amounts to is that federal law will preempt state law to the extent they conflict. The defendants do not inform this court as to which body of substantive law this Court should apply to make the determination as to whether the waiver was valid. Notably, the defendants do not point to the existence of federal substantive or common law governing the subject.

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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 present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Neither the California Supreme Court nor the appellate courts have ever held that a single plaintiff car recover more than the MICRA limit for noneconomic damages. To the contrary, the courts have consistently limited the maximum recovery to $250,000, regardless of the number of claims alleged. See Fein v. Permanente Med. Group, 38 Cal.3d 137, 157-164[](1985) a reduction of noneconomic damages to $250,000 when multiple diagnostic errors occurred); Atkins v. Strayhorn, 223 Cal.App.3d 1380, 1394 [ (1990) (limiting a husband and wife to $250,000 each for noneconomic danages); Under section 3333.2, the injured plaintiff’ is entitled to recover noneconomic losses up to $250,000 [i]n any action for injury against a health care provider based on professional negligence.

In addition to Owren being an injured plaintiff, Eileen is also an injured plaintiff, having been awarded damages for loss of consortium. Although her cause of action arises from bodily injury to her husband, the injury suffered is personal to her. “Loss of her husband’s consortium impairs a wife’s interests which are wholly separate and distinct from that of her husband: … the wife’s loss is just as real as it is distinct. She can no longer enjoy her legally sanctioned and morally proper privilege of copulation or procreation, and is otherwise deprived of her full enjoyment of her marital state. These are her rights, not his.”

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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 medical malpractice/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

THE DECLARATION OF RANDALL BROWN, M.D., CLEARLY ESTABLISHES THAT DEFENDANTS WERE NEGLIGENT AND THAT DEFENDANTS’ NEGLIGENCE PROXIMATELY CAUSED INJURY TO PLAINTIFF

Even though plaintiff should have no obligation to present any evidence since defendants have failed to carry their initial burden of proof, nevertheless plaintiff submits the declaration of Randall Brown, M.D. Dr. Brown has several specific criticisms of Dr. Lee’s level of care and treatment, and he ties these criticisms specifically to the medical history.

First, Dr. Brown has declared that the augmentation surgery was scheduled too soon after Ms. White had given birth, and that this was below the standard of care. The surgery was scheduled only six months after Ms. White had stopped breast feeding her baby.

Second, Dr. Lee advised Ms. White to daily massage her breasts following the augmentation surgery; this was below the standard of care as massaging stimulated milk production.

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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 medical malpractice/personal injury case and its proceedings.)

Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendants’ Petition to Compel Arbitration and Stay Action

Defendants seek to enforce a purported arbitration clause in a written contract between plaintiff Summer Smith and the Universal Plan entities. Under California law, the alleged arbitration agreement signed by Ms. Smith and attached as Exhibit C to defendants’ moving papers is not enforceable. Burks v. Kaiser (2008) 160 Cal.App. 4th 1021 dealt with an analogous situation. In that case, the plaintiff in a medical negligence or malpractice lawsuit against Universal Plan had signed an enrollment application form which contained language purporting to constitute a waiver of the plaintiff’s right to pursue a civil action and as agreement that the matter being resolved through Universal Plan’s arbitration plan.

The court, citing Health and Safety Code §1363.1, held that the purported waiver was unenforceable. Because the arbitration language was not prominently displayed as that term was defined in the statute, Universal Plan’s petition to compel arbitration was denied. Despite the clear holding of that case. Universal Plan as the moving party in this motion, asserts that Ms. Smith’s purported waiver complies with California law because the arbitration disclosure is prominently displayed directly above plaintiff’s signature. However, the Burks Court rejected such an argument in plain language:

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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 medical malpractice/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Four of the twenty-one paragraphs in the declaration set forth Dr. Black’s background and the records he reviewed. The next thirteen paragraphs dryly recite passages from the medical records which show that some truly awful things occurred to plaintiff immediately following the breast augmentation surgery:

* Her right breast started lactating;
* As of June 14, 2005 (nine weeks following the surgery) plaintiff had been suffering breast pain and lactation for seven weeks;
* Plaintiff had an adverse reaction to a medication intended to dry up the milk production and ended up in the emergency room;
* The implants had to be removed on June 27, 2005, and during that procedure Dr. Lee found 500 cc of milk in the right breast and 350 cc in the left;
* The breast fluid was found to contain staphylococcus;
* In early July, Dr. Lee removed the drains because they were no longer draining, yet on July 11 plaintiff was found to still have milk drainage;
* Plaintiff consulted with another physician on July 15, who found possible infection which he aspirated, with immediate relief;
* Plaintiff nevertheless was seen in the emergency room soon after, running a fever of 104, and milk continued to drain;
* Another surgery was required on July 18, during which more milk was found in each breast, and scar tissue was found;

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