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.)

Thus, this is a singular action involving successive acts of alleged medical malpractice causing plaintiff to sustain injuries that are causally interrelated. Under current case precedent, while each injured plaintiff is entitled to seek noneconomic damages, the maximum recovery permitted in any single medical malpractice action is $250,000…” (Yates, supra, 194 Cal.App.3d 195 at 2), italics in opinion.)

A succinct summary of relevant California case precedent interpreting section 3333.2 is found in Colburn v. United States (1998) 45 F.Supp.2d 787. There, the United States District Court (Southern District) issued a detailed order after the United States moved for summary adjudication of various tort claims of the parents of twins who died shortly after birth at Balboa Naval Hospital. (Id. at 788-793.)

As relevant here, the court allowed the following claims to go forward: (1) Mrs. Colburn’s two wrongful death claims for the twins’ deaths based on medical malpractice in treating her prior to their birth (Colburn, supra, 45 F.Supp.2d 787 at 791-793); (2) Mrs. Colburn’s negligent infliction of emotion distress claim (NIED) as a direct victim of the hospital’s negligence (id. at 793); (3) Mr. Colburn’s claim for loss of consortium (id. at 794). Plaintiffs agreed to voluntarily dismiss Mr. Colburn’s NIED and wrongful death claims. (Colburn, supra, 45 F.Supp.2d 787 at 789-790.)

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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 Supplemental Memorandum of Points and Authorities in Opposition to Defendant James Lee M.D.’s, Motion for Summary Judgment, continues below.

If Dr. Stuart is correct then the bleed must have been caused by either Dr. Green’s or Dr. Smith’s conduct during the initial surgery on June 16th or, during the placement of the arterial and femoral line by Dr. Lee on the 24th. Either way, according to Dr. Stuart he did not cause any of the injuries.

The following colloquy is supportive:

Q: Okay. Now here he [Dr. Smith] says in his operative findings: The posterior laceration of the bifurcation of the abdominal aorta and an anterior wall laceration directly behind the first wound of the left common iliac vein. Do you see that?
A: Yes.
Q: Did you cause any of those lacerations?
A: No.
Q: How do you know that?

A: Because I think it would be a – it would be essentially a physical impossibility for me to have done that.

Assuming Dr. Stuart did not cause these injuries, then they had to be caused by either Dr. Smith, Dr. Lee or Dr. Green. At a minimum, Dr. Stuart’s testimony raises a triable issue of fact as to whether or not Dr. Lee caused plaintiffs injuries.

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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 Supplemental Memorandum of Points and Authorities in Opposition to Defendant James Lee M.D.’s, Motion for Summary Judgment
POINT AND AUTHORITIES

The Testimony of Dr. Stuart Raises a Triable Issue of Fact as to Whether Dr. Lee’s Treatment Fell Below the Standard of Care and Was a Substantial Factor in Causing Plaintiff’s Injuries.

To be entitled to summary judgment in his favor, Dr. Lee is required to present evidence that would preclude a reasonable trier of fact from finding it was more likely that not that his treatment fell below the standard of care. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) The testimony of defendant Paul Stuart, M.D., raises a triable issue of fact as to whether the conduct of Dr. Lee was the cause of plaintiff’s injuries.

As set forth in plaintiff’s Opposition to Motion for Summary Judgment, it is undisputed that at some point during his hospital stay plaintiff suffered the following injuries: laceration of the left iliac vein, laceration of the mesentery and small bowel perforation, posterior laceration of the bifurcation of the abdominal aorta and an anterior wall laceration.

Defendant Dr. Stuart’s treatment of plaintiff began on June 19, 2006, when plaintiff suffered from respiratory failure and complications of aspiration pneumonia and a pulmonary embolism. On June 28th, plaintiff’s blood pressure again dropped and a central venous catheter was placed in his groin by Dr. Stuart. It is Dr. Stuart’s opinion plaintiff was already suffering from an internal bleed before he placed the central venous line.

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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.)

[I]t is evident from the terms of the statute that while each injured plaintiff is entitled to seek noneconomic damages, the maximum recovery permitted in any single medical malpractice action is $250,000 … (Yates, supra, 194 Cal.App.3d 195 at 200, italics in opinion.) [Yates was a wrongful death action based on medical malpractice involving six plaintiffs: the widow and five adult children of decedent. Each claimed they sustained injury as a result of the death.]
In upholding the damage cap against plaintiffs’ constitutional challenge, the Yates court relied on the Supreme Court’s prior rulings in Fein v. Permanente Medical Group (1985) 38 Cal.3 137, 158 and American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 368-369.

Plaintiff’s contention that section 3333.2 unconstitutionally abridges the right to a jury trial (Cal.Const., art. I, § 16) is but an indirect attack upon the Legislature’s power to place a cap on damages.

While it is clear section 3333.2 will in some cases result in the recovery of a lower judgment than would have been obtained before the enactment of the statute, it is well established that the Legislature retains broad control over the measure, as well as the timing, of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and that [it] may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest … (italics in original).

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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 Opinion(s) Rendered in Dr. Black’s Declaration Are Not Supported by a Reasoned Explanation and Must Be Rejected

The court stated in Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524, that … an opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment. In Kelley, the defendant moving for summary judgment submitted Dr. Herndon’s declaration, which stated (in pertinent part) as follows:

* Plaintiff suffered a laceration to his left forearm and was treated at UCLA Medical Center on November 25, 1994. Plaintiff testified that his friend Ward contacted Trunk later that day because he had not been given a prescription for the analgesic medication that had been provided while in the UCLA Emergency Department. Trunk, who was covering [calls] for Dr. Berkowitz, provided a prescription for Tylenol with codeine (the same medication the patient had previously been given by Dr. Char at UCLA) and advised that [plaintiff] should be sure to follow up with his primary care physician, Dr. Berkowitz, as instructed by Dr. Char prior to leaving the Emergency Room. Plaintiff placed a call to Trunk later that same day and, upon reporting his status, was again advised of the need to follow up with Dr. Berkowitz. Plaintiff had no further contact with Dr. Trunk.

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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.

DEFENDANTS HAVE FAILED TO CARRY THEIR BURDEN OF PROOF
Defendants Have the Initial Burden of Proving That They Were Not Negligent and That There Is No Causation

The initial burden of proof placed on a defendant seeking summary judgment was described in Bushling v. Fremont Medical Center (2004) 117 CA4 493, 506-507:

Where … a defendant moves for summary judgment and the plaintiff bears the burden of proof by a preponderance of the evidence at trial on the issues that are the subject of the motion, the defendant initially “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not … ” (Aquilar, supra, 25 Cal.4th at p. 8951.)

More specifically, a moving defendant must make a prima facie showing that the plaintiff does not possess, and cannot reasonably obtain, sufficient evidence to establish at least one element of plaintiff’s cause of action. (Id. at p. 854.) If a defendant has met that burden, the plaintiff must then present evidence that would allow a reasonable trier of fact to find in his favor more likely than not. (See id. at p. 852.) If the court determines that the evidence presented by the plaintiff and all of the reasonable inferences drawn therefrom show one or more of the elements of the cause of action only as likely as, or less likely than, an absence of one or more of those elements, it must grant a defendant’s motion for summary judgment. (See id. at p. 857.)

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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.)

Trial Brief of Defendant Paul Stuart, M.D., Re: MICRA Cap (Civil Code Section 3333.2)

INTRODUCTION

This lawsuit involves alleged successive instances of medical malpractice by the defendant medical providers. Plaintiff claims he sustained two injuries: a laceration to the posterior bifurcation of [his] abdominal aorta and injury to the left common iliac vein.

Under the MICRA cap, plaintiff is entitled to recover no more than $250,000 in noneconomic damages with defendants’ potential fault liability apportioned between the original/subsequent treaters.

MEMORANDUM OF POINTS AND AUTHORITIES

PLAINTIFF’S MAXIMUM RECOVERY FOR NONECONOMIC DAMAGES IS $250,000.

Civil Code section 3333.2 provides:

(a) In any action for injury against a health care provider based on professional negligence, the plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage; (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000);

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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.)

Use of the res ipsa loquitur doctrine is especially suited to a medical or dental malpractice setting in which an unwitting and often unconscious or semi-conscious patient is at an evidentiary disadvantage because of his or her inability to demonstrate what occurred in the hospital or surgical room setting. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 945.) In this case, Plaintiff was unconscious at the time he sustained these injuries and cannot say with a reasonable degree of probability which defendant was negligent. However, it is undisputed he was injured. As affirmed by Dr. Chin, the type of injuries sustained by Plaintiff do not occur where due care is used and the proper practice is followed.

With respect to the issue of control, the Supreme Court in Ybarra v. Spangard (1944) 25 Cal.2d 486, held, because “[t]he control at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant … this, we think, places upon them the burden of initial explanation … It should be enough that the plaintiff can show an injury resulting from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make. ” (Id. at pp. 492-493.) As discussed above, plaintiff’s injuries were caused by surgical instruments within the exclusive control of the defendants.

Plaintiff is therefore entitled to the res ipsa loquitur presumption and the burden is shifted to Dr. Lee to produce evidence which proves he was not negligent in his treatment and care of Plaintiff. Plaintiff has met his burden to show the legitimacy of the issues raised in his pleadings. Public policy favors a trial on the merits and a determination by the jury on the contested issues of material fact.

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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 Injury Is Not the Type That Occurs Absent Negligence on the Part of the Defendants. Thus, the Burden of Persuasion Shifts to Dr. Lee to Come Forward with Evidence to Disprove His Negligence.

During the course of the cholecystectomy and the subsequent treatment by the Defendants in this matter, Plaintiff sustained the following injuries: laceration of the left iliac vein, laceration of the mesentery and small bowel perforation, posterior laceration of the bifurcation of the abdominal aorta and, an anterior wall laceration. (See Dr. Green’s June 16, 2006, Operative Report; see also, Dr. Smith’s Operative Report, June 28, 2008.) The injuries discovered on the 28th to the abdominal aorta and iliac vein are iatrogenic injuries (instrument caused), which do not occur absent someone’s negligence.

Although all the defendants in this case deny their own culpability, each admits that these injuries were iatrogenic. Thus, plaintiff is entitled to a res ipsa loquitur presumption and the burden shifts to the defendants to produce evidence which establish they did not cause one, or all, of plaintiff’s injuries.

The foundational or basic facts of the res ipsa loquitur presumption are well established. They are that the injury (1) is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) is caused by an agency or instrumentality within the exclusive control of the defendant; and (3) is not due to any voluntary action or contribution on the part of the plaintiff… (Slater v. Kehoe (1974) 38 Cal.App.3d 819, 829; Ybarra v. Spangerd (1944) 25 Cal.2d 486, 490.) When these prerequisites are met, the trier of fact is allowed to assume existence of presumed fact unless defendant introduces evidence to contrary. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943.)

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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.)

A medical report does not meet the requirements of the business records exception. The report was not made in the regular course of business. There is no evidence that a report is made for each patient. In fact, it is clear that some reports were prepared not for the doctor but, in this case, “to whom it may concern.”

The reports cannot qualify as a business record because there is no indication whatsoever that the reports were made at or near the time of the act, condition or event. In fact, the medical reports are prepared long after any treatment or care was rendered to the plaintiff. It is clear that the reports were prepared at or near the conclusion of treatment.

Furthermore, unless the custodian of records of the physician testifies as to the identity and mode of preparation of the medical reports, the reports are also inadmissible as hearsay.

Additionally, the business record exception pertains to a record of an act, condition or event. Any diagnostic opinion or opinion as to prognosis is not a statement of an act, condition or event.

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