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 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 THE BURDEN OF PROVING THAT THEY HAVE A COMPLETE DEFENSE OR THAT ONE OR MORE ELEMENTS OF PLAINTIFF’S CAUSE OF ACTION FOR MALPRACTICE CANNOT BE ESTABLISHED

As the Court is aware, a defendant moving for summary judgment must show either that there is a complete defense to the cause of action, or that one or more elements of the cause of action (for medical negligence) cannot be established. Code of Civil Procedure section 437c(o)(2). A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of plaintiff’s allegations as a matter of law. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.

A defendant moving for summary judgment must show it is entitled to judgment with respect to all theories of liability asserted by the plaintiff. Lopez v. Superior Court (Friedman Bros. Inv. Co.) (1996) 45 Cal.App.4th 705, 717.

The moving party has the burden of establishing evidentiary facts sufficient to entitle that party to a judgment as a matter of law. Code of Civil Procedure section 437c(c); Vesely v. Sager (1971) 5 Cal.3rd 153, 169. The moving party’s evidence is strictly construed in determining whether an essential element of the claim has been negated.

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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.)

MOTION IN LIMINE RE: INADMISSIBILITY OF PLAINTIFF’S EXPERT MEDICAL REPORT
INTRODUCTION

Any medical report sought to be introduced by plaintiff is inadmissible as hearsay and lacks sufficient foundation.

THE REPORT OF AN EXPERT IS NOT ADMISSIBLE INTO EVIDENCE

The report of an expert is not admissible into evidence. Expert reports are hearsay evidence since they contain statements that were made other than by a witness while testifying at a hearing.

Evidence Code Section 1200 provides:

(a) Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that if offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible.

Expert reports are not made admissible by the business records exception to the hearsay rule.

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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 is a Triable Issue of Fact as To Whether Dr. Lee’s Negligence Was a Substantial Factor in Causing Plaintiff’s Injuries.

On June 24th Plaintiff was found to have suffered a massive bleed in his abdomen. Earlier in the day, Dr. Lee placed an arterial and femoral line in plaintiff’s groin to measure his blood pressure and rapidly infuse blood. The line is placed using a guide wire which is inserted in the groin and up the iliac vein approximately 15-20 centimeters into the area of the bifurcation of the aorta. A hard rigid catheter is placed on top of the guide wire which, if erroneously placed, can cause injury to the aorta. Assuming during the placement of these line, Dr. Lee lacerated the posterior wall of the abdomen aorta and the adjacent area of the left common iliac vein, it would be a breach of the standard of care and a substantial factor in causing plaintiff’s injuries. Dr. Lee has presented no conclusive evidence confirming that his placement of the line did not cause injury.

Dr. White’s declaration fails to adequately address the manner or method by which Dr. Lee placed the lines. Dr. White simply states that had Dr. Lee caused these injuries, plaintiff’s condition would have rapidly deteriorated, thus, Dr, Lee could not have caused the injuries. What Dr. White ignores is the fact that following the surgery on the 24th, Plaintiffs condition did deteriorate, he almost died. The injuries sustained by Plaintiff do not occur in the absence of someone’s negligence and there is a question of fact as to whether or not it was Dr. Lee’s negligent placement of the lines caused the injuries.

However, even assuming Dr. Lee did not cause the injuries, as the vascular surgeon taking part in the laparotomy on the 24th, Dr. Lee was responsible for determining the source of the hemorrhage, including ruling out injury to the abdominal aortic bifurcation and the anterior wall of the left common iliac vein.

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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.

Plaintiff, Annette White, through her attorney of record, presents her memorandum of points and authorities and declaration of Randall Brown, M.D., in opposition to the motion for summary judgment filed by defendants John Lee, M.D., and John Lee, M.D., INC.

Plaintiff respectfully submits that the motion must be denied. Defendants have not carried their initial burden and have failed to present sufficient evidence to show there is no triable issue of material fact as the declaration of Donald Black, M.D., filed in support of the motion is hopelessly vague and provides no basis for, or explanation of, the opinions expressed.

Plaintiff requests that the motion be denied.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical negligence action wherein plaintiff alleges that defendants were negligent in the performance of breast augmentation surgery and in the provision of follow-up care. As a result, it is alleged that plaintiff sustained serious personal injury. A breach of contract cause of action is also stated, based on the allegation that defendants breached their promise to provide their services in a safe and competent manner.

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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.)

DR. STUART

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, plaintiffs blood pressure again dropped and right femoral venous lines were placed by Dr. Stuart. If Dr. Stuart caused injury to the left common iliac vein during the course of these placement of the femoral venous lines and/or caused a puncture/laceration to the aortic bifurcation it was below the standard of care and a substantial factor in causing plaintiff’s second set of injuries.

DAMAGES

As a result of defendants’ negligence plaintiff required multiple surgeries, a 35-day stay in the hospital and, he will require future care to treat his residual injuries. His future care includes the continued monitoring for deep vein thrombosis and the need to take Lovenox as a prophylactic each time before flying in an airplane. Additionally, plaintiff will need to wear a compression stocking to control the swelling in his legs for the remainder of his life. Dr. Green’s expert, Dr. Kim, believes he will require future surgery.

It is not presently known whether health issues will arise from lymphodema in his left leg, and/or his inc reased blood clot risk, or other medical conditions arising out of the defendant’s care. Although the cost of his future care has not yet been determined, his past medical expenses total $601,150.12. Defendants caused this $601,150.12 in damages that were paid by plaintiff’s insurance for the harm they caused. Plaintiff’s health coverage was provided by the federal government, a collateral source. The defendants are responsible for this economic loss.

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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.)

Assuming For Argument’s Sake That This Court Finds That Dr. Lee Has Met His Initial Burden of Proof, Plaintiff Has Demonstrated The Existence of A Triable Issue of Material Fact as to Negligence and Causation.

As set forth above, only if defendant is successful in meeting his burden of proof does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, citing Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) The evidence of the party opposing the motion must be liberally construed. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal. App.4th 184, 189.)

Assuming for the sake of argument that Dr. Lee did meet this burden, the burden of proof then shifts to plaintiff, who has made a prima facie showing of the existence of a triable issue of material fact through the declaration of his expert, vascular surgeon Keith Chin, M.D. Thus, a triable issue of fact exists as to whether or not Dr. Lee’s conduct fell below the standard of care and whether that conduct was a substantial factor in causing plaintiff’s njuries.

There Is a Triable Issue of Fact as to Whether Dr. Lee’s Conduct Fell Below the Standard of Care.

As a Board Certified General Surgeon with a fellowship in vascular surgery, Dr. Chin is intimately familiar with the anatomy of the abdominal and thoracic cavities, including the management of diseases and trauma affecting all parts of the vascular system, arteries and veins, except that of the heart and brain, and the standard of care required by a vascular surgeon. Dr. Chin’s opinions are substantiated by the evidence, including plaintiffs medical records and the deposition testimony of Dr. Green, Dr. Smith, Dr. Lee, Dr. Stuart, and Dr. Stein.

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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.

(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.)

PROPOSED SPECIAL INSTRUCTION

In lieu of CACI 430, Defendants request the following instruction regarding causation be given to the jury:

Causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. Jones v. Ortho Pharmaceutical Corp (1985) 163 Cal.App.3d 396, 402-403.

This instruction not only accurately reflect the necessity of competent expert testimony in proving causation as required by Bromme, Id., Landeros, Id., Jambazian, Id., and Jones, Id., it also reflects the requirement that causation must be proven within a reasonable medical probability which is an accurate reflection of the current law governing the elements of causation in a medical negligence action.

CONCLUSION
Based upon the foregoing, Defendants respectfully request that the jury be instructed with the following special jury instruction concerning causation in lieu of CACI 430:

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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.)

The court in Johnson v. Superior Court, supra, confirmed the Kelly court’s holding and rationale. It held: [A]n expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Ciation.] (Johnson v. Superior Court, supra, (2006) 143 Cal.App.4th 297, 308.)

As in Kelly and Johnson, supra, Dr. Lee submits the declaration of Dr. White in support of his motion for summary judgment. Dr. White concludes Dr. Lee’s conduct was within the standard of care. However, Dr. White’s declaration consists solely of legal conclusions, is unsupported by adequate factual underpinnings, and is therefore deficient. Dr. White’s declaration fails to address Dr. Lee’s affirmative duty, as a vascular surgeon, to inspect, discover and repair all the sources of bleeding.

Dr. White acknowledges Plaintiff had a laceration of the bifurcation of the abdominal aorta and an anterior wall laceration; however, he ignores the fact that Dr. Lee failed to identify these lacerations during the surgery on June 24th. Dr. White offers no explanation as to when, if not on the 16th or the 24th, these injuries occurred. Further, Dr. White offers no explanation as to how these injuries occurred or who, if not Dr. Lee, caused them. Or, if Dr. Smith, Dr. Green or Dr. Stuart caused the injuries, then why did Dr. Lee fail to discover them? Moreover, Dr. White fails to discuss how the procedures employed by Dr. Lee, including but not limited to the placement of the arterial and femoral lines, could not have caused plaintiff’s injury, he simply concludes it did not.

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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.)

DR. SMITH

During the course of plaintiff’s surgery on June 16th, Dr. Smith placed surgical clamps in the area of the bifurcation of the abdominal aorta. As the vascular surgeon it was Dr. Smith’s obligation and duty to place these clamps in a manner which did not cause injury to plaintiff. If Dr. Smith caused injury to either the aorta at its abdominal bifurcation or the left common iliac vein via the placement of the surgical clamps, his conduct fell below the stand ird of care and was a substantial factor in causing plaintiff a separate injury. Dr. Smith has presented no evidence that his placement of the clamps did not cause injury.

However, even assuming Dr. Smith did not cause the injuries, he had an obligation and duty to inspect the area of the bifurcation of the abdominal aorta during the initial surgery to discover and immediately repair any and all additional sources of injury or bleeding. Dr. Smith’s failure to discover and repair one of both of these injuries was below the standard of care and was a substantial factor in causing plaintiff’s injury.

Although he seeks to blame Dr. Green, Dr. Smith was below that standard of care by not finding the bowel injury. Even his own expert admits this was a joint responsibility
DR. LEE
On June 24th, plaintiff was believed to have suffered a gastrointestinal bleed. On that day, Dr. Lee placed an arterial and femoral line in plaintiff’s groin to measure his blood pressure and rapidly infuse blood.

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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.

(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.)

CACI 430 IS AN INCOMPLETE STATEMENT OF THE LAW REGARDING THE STANDARD OF PROOF FOR CAUSATION IN A MEDICAL NEGLIGENCE ACTION

CACI 430 defines causation as more than a remote or trivial fact. This, however, is not the correct definition of causation in a medical malpractice action. Pursuant to case law, causation in a medical malpractice action, must be shown to a reasonable medical probability. Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208. Further, the evidence must be sufficient to allow a jury to infer that in the absence of the defendant’s negligence there was a reasonable medical probability that the plaintiff would have obtained a better result. Id. at 216.

Accordingly, based upon the above argument regarding causation, CACI 430, which defines substantial factor only as a factor that a reasonable person would consider to have contributed to the harm or more than a remote or trivial fact fails to address the necessary reasonable medical probability, and as such, is inherently misleading, incomplete, and a misstatement of the applicable law on causation for this matter.

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