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.)

Defendant Has Failed to Meet His Burden of Proof, the Evidence Presented Does Not Preclude the Trier of Fact from Finding That it Was More Probable than Not That His Treatment Fell below the Standard of Care.

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 proximate 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.) The standard of care in a medical malpractice case is a matter peculiarly with in the knowledge of experts. (Sinz v. Owens (1949) 33 Cal.2d 749, 753.) Thus, expert testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation] unless the negligence is obvious to a layperson. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)

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 than not that his treatment fell below the standard of care. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297,305.) Dr. Lee has failed to present any such evidence. In support of his motion Dr. Lee submitted a declaration from vascular surgeon Robert White, M.D. However, Dr. White’s declaration fails to provide any factual basis or explanation for his opinions. Pursuant to Kelley v. Trunk, an expert declaration must provide more than just the ultimate conclusion. (Kelley v. Trunk, supra, 66 Cal.App.4th at p. 524.)

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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.)

CAUSATION

As discussed above, the type of injuries suffered by plaintiff do not occur in the absence of negligence. It is undisputed, even by defendants own experts that one, some, or all, of the defendants caused plaintiff’s injuries. Dr. Stanley Kim, who was retained by Dr. Green testified at deposition:

Q: So more probable than not that an instrumentality under the exclusive control of Dr. Green, Dr. Smith, Dr. Lee or Dr. Stuart caused the injury to the bifurcation of the aorta, correct?

A: Yes.

DR. GREEN

Dr. Green’s placement of the first trocar or Veres needle during the initial surgery caused multiple vascular injuries, including a laceration to the left iliac vein, a laceration to the mesentery and small bowel. Dr. Green was below the standard of care in causing these injuries.

Dr. Kim, Dr. Green’s retained expert, testified these injuries are not suppose to happen.

Q: you’re not suppose to injure the vein, are you?
A:. No.
Q: You’re not suppose to injure the mesentery, correct?
A: No. That’s not the intent of the operation.
Q: And you’re not suppose to injure the bowel correct?

A: That’s correct.

The same response was given for the injuries to the mesentery and the bowel.

Dr. Kim confirmed these injuries were caused by Dr. Greenu’s placement ent of the trocar
Q: Tell me how the vein injury was caused.
A: Most likely be the insertion of the trocar.

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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.)

The Simmons court eloquently stated its rationale behind its holding: Under the facts of this case, we declined to establish a more lenient standard of causation. To do so, would be contrary to sound logic, legal precedent and public policy. It would unwisely encourage costly and unreasonable over-testing and over-treatment for defensive purposes. Physicians would find it necessary to place the requirements of the legal system before the need and the finances of the patient. In addition, the physicians’ increased exposure to liability would adversely impact already high medical malpractice premiums, resulting in an upward spiral of consumer costs. The uncertainty fostered by such a ruling would undoubtedly open the proverbial flood gates of our overburdened judicial system. Id. at 705-706.

Likewise, in Jennings v. Palomar (2003) 114 Cal.App.4th 1108, the Court held that proof that a negligent act was a substantial factor in causing the injury to plaintiff did not relieve plaintiff from the burden of proving defendant’s negligence was the cause-in-fact of plaintiff’s injury. Therefore, although Plaintiff need not eliminate any possibility that Defendants’ conduct was not a cause of Plaintiff’s injury, she must introduce evidence from which reasonable people may conclude that it is more probable than not that the her alleged injury of Complex Regional Pain Syndrome was caused by the Defendants.

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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.)

POINT AND AUTHORITIES

Defendant Has the Burden of Persuasion That There Is No Triable Issue of Material Fact, and That He Is Entitled to Judgment As a Matter of Law.

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).]

In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, the California Supreme Court clarified the parties’ burdens on a summary judgment motion as follows:

[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law…. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof…. A defendant bears the burden of persuasion that “one or more elements of the cause of action” in question “cannot be established,” or that “there is a complete defense” thereto.
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at p. 850, fns. omitted; Code of Civil Procedure § 437c, subd.(o)(2).)

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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.)

LIABILITY

Liability is clear. During the course of the cholecystectomy and the subsequent treatment by the defendants in this matter, plaintiff sustained the following injuries: 1) laceration of the left iliac vein, 2) laceration of the mesentery, 3) small bowel perforation, 4) a posterior laceration of the bifurcation of the abdominal aorta, and 5) an anterior wall laceration of the left iliac vein. These iatrogenic injuries (instrument caused) do not occur absent someone’s negligence.

Although all the defendants in this case deny their own culpability for injuries to the aorta and adjoining iliac vein, each admits that all injuries were iatrogenic and they had to be caused by one of them. As set forth more fully in the motion filed concurrently herewith, plaintiff is entitled to a res ipsa loquitur presumption and the burden must shift to the defendants to produce evidence which establishes they did not cause one, or any, of plaintiff’s injuries.

THE SECOND ACT OF NEGLIGENCE IS A SECOND CAUSE OF ACTION
Although plaintiff suffered multiple injuries when Dr. Green placed the original trocar in the iliac vein, the mesentery and the small bowel, which commutatively giv e rise to one general damage award of the $250,000 MICRA cap, Plaintiff suffered two totally separate injuries from potentially separate acts of negligence giving rise to a second and third $250,000 cap. Indeed had Plaintiff so chosen he could have brought a separate lawsuit for the injury to his abdominal aorta and for the left iliac vein. See (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848,1854. Each time a separate and distinct wrongful act causes this injury a separate cause of action arises because a separate right has been violated.)

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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.)

The court very effectively discusses the proximate causation requirement which Plaintiffs must meet: We find persuasive on this issue the following discretion and standard from Cooper v. Sisters of Charity of Cincinnati, as set forth in the brief of respondents:

Traditional proximate cause standards require that the trier of facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act in the absence of any intervening cause. Lesser standards of proof are understandably attractive in malpractice cases where physical well-being and life itself are subject to litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that an action for wrongful death, an injured person would be compensated for the loss of any chance of survival regardless of the remoteness.

However, we have trepidations that such a rule would be so loose, that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based on proof of causation by evidence not meeting the standard for probability, we are not persuaded by their logic … we consider the better rule to be that in order to comport with the standard of proof and proximate cause, plaintiff in a malpractice case must prove that defendant’s negligence, and probability, proximately caused the damages.

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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 vehicle accident/medical malpractice case and its proceedings.)

CAUSATION MUST BE PROVEN WITHIN A REASONABLE MEDICAL PROBABILITY

As the court is aware, in personal injury cases, the plaintiff must prove that the defendant’s culpable conduct was the proximate cause of the Plaintiff’s injuries. “Proximate” or “legal” cause adds to the requirement that the defendant’s culpable conduct be the actual cause of the plaintiff’s injury. Accordingly, the Plaintiff should be precluded from recovery when the causal relationship between the defendant’s conduct and the plaintiff’s injury does not justify imposing tort responsibility on the defendant.

To that end, the law in this state is well settled that in a personal injury action, causation must be proven within a reasonable medical probability based upon competent expert testimony. Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396,402. Mere possibility alone is insufficient to establish a prima facie case. Id. at 403. To that end, there can be an infinite number of causes and circumstances which can produce injury or disease, however, a possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of Defendants’ action. Bromme v. Pavitt (1992) 5 Cal.App.4th 1487.

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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.)

June 28,2006: Hemorrhagic Shock and Cardiac Arrest

On June 28th, plaintiff’s blood pressure again dropped and he was diagnosed with another massive abdominal bleed. A central venous catheter was placed in his groin by Dr. Stuart. A third emergency surgery was performed by Dr. Green, Dr. Smith and Dr. Lee. A major hemoperitoneum was discovered with over five liters of blood intraperitoneally in the abdomen. It was not until the surgery on the 28th that Dr. Smith and Dr. Lee finally discovered the source of bleeding, a laceration at the posterior aspect of the a bifurcation and an associated kissing laceration of the left common iliac vein. The two lacerations were repaired and the abdomen was left open. Two days later, another laparotomy was performed and plaintiff’s abdomen was closed.

What was thought to be an outpatient procedure turned into a 35-day stay in ICU with multiple complications and two near death experiences. Plaintiff was finally released from the hospital on July 21, 2006, totally disabled.

SUMMARY OF ARGUMENT
Defendant, Dr. Lee’s Motion for Summary Judgment must be denied based upon the following:
1) Defendant has failed to meet his burden of proof, the evidence presented does not preclude the trier of fact from finding that it was more probable than not that his treatment fell below the standard of care;

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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.)

June 28, 2006: Hemorrhagic Shock and Cardiac Arrest

On June 28th, Plaintiffs blood pressure again dropped. Right femoral and venous lines were placed in his groin by Dr. Stuart. A third emergency surgery was performed by Dr. Green and Dr. Smith. A major hemoperitoneum was discovered with over five liters of blood intraperitoneally in the abdomen. It was not until the surgery on the 28th that Dr. Smith and Dr. Green finally discovered the source of bleeding, two totally separate injuries, a laceration at the posterior aspect of the aortic bifurcation and an associated kissing laceration of the left common iliac vein. The two lacerations were repaired and the abdomen was left open.

These injuries were four to five centimeters away from the first series of injuries. Two days later, another laparotomy was performed and plaintiff’s abdomen was closed. These newly discovered injuries could have been caused from two separate events and certainly were caused by separate instrumentalities then that which lacerated plaintiff’s iliac vein, mesentery, and small bowel on June 16th. As such, they are subject to two additional general damage recoveries, each in a separate amount not to exceed $250,000.

What was thought to be an outpatient procedure turned into a 35-day stay in ICU with multiple complications, two near death experiences and months of recuperation. Plaintiff was finally released from the hospital on July 21, 2006, totally disabled. (See Part 5 of 8.)

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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.)

June 24,2006: Massive Bleed and Cardiac Arrest
Eight days after the initial surgery, plaintiff suffered a dramatic drop in blood pressure, was bleeding from his nose, and had a severe GI bleed. 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.

Gastroenterologist, Sandrina Ward, M.D., performed an emergent upper endoscopy to determine the etiology of the massive gastrointestinal bleeding. Dr. Ward ruled out any source of bleeding in the upper gastric tract.

From the abdominal bleeding, plaintiff suffered from abdominal compartment syndrome and went into respiratory arrest, CPR was performed, and he was emergently taken to the operating room where Dr. Green and Dr. Lee performed a laparotomy (opening of his abdomen). Dr. Green discovered a large hemoperitoneum, an enteral defect in the small bowel interloped mesenteric interstices. The injury was directly opposite and facing a suture which was used by Dr. Green to repair the mesenteric injury during Plaintiff’s original surgery on June 16th. Neither Dr. Green nor Dr. Smith identified this injury to the small bowel during the original surgery on June 16th.

Following the repair to the small bowel, Plaintiff’s abdomen was left open. Two days later, on June 26th, Dr. Green performed another laparotomy. Dr. Green failed to identify any additional sources of bleeding and plaintiff’s abdomen was closed.

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