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 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.)

Defendants, The Surgery Center, PC., and Ellen Brown, O.T.R., submit the following trial brief on causation in support of Defendants’ proposed special jury instructions.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical negligence action in which Plaintiff alleges negligent treatment by Defendants during hand therapy following repair of a distal radius fracture of the left wrist resulting in Plaintiff’s Complex Regional Pain Syndrome.

As the Court is aware, in medical malpractice cases, the plaintiff must establish each of the following basic elements:
(1) the duty of the professional to use such skill, prudence, and diligence as any other member of her/its profession commonly possess and exercises;
(2) a breach of that duty;

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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.)

Gastroenterologist, Sandrina Ward, M.D. performed an emergent upper endoscopy to determine the etiology of the gastrointestinal bleeding. Dr. Ward ruled out any source of bleeding in the upper gastric tract that could account for the amount of blood or account for the fluid in plaintiff’s abdomen.

As a result of the abdominal bleed, plaintiff suffered an abdominal compartment syndrome and went into respiratory arrest, CPR was performed, and he was errergently 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 caused during the first surgery. Neither Dr. Green nor Dr. Smith identified the bowel injury during the original surgery on June 16th although it was present. To not identify same was negligent. The failure to identify and repair the hole in plaintiff’s bowel may be a separate and distinct injury giving rise to a separate cause of action and a cap on general damages of $250,000.

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

As the vascular surgeon taking part in the laparotomy on the 24th, Dr. Lee was responsible for determining the source of the massive hemorrhage, including rulding out injury to the abdominal aortic bifurcation and the anterior wall of the left common iliac vein.

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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/brain 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.

In Burciaga, the Court first determined that an emergency situation, as envisioned by § 2395, existed, as the newborn was in respiratory distress and in need of emergent care. Burciaga, supra, at 714. Next, the Court stated that, unlike other Good Samaritan statutes, California’s Good Samaritan Law applies to emergencies both within and without a hospital. Burciaga, supra, at 715-716. Further, §§ 2395 and 2396 are not limit[ed] to only those physicians treating patients outside the scope of the physicians’ specialties. Burciaga, supra, at 716. The heart of the application of the Good Samaritan statutes is the inquiry whether a duty of professional care pre-existed the emergency. Burciaga, supra, at 716. The Court concluded that defendant pediatrician owed no duty to the plaintiff newborn as he was not the pediatrician’s patient, and his obstetrician did not regularly refer patients to defendant pediatrician.

In the instant case, Dr. White was called by plaintiff Amy Brown’s obstetrician to emergently treat her following delivery. At that time, Amy Brown was blue and not breathing, and in obvious respiratory distress. As such, an emergency existed. Further, plaintiff Amy Brown was not Dr. White’s patient, nor had he ever treated her before. Dr. White was only available to treat plaintiff Amy Brown because he was present at XYZ Hospital treating his own patients. Thus, Dr. White’s treatment of plaintiff Amy Brown falls squarely within the bounds of the Good Samaritan Defense. As such, Dr. White cannot be liable for plaintiffs’ damages.

Accordingly, defendant Stuart White, M.D., is entitled to summary judgment.

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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 16, 2006: Initial Surgery

Dr. Green’s placement of the first trocar or Verrees needle caused multiple vascular injuries, including a laceration to the left iliac vein, requiring immediate repair by a vascular surgeon. As a result, Dr. Smith and Dr. Lee were called to the operating room. Dr. Smith identified and repaired a 0.5 cm laceration to the left common iliac vein. During the course of the repair to the iliac vein, Dr. Smith placed DeBakey clamps in the area of the bifurcation of the abdominal aorta. As a vascular surgeon, Dr. Smith had the duty and the obligation to inspect the area and discover any additional sources of injury or bleeding. This would include inspecting the aortic and iliac vessels to rule out a more deep and penetrating vascular injury from the trocar.

Dr. Green and Dr. Smith examined the peritoneal cavity for other areas of injury. Dr. Green inspected the small bowel and mesentery and found another laceration to the mesentery. An injury to the small bowel was missed. (See Dr. Green’s June 16, 2006, Operative Report.) Plaintiff’s surgical site was closed and he was transferred to Universal Hospital.

June 19, 2006: Respiratory Failure
Three days after the original surgery, plaintiff was in respiratory distress. A CT pulmonary angiogram was performed and revealed a large right pulmonary arterial embolus. An IVC filter was placed by interventional radiologist, Dr. King.

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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 16, 2006: Initial Surgery
Dr. Green’s placement of the first trocar or Veress needle caused multiple vascular injuries, including a laceration to the left iliac vein, requiring immediate repair by a vascular surgeon. As a result, Dr. Smith identified and repaired a 0.5 cm laceration to the left common iliac vein. During the course of the repair to the iliac vein, Dr. Smith placed DeBakey clamps in the area of the bifurcation of the abdominal aorta. As a vascular surgeon, Dr. Smith had the duty and the obligation to inspect the area and discover any additional sources of injury or bleeding. This would include inspecting the aortic and iliac vessels to rule out a more deep and penetrating vascular injury from the trocar. Dr. Smith claims that as of his surgery on June 16th there was no separate injury to the bifurcation of the abdominal aorta and no injury to the iliac vein in that area

Dr. Green and Dr. Smith examined the peritoneal cavity for other area; of injury. Dr. Green and Dr. Smith inspected the small bowel and mesentery and found a laceration to the mesentery. The third injury to the small bowel was missed. Plaintiff’s surgical site was closed and he was transferred to Universal Hospital.

June 19, 2006: Respiratory Failure
Three days after the original surgery, plaintiff was in respiratory distress. A CT pulmonary angiogram was performed which revealed a large right pulmonary arterial embolus. The following day, Defendant Dr. Stuart began treating Plaintiff for respiratory failure and complications of aspiration pneumonia and pulmonary embolism.

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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 SEAN BLACK’S TRIAL BRIEF
THE PARTIES

Plaintiff: Sean Black, date of birth: XX/XX/1969.

Defendants: Owen Green, M.D., General Surgeon; Michael Smith, M.D., Vascular Surgeon; James Lee, M.D., Vascular Surgeon; Paul Stuart, M.D., Interventional Radiologist and Pulmonologist.

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, residual injuries including pulmonary embolism, respiratory arrest, massive abdominal bleed, cardiac arrests, and abdominal compartment syndrome.

Past Medical Bills: $651,150.12 (Approx.)

Future Medical Care: Monitoring of Deep Vein Thrombosis and potential surgery.

Wage Loss: $14,636.80, plus sick leave and annual leave earnings for the same of earnings: time frame.

General Damages: $750,000.00
STATEMENT OF FACTS
On June 16,2006, Plaintiff went to the Universal Surgery Center to have his gallbladder removed, also known as a “cholecystectomy.” This was supposed to be a routine procedure performed by general surgeon Owen Green, M.D.

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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 birth injury/medical malpractice 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.

Similarly, California Business & Professions Code § 2396 provides:

No licensee, who in good faith upon the request of another person so licensed, renders emergency medical care to a person for medical complication arising from prior care by another person so licensed, shall be liable for any civil damages as a result of any acts or omissions by such licensed person in rendering such emergency medical care.

In Perkins v. Howard, 232 Cal.App.3d 708 (1991), the Court stated that the plain intent of the Good Samaritan Law is to encourage physicians to respond to requests for aid in medical emergencies, and thereby provide medical care to those who might not otherwise receive it. In Bryant v. Bakshandeh, 226 Cal.App.3d1241 (1991), the Court defined emergency as the existence of an exigency of so pressing a character that some kind of action must be taken.

In McKenna v. Cedars of Lebanon Hospital, 93 Cal.App.3d 282 (1979), the decedent’s family filed an action against defendant doctor, who had provided emergency medical care to the decedent. The decedent was not a patient of defendant doctor, nor was defendant doctor otherwise involved with the decedent’s medical care. The Court held that California’s Good Samaritan Law (then § 2144, now §§ 2395 and 2396) applied to medical emergencies in hospitals the same way it did to medical emergencies elsewhere. In so holding, the Court stated that a licensed physician, who in good faith rendered emergency medical care at the scene of an emergency, was not liable for any civil damages that resulted from any acts or omissions in rendering such care. McKenna, supra, at 288.

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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 Sean Black submits the following Memorandum of Points and Authorities in Opposition to James Lee, M.D.’s, Motion for Summary Judgment.

INTRODUCTION

Plaintiff’s complaint consists of two causes of action: one for medical malpractice, and another for failure to give informed consent. The medical malpractice arises from multiple injuries sustained during a cholecystectomy surgery on June 16, 2006. Defendant Dr. Lee filed the instant Motion for Summary Judgment, or in the Alternative for Summary Adjudication. Dr. Lee has attempted to show that he met the standard of care, was not negligent and did not cause plaintiff’s resulting injuries.

Dr. Lee filed one declaration in support of is motion, the declaration of Robert White, M.D. However, Dr. White’s declaration fails to address the issue of Dr. Lee’s duty to adequately inspect, discover and repair the source(s) of Plaintiff’s continued abdominal bleeding. As such, Dr. Lee has failed to meet his prima facie burden of proof to show the nonexistence of any triable issue of material fact. Even assuming that Dr. Lee met his initial burden, plaintiff now provides an expert declaration that supports a finding of triable issues of material facts as to the breach of the standard of care by Dr. Lee.

STATEMENT OF FACTS
On June 16, 2006, plaintiff went to the Universal Surgery Center to have his gallbladder removed, also known as a cholecystectomy. This was supposed to be a routine procedure performed by general surgeon Owen Green, M.D.; Mr. Black was to be released the same day.

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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/brain 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.

In the instant action, plaintiff alleges that defendant Dr. White committed professional negligence in and around May 25, 1999, at co-defendant XYZ Hospital, by failing to timely diagnose and treat plaintiff Amy Brown respiratory difficulties, causing her to suffer further hypoxic brain injury. However, plaintiffs cannot produce any competent medical testimony to substantiate that allegation.

As stated in his declaration, Dr. White timely determined that Amy Brown’s endotracheal tube was obstructed, and re-intubated her appropriately. Further, Dr. White’s determination that Amy Brown’s ventilator was potentially malfunctioning, and subsequent replacement of said ventilator, was performed in a timely manner and appropriately. As set forth in Dr. White’s declaration, his care and treatment of plaintiff Amy Brown in no way, caused or contributed to plaintiffs’ injuries. Accordingly, if plaintiffs cannot provide expert support to substantiate their allegation that defendant actually caused their alleged injuries and damages, their action must fail.

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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 brain injury/medical malpractice 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 MUST PRESENT AFFIDAVITS OR DECLARATIONS OF COMPETENT EXPERTS TO AVOID THE GRANTING OF THIS MOTION

In a medical malpractice action, the plaintiff must present expert testimony to establish the necessary elements of his or her case; that is, that the defendant’s act or omission fell below the applicable standard of practice, and that this substandard care caused the plaintiff injury. Folk v. Kilt (1975) 53 Cal.App.3d at 176 [126 Cal.Rptr. 172]. Accordingly, plaintiff must come forward with admissible evidence, by a competent qualified physician, that the care and treatment rendered by the moving defendant fell below the applicable standard of care and actually caused plaintiff’s injuries and damages. (Folk, supra, at page 176.) Absent such evidence, there is no triable issue as to any material fact.

THE CARE RENDERED BY DEFENDANT IN NO WAY CAUSED OR CONTRIBUTED TO THE INJURIES COMPLAINED OF BY PLAINTIFF
In addition to proving that the defendant fell below the standard of care, to prevail on any medical negligence claimed, the plaintiff must demonstrate that the defendant’s malpractice caused injury to the plaintiff. Bolen v. Woo (1979) 96 Cal.App.3d 944, 953.

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