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/birth 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.

EXPERT TESTIMONY IS ESSENTIAL TO DETERMINE LIABILITY IN A MEDICAL MALPRACTICE ACTION

In a medical malpractice action, the requisite standard of care is determined by the applicable standard of care then existing in the particular professional community. Barton v. Owen (1977) 71 Cal.App.3d 484, 139 Cal.Rptr. 494. In Linderos v. Flood (1976) 170 Cal.3d 399, 551 P.2d 389, 131 Cal.Rptr. 69, the Supreme Court determined that the standard of care against which the acts of physicians are measured is a matter within the knowledge of experts and can only be proven by their testimony. The rationale for requiring expert testimony in medical malpractice actions was succinctly stated by the court in Barton:

In most instances there is a need for expert testimony on the subject of just what constitutes medical negligence, because the average judge or juror does not possess the necessary level of knowledge about medical malpractice to decide on its own whether the doctor was negligent. Barton at 494, 139 Cal.Rptr. at 499.

The role of expert testimony in a medical malpractice action was explained in Willard v. Hagenmeister (1981) 121 Cal.App.3d 406, 175 Cal.Rptr. 365. In Willard, the court was called upon to review the granting of a summary judgment motion in favor of the defendant dentist, where defendants secured declarations of experts to support his motion for summary judgment. In describing the weight to be given such expert testimony, the court stated:

Continue Reading ›

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 medical malpractice 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.

SUMMARY JUDGMENT MUST BE GRANTED AS A MATTER OF LAW WHEN NO TRIABLE ISSUE AS TO ANY MATERIAL FACTS EXIST

It is well-established that a motion for summary judgment shall be granted when the moving party demonstrates that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code of Civil Procedure Section 437c(c). In making this determination, the court may rely on affidavits, declarations … and matters of which judicial notice shall or may be taken. Code of Civil Procedure Section 437c(b).

The summary judgment statute was revised as of January 1, 1993, and now specifies that a party bringing a motion for summary judgment need only establish a defense or only negate a necessary element of the challenged cause of action to justify entry of summary judgment. Code of Civil Procedure Section 437c(n); cf. Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1050. Under this new standard, once the moving party has met its burden of negating one necessary element of a claim, the opposing party must then show that a triable issue of material fact exists as to the questioned cause of action, or summary judgment shall be granted. Code of Civil Procedure Section 437c(n)(2).

Continue Reading ›

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.

STATEMENT OF FACTS

On May 25, 1999, plaintiff Tina Brown presented to co-defendant XYZ Hospital for the anticipated delivery of her child. Prior to and during, her delivery, Tina Brown was treated and cared for by co-defendant James Lee, M.D. Tina Brown was not Dr. White’s patient, nor had he ever treated her before.

Approximately twenty minutes after the Cesarean-section delivery of minor plaintiff Amy Brown, Dr. White, a neonatologist, was called and told to emergently examine Amy Brown. Amy Brown was not Dr. White’s patient, nor had he ever treated her before. When Dr. White first examined Amy Brown, she was cyanotic, and her chest was not rising well during respiration. At that time, Dr. White determined that her endotracheal tube might be obstructed. As such, Dr. White re-intubated Amy Brown with a new and larger endotracheal tube.

Subsequently, upon determining that Amy Brown’s condition was not improving adequately, Dr. White determined by a matter of elimination that in all probability her ventilator was malfunctioning. Consequently, Dr. White replaced the ventilator with another ventilator.

Continue Reading ›

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 wrongful death/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.

INTRODUCTION

This medical malpractice action against Defendant Stuart White, M.D. arises out of his care and treatment of minor plaintiff Amy Brown in and around May 25, 1999, at co-defendant XYZ Hospital. On August 16, 2000, plaintiffs filed their Complaint, and on December 21, 2000, they filed their First Amended Complaint. On November 14, 2002, plaintiff’s First Amended Complaint was amended adding Dr. White as a Doe defendant. On December 5, 2002, Dr. White was served with a Summons on the Amended First Amended Complaint.

On May 25, 1999, Dr. White was called to XYZ Hospital for emergency neonatal care of plaintiff Amy Brown. Neither plaintiff Amy Brown, nor her mother, plaintiff Tina Brown, were the patient of Dr. White, nor had he ever treated either of them before. Further, Dr. White only treated plaintiff Amy Brown at XYZ Hospital on May 25, 1999. In their Complaint, plaintiffs essentially allege that Dr. White failed to timely diagnose and treat plaintiff Amy Brown’s respiratory difficulties, causing her to suffer further hypoxic brain injury.

Continue Reading ›

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.

This Motion For Summary Judgment will be made upon the grounds that there are no triable issues of material fact in this action in that the medical care and treatment rendered by defendant Stuart White, M.D. to minor plaintiff Amy Brown complied, at all times, with the applicable standard of care. Moreover, the care and treatment provided by defendant in no way caused or contributed to plaintiffs’ alleged injuries and damages.

In addition, defendant provided emergent treatment to plaintiff Amy Brown, at the scene of the emergency at the defendant hospital. As such, defendant cannot be liable for plaintiffs’ damages pursuant to California’s Good Samaritan Law, California Business & Professions Code § 2395 and § 2396.

Continue Reading ›

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

B. THE JUDGE HAS REPEATEDLY ABDICATED HIS RESPONSIBILITIES AS JUDGE AND DELEGATED SOLE ARBITRARY AUTHORITY TO THE DEFENSE TO SCHEDULE THE DATES OF ALL OF PLAINTIFF’S DEPOSITIONS OF DEFENSE EXPERTS

Plaintiff hereby incorporates by reference thereto the Declaration of John J. Green in support of this objection.

On at least two occasions Plaintiff applied to the Court to required the Defendant to present himself and his medical malpractice experts for depositions in a more timely manner, instead of setting the depositions for weeks and months after the date set forth in Plaintiff’s notice. On each occasion Judge Smith absolutely refused to hear much less requested an explanation from defense counsel (Betty Howe) as to why the depositions had been scheduled so for out, but simply told her to get the best dates available and confirm them with Plaintiff’s counsel by 5 pm today . On each occasion defense counsel contacted Plaintiff’s counsel with the same dates that she had previously offered and Plaintiff’s counsel was thereby forced to accede to dates that pushed his discovery up to July 13 with a July 27 trial call.

Likewise at the July 5, 2005 hearing the Judge improperly violated Plaintiff’s constitutional rights to due process by first taking up defense counsel’s request that Plaintiff’s noticed depositions of treating experts be limited in time and that the location be changed. No prior notice had been given that any such request would be made, only a frivolous request to quash the depositions. The Judge ignored Plaintiff’s objection on due process grounds and without giving Plaintiff’s counsel an opportunity to object quickly agreed with an attorney for Dr. Brown that the latter’s deposition be taken at the latter’s office and limited to two hours.

Continue Reading ›

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

Evidence set forth in the declaration of John J. Green filed with this objection establishes that the Judge repeatedly and knowingly:

a. violated Plaintiffs’ rights due process;

b. violated controlling statute and case authority in an effort to frustrate and delay Plaintiff’s trial preparation.

A. INTENTIONALLY & REPEATEDLY VIOLATED CONTROLLING LAW IN ORDER TO FAVOR THE DEFENSE AND FRUSTRATE PLAINTIFF’S TRIAL PREPARATION

On July 5, 2005, the parties appeared before Judge Smith on Defendant White’s ex parte application to quash Plaintiff’s duly noticed deposition of treating medical malpractice experts, Drs. Mary Bean and Dr. Stanley Brown. Both of these experts were identified in the parties CCP §2034 exchange. CCP §2025(d) gave Plaintiff the right to depose these experts up to the 15th day prior to trial.

The Judge acknowledged the law and Plaintiff’s right to depose the experts, however, he then entertained a request by non-party expert, Stanley Brown’s attorney, to have the deposition at Dr. Brown’s office instead of at the court reporter’s office in downtown Sacramento where it was duly noticed. Plaintiff explained that in light of the fact that Dr. Brown’s deposition was going to be tape recorded and Dr. Jones’s deposition was scheduled before Brown’s and would conclude minutes before Brown’s was to begin that it would be logistically impossible to take Brown’s deposition at Brown’s office to begin at 11:30 am as noticed.

Continue Reading ›

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

There cannot be a clearer display of bias than Judge Smith’s refusal to grant any relief to Plaintiff from Defendant’s wrongful tampering with Plaintiff’s medical malpractice expert.

In addition, he has violated Plaintiff’s constitutional rights to due process by issuing orders of subjects that were not properly before him by way of noticed motion. For example, at the 7-05-05 ex parte hearing even though no party had given prior notice of any intent to request that Plaintiff’s noticed depositions of treating experts Brown and Jones’s depositions be limited in time and at a different location, the Judge entered such an order and in doing so knowingly and deliberately deprived Plaintiff of the deposition of Dr. Brown by ordering that his deposition take place at Dr. Brown’s office at Children’s hospital located some 10 miles for the noticed location and which made it logistically impossible for Plaintiff’s counsel to comply with the Judge’s order.

During the 7/8/05 hearing the Judge again repeatedly interrupted and precluded Plaintiff’s counsel from making a record that could be read by the court of appeal, but instead made his own record favorable to defense counsel. Further, the Judge’s comments would support an inference that he had not even read Plaintiff’s moving paper nor Plaintiff’s reply papers.

Continue Reading ›

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

In addition, the Judge has made comments on the record that support the inference that he views fair rulings for the Plaintiff required by the facts and the law to have been favors for which he expects gratitude. For example the following exchange took placed during the July 8 hearing:

MR. GREEN: You repeatedly, throughout the case, you’ve been the advocate for the defense

THE COURT: To me this case is an example of the expression, No good deed goes unpunished. I have in this case devoted more time to this case than about any other medical malpractice case I can recall.

MR. GREEN: Most of it —

THE COURT: I’ve made myself available to you and the other attorneys. I’ve resolved numerous discovery disputes. I haven’t kept track, but I know that some have gone in your favor and some have not. I feel like I performed a very high level of service for you in this personal injury case.

MR. GREEN: I disagree.

THE COURT: I know in my heart I’m trying, I always try, to do the right thing, and so I’m kind of saddened that this is coming — you are not perceiving it in the same way I perceive it.

MR. GREEN: Could I make my arguments, your Honor?

THE COURT: Sure.

MR. GREEN: Thank you.

Continue Reading ›

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

PLAINTIFFS HEREBY OBJECT to Judge Paul S. Smith presiding at the trial of this medical malpractice action or in any further proceedings concerning this action.

This objection is based upon each of the following:

A person aware of the facts concerning the Judge’s conduct and handling of the matters that have been presented to her in this personal injury case might reasonably entertain a doubt that the judge would be able to be impartial.

As set forth in the declarations submitted herewith, Judge Smith has repeatedly assumed the role of advocate for the defense; repeatedly cut off Plaintiff’s counsel’s efforts to make a record; while making a record favorable to the defense; and repeatedly violated Plaintiff’s constitutional rights to due process by ordering Plaintiff to do things without any prior notice or opportunity to prepare for and brief the issue.

In addition, the facts support an inference that Judge Smith has abdicated his duties as a Superior Court Judge to fairly resolve issues based upon a fair application of the facts to the law. Instead his comments on the record reflect his view of his role as an anti-solomon like mediator position in which he repeatedly attempts to “split the baby” so as to more often than not bestow improper favors upon defense counsel even when the latter is completely in the wrong on the law and facts before the court. The following is an excerpt from the July 5 ex parte hearing in Judge Smith’s chambers:

Continue Reading ›