Articles Posted in Medical Malpractice

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

Plaintiffs cannot make an argument for ostensible agency in this case. Mejia states that….a patient is presumed to have looked to the hospital for care unless he or she was treated by his or her personal physician, …. (Mejia, supra, 99 Cal.App.4th at 1455, emphasis added.) Ms. White was treated by her own obstetrician – Dr. Cindy Brown – during her hospitalization at UMH in March 2005.

Further, Dr. Brown is not an employee of UMH, although she did, and still does, have staff privileges at UMH. Physicians with staff privileges are not employees or agents of the hospital. Dr. Brown does not have an office in UMH. Dr. Brown’s office is located at 2601 East Main Street in Ventura, California. Dr. Brown’s practice was not established by UMH and is not considered an outpatient clinic of UMH. Dr. Brown’s office/practice is called the Moss Medical Clinic. Dr Brown’s employees were not employees of UMH, and were not paid by UMH. UMH did not bill for Dr. Brown’s services; UMH only billed for services provided by UMH at UMH.

Based on the foregoing, plaintiff’s cannot establish a claim for ostensible agency, as none of the factors to make such a finding are present in this case. As such, defendant UMH’s motion for summary judgment should be granted.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

THERE WAS NO AGENCY BETWEEN UMH AND DR. BROWN

Agency may be either actual or ostensible. (Civ. Code, § 2298; Vallely Investments v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th 816, 826.) Actual agency exists when the agent is really employed by the principal. (Civ. Code, § 2299.) Ostensible agency “may be implied from the facts of a particular case, and if a principal by his acts has led others to believe that he has conferred authority upon an agent, he cannot be heard to assert, as against third parties who have relied thereon in good faith, that he did not intend to confer such power…” (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 644.)

The doctrine establishing the principles of liability for the acts of an ostensible agent rests on the doctrine of estoppel [citation]. The essential elements are representations by the principal, justifiable reliance thereon by a third party, and change of position or injury resulting from such reliance [citation]. Before recovery can be had against the principal for the acts of an ostensible agent, the person dealing with an agent must do so with belief in the agent’s authority and this belief must be a reasonable one. Such belief must be generated by some act or neglect by the principal sought to be charged and the person relying on the agent’s apparent authority must not be guilty of neglect [citation]. (Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942, 960.)

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

NO ACT OR OMISSION OF UMH CAUSED PLAINTIFF’S CLAIMED INJURIES

The law is well settled in California that causation must be proved within a reasonable medical probability based on competent expert testimony. Mere possibility is insufficient to establish a prima facie case. (Jones v. Ortho Pharmaceutical Corporation (1985) 163 Cal.App.3d 396, 402.) The cause of an injury has been defined as something that is a substantial factor in bringing about an injury. (Mitchell v. Gonzales (1991) 54 Cal.App.3d 1041.) Thus, to recover from UMH for medical negligence in this action, plaintiff must prove that the purported negligence of UMH was a substantial factor in bringing about the claimed injuries.

Sandy Singer has opined that no act or omission by UMH’s nursing staff caused or contributed to plaintiffs alleged injuries. It is a physician function, rather than a nursing function, to order treatment for patients. Nurse Singer has opined that the nurses properly observed and reported Ms. White’s condition and progress to her treating physician. The nurses appropriately monitored Ms. White during her early labor, and followed the doctor’s orders. The nurses appropriately observed and reported on the condition and progress of the fetuses’s based on the fetal monitor. The nurses appropriately recorded their observations in Ms. White’s chart and on the fetal monitoring strips. The nurses also followed the appropriate protocols for medication administration during early labor, as well as the protocols for early labor, and for the labor and delivery of extremely premature infants.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

UMH DID NOT BREACH ITS DUTY OF CARE TO PLAINTIFFS DECEDENTS

A hospital such as UMH owes its patients a duty of reasonable care. In a wrongful death action that is based on medical malpractice, the evidence must be sufficient to allow the jury to infer that in the absence of defendant’s negligence, there was a reasonable probability that the plaintiff would have obtained a better result. (Espinoza v. Little Company of Mary (1995) 31 Cal.App.4th 1304, 1315.) The measure of such duty is the degree of care and skill ordinarily used by hospitals generally in the community, according to what the undertaking to treat the particular patient requires in each instance. (Contreras v. St. Luke’s Hospital (1978) 78 Cal.3d 919,927.)

The declaration of Sandy Singer, RN, establishes that she has sufficient credentials to qualify as an expert witnesses with regard to the care and treatment provided to plaintiff Joan White and plaintiffs decedents by UMH’s nursing staff. She has opined, based upon a review of the relevant documents, that UMH did not breach its duty of care to plaintiff and plaintiffs decedents as the staff properly followed doctors’ orders, properly monitored, observed and reported the condition of Joan White and the twins to the doctors and cared for Ms.. White and the twins appropriately. Nurse Singer has also stated that it is a physician function, rather than a nursing function, to order treatment for patients.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

As is evidenced by the attached declaration of Sandy Singer, UMH provided care and treatment to plaintiff Joan White, and plaintiff decedents (Owen and Tomas White), which met the standard of care. Ms. Singer has opined that the nurses the nurses properly observed and reported Ms. White’s condition and progress to her treating physician. The nurses appropriately monitored Ms.. White during her early labor, and followed the doctor’s orders regarding treatment. The nurses appropriately observed and reported on the condition and progress of the fetuses’s based on the fetal monitor. The nurses appropriately recorded their observations in Ms.. White’s chart and on the fetal monitoring strips.

The nurses followed the appropriate protocols for medication administration during early labor, as well as the protocols for early labor, and for the labor and delivery of extremely premature infants. In addition, Ms. Singer has opined that UMH did everything possible for the twins, but due to their extreme prematurity, nothing could be done to save their lives. Accordingly, plaintiffs cannot establish that UMH breached its duty of care, and UMH’s motion for summary judgment should be granted.

A PARTY SUBMITTING UNCONTRADICTED EXPERT EVIDENCE MUST PREVAIL

California courts have held that where a defendant’s expert testimony is uncontradicted, no triable issue of fact remains for the jury to consider, and the defendant must prevail as a matter of law. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406.) The Willard opinion describes the preemptive weight of expert testimony in a malpractice action as follows:

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

THE ISSUE OF NEGLIGENCE CAN ONLY BE RESOLVED BY EXPERT TESTIMONY IN THIS CASE

Based on the allegations of the complaint, plaintiffs contend that the twins died because of the alleged professional negligence of the hospital. Generally speaking, actions for professional negligence center on an allegation that the professional breached the applicable standard of care. Proving what the applicable standard of care is, under most circumstances, requires testimony of a properly qualified expert. In Jambazian v. Borden, (1994) 25 Cal.App.4th 836, 844, the court stated:

The standard of skill, knowledge and care prevailing in a medical community is ordinarily a matter within the knowledge of experts. Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of lay persons.

In Evans v. Ohanesian (1974) 39 Cal.App.3d 121, at 128, the court set forth the standards to be met when one offers the testimony of a medical expert:

To qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional knowledge, learning, and skill of the subject under inquiry sufficient to qualify him to speak with authority on that subject; and (2) is familiar with the standard required…under similar circumstances…

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

ARGUMENT
SUMMARY JUDGMENT MUST BE GRANTED WHEN MOVING PARTY DEMONSTRATES THAT THE ACTION IS WITHOUT MERIT

A defendant may move for summary judgment in any action or proceeding if it contends the cause of action has no merit. (Code Civ. Proc., § 437c, subd. (a).) The cause of action has no merit if:

1. One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded, or

2. A defendant establishes an affirmative defense to the cause of action. (Code Civ. Proc., § 437c, subd. (n).)

The motion shall be granted if all of the papers submitted show there is no triable issue as to any material fact and the defendant is entitled to summary judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Any alleged disputes must concern material facts.

… [O]nce a party bears the initial burden of demonstrating an entitlement to judgment as a matter of law, the opposing party may not defeat summary judgment by attempting to generate a factual dispute as to immaterial issues … (Romero v. American President Lines, Ltd. (1995 38 Cal.App.4th 1199, 1203.)

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

STATEMENT OF FACTS

Joan White was a 26-year-old G2, P1 who was under the obstetrical care of Dr. Cindy Brown. Ms. White had previously been under the care of Dr. Brown for the delivery of her first child only 11 months before this incident. At the time of this incident, Ms. White was pregnant with diamnaiotic, dichorionic twins. Dr. Brown’s notes indicate that Ms. White had been without significant complaints until she was admitted to Universal Memorial Hospital at 23 weeks, two days gestation for tocolysis due to premature labor.

Ms. White underwent tocolytic therapy for two days at the hospital before it became apparent that the drugs were not working. She continued to go into labor and became fully dilated. At that point, Dr. Brown had discussions with Ms. and Mr. White about the poor prognosis for babies at such an early gestation. Dr. Greene, a neonatologist, also discussed the poor prognosis for babies born with such extreme prematurity.

The babies were delivered by cesarean section on XX/XX/2005. Baby A had APGARs of 2, 6 and 8, with a birth weight of 532 grams. Baby B had APGARs of 5 and 7 (no value reported for 10 minutes), with a birth weight of 560. Both babies were admitted to the NICU with a multitude of system problems, as would be expected of such premature infants.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a medical malpractice case 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 personal injury case and its proceedings.)

PLEASE TAKE NOTICE that defendant Universal Memorial Hospital of (hereinafter “UMH” ) will, and hereby does, move this court for an order that no substantial controversy or triable issue of material fact exists as to said defendant, and for entry of judgment in favor of said defendant and against plaintiffs.

This motion is made pursuant to Code of Civil Procedure section 437c of the on the ground that no triable issue of material fact exists as to UMH, in that said defendant breached no duty of care to plaintiff.

The motion will be based on this notice, the separate statement of undisputed facts filed concurrently herewith, the accompanying memorandum of points and authorities, the declaration of Sandy Singer, RN, Mary Black, Daniella Jones, the exhibits , and all pleadings, papers and other documents on file with this Court and, on such other evidence, oral or documentary, as may be presented at the hearing of this motion.

MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF THE CASE
This is a medical malpractice/wrongful death action arising out of allegations that plaintiffs’ decedents were negligently examined, diagnosed and/or treated while they were patients of Universal Memorial Hospital. Ms. White was pregnant with twins when she was admitted to Universal Memorial Hospital at 23 weeks, two days gestation for tocolysis due to premature labor.

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The following blog entry is written from a defendant’s position during the early stages of litigation. 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.)

Plaintiff Signed the Conditions of Services Agreement and is Bound by Its Provisions.

The Conditions of Services form was signed and dated November 3, 2003, prior to the bulk of the treatment provided at UMC and by Dr. Cruz, and two days prior to the subject surgery. California law uniformly holds that one who signs an instrument may not avoid the impact of its terms on the grounds that she failed to read it before signing. In Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119, the plaintiff, a driver injured while participating in a sports car race, sought to avoid the impact of a release agreement on the ground that he failed to read it before signing. In affirming the trial court’s grant of defendants’ motion for summary judgment, the Court of Appeal stated:

[M]istake, as plaintiff has argued it, is not a viable ground for not enforcing the release. His position on this point we liken to a person who comments upon leaving the movie, Had I known what it was about, I never would have bought a ticket. In sum, plaintiff cannot now claim he was mistaken about what was in the release when he failed to read it before signing [Citation]. Id. at 126.

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