Articles Posted in Medical Malpractice

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.)

Dr. Cruz is Not the Ostensible Agent of UMC.

Pursuant to Mejia v. Community Hospital (2002) 99 Cal.App.4th 1448, in order to establish ostensible agency plaintiffs must prove all of the following three elements: (1) the plaintiff believed that the physician was an agent of the hospital, and this belief was reasonable; (2) plaintiff’s belief must be generated by some act or neglect of UMC; and (3) the plaintiff must not be guilty of negligence. (Mejia, supra 99 Cal.App.4th 1456 -1457.) Herein, plaintiffs cannot establish these elements because the Conditions of Services form, signed by the patient and dated November 3, 2003, prior to the subject surgery by Dr. Cruz, clearly states under paragraph 4 that all physicians and surgeons furnishing services to the patient … are independent contractors with the patient and are not employees or agents of the hospital.

Plaintiff was Given Actual Notice of the Independent Contractor Relationship between Physicians and UMC.

Ostensible agency may not be inferred when the hospital gave the patient actual notice of the true relationship between the hospital and the physician, and in the instant case, such notice was given to plaintiff, who acknowledged his signature on the Conditions of Admissions form dated November 3, 2003, signed by the plaintiff within 24 hours of his presentation to UMC, and a full day before the subject surgery by Dr. Cruz. Since plaintiff was provided with actual, written notice of the relationship between UMC and physicians, there can be no finding of an ostensible agency relationship between Dr. Cruz and UMC.

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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.)

Further, plaintiff was given actual notice of the relationship between physicians and UMC in the Conditions of Services form. The physicians are independent contractors and not employees or agents of UMC. Moreover, plaintiffs signature appears on the Conditions of Services form. UMC cannot be liable for any physician negligence (i.e., diagnosis and treatment) alleged by plaintiffs.

Any assertion that UMC breached a duty in the diagnosis and treatment of the decedent’s condition is also a legal impossibility–diagnosis and treatment are the sine qua non of practicing medicine and only a licensed physician may perform such acts. UMC does not have a license to practice medicine, and it does not practice medicine. (Bus. & Prof. Code § 2052 [ Any person who practices or attempts to practice … any system or mode of treating the sick, or afflicted in the state… without having at the time of doing so, a valid, unrevoked, or unsuspended certificate… is guilty of a misdemeanor. )

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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.)

Universal Medical Center’s Opposition to Plaintiffs’ Motion for Summary Adjudication

Defendant, UNIVERSAL MEDICAL CENTER (“UMC”) hereby opposes plaintiffs motion for summary adjudication. Plaintiffs have failed to meet their burden because UMC is not liable for the acts of an independent contractor physician; plaintiffs’ moving papers fail to establish ostensible agency pursuant to the three prong test set forth by Mejia and plaintiffs were given actual notice that Dr. Cruz was an independent contractor, and Dr. Cruz was not a UMC employee or agent. Thus, summary adjudication must be denied.

MEMORANDUM OF POINTS AND AUTHORITIES

Summary adjudication must be denied because (1) UMC is not liable for the acts of an independent contractor physician; (2) plaintiffs’ moving papers fail to establish ostensible agency pursuant to the three prong test set forth by Mejia and plaintiffs were given actual notice that Dr. Cruz was an independent contractor, and (3) Dr. Cruz was not a UMC employee or agent.

UMC is Not Liable for Independent Contractor Physicians.

If a doctor is an independent contractor at a hospital, the hospital is not liable for a doctor’s alleged negligence. (Mayers v. Litow (1957) 154 Cal.App.2d 413; Konoff v. Fraser (1944) 62 Cal.App.2d 788.)

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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 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 medical malpractice/personal injury case and its proceedings.)

DR. BLACK’S DECLARATION OMITS VITAL FACTS

Dr. Black’s declaration, through careful wording, attempts to create the picture that when any patient presents to XYZ Hospital and they are seen by a nurse practitioner, a supervising physician is automatically involved every time, working hands-on with that patient, second-guessing the nurse practitioner, and fully handling and managing that patient’s care. Nothing can be further from the truth. Nurse practitioners, by their special status as mid-level practitioners are allowed (and even expected) to have a certain degree of autonomy in rendering care to patients. In fact, page 1 of the Frequently Asked Questions Regarding Nurse Practitioner Practice states that a nurse practitioner is still practicing legally when the supervising physician is 50 miles away.

Further, XYZ Medical Center’s Standardized Procedures for Nurse Practitioners, that Dr. Black has mis-cited in his declaration, in actuality goes to great lengths to describe the degree and type of autonomy that nurse practitioners have. On page 4 of the Standardized Procedures, at the very onset of the General Policies, the first sentence states it is the intent of this document to authorize nurse practitioners at XYZ Medical Center Emergency Department to implement the Standardized Procedures without the immediate supervision or approval of a physician. (Emphasis added.) Page 6 of the General Policies provides that the nurse practitioner will be responsible for the preparation of a complete medical record for each patient contact per existing office policies. Moreso, under the “Supervision” heading, the nurse practitioner is authorized to implement the Standardized Procedures in this document without the direct or immediate observation, supervision or approval of a physician, except as may be specified on individual healthcare management standardized procedures.

Under the “Consultation” heading, the rules regarding when a nurse practitioner must consult with a physician clearly state on page 7 the situations wherein a physician must be consulted. These requirements are mandatory for nurse practitioners only. Thus, it is up to the nurse practitioner to seek out the physician for a consultation, if such is required under these guidelines, not the other way around. It is not a physician’s duty to seek out a nurse practitioner and provide an unasked-for consultation. Physicians are not required to wander the halls, looking for patients whose very existence they are unaware of, seeking to provide consultations every time a nurse practitioner treats a patient.

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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 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 medical malpractice/personal injury case and its proceedings.)

Dr. White was never an attending physician and merely signed Paul Brown’s chart, fulfilling his administrative duties to the hospital. Dr. White in his declaration in support of his moving papers, at 2:6, states quite plainly I am required to sign charts of a number of patients who were seen and treated by mid-level practitioners, who I did not see or treat myself. There is no requirement that the chart be reviewed in detail by the physician or that the physician make an independent evaluation of the patient’s diagnosis and treatment. Thus, Dr. White’s signature does not create a duty to see the patient or direct the medical treatment, all of which has already occurred. More so, page 1 of the Frequently Ask Questions Regarding Nurse Practitioner Practice states that “The Nursing Practice Act (NPA) does not require physician countersignature of nurse practitioner charts.”

However, other statutes or regulations, such as those for third party reimbursement, may require the physician countersignature. Additionally, some malpractice insurance carriers require physicians to sign NP charts as a condition of participation. Standardized procedures may also be written to require physicians to countersign charts.

Dr. Black sums up his opinions at 5:11-21, stating that plaintiff’s injuries “could have been avoided if appropriate nursing triage had occurred …” and “if Nurse Brown had accurately completed the history and physical…” These two portions of Black’s declaration are utterly irrelevant to Dr. White in this matter. Black then posits a hypothetical that “if Dr. White had read, critically reviewed, and appropriately responded, (as required by the emergency department supervisory procedures) to the submitted patient chart, the patient’s care would have met the standard of care …” Plaintiff was never at any point in time Dr. White’s patient, as the triage nurse directed plaintiff to nurse practitioner Paul Brown, and nurse Brown never consulted with Dr. White regarding plaintiffs care. Dr. White in his declaration at 1:25-2:3 describes that patients coming to the emergency room at XYZ Medical Center at that time (and now) are typically screened by a triage nurse, whose role includes determining the acuity (severity) of the patient.

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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 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 medical malpractice/personal injury case and its proceedings.)

Dr. Black states in his declaration that plaintiffs injuries represented complex, if not major, trauma. Black goes on to state at 3:26-4:4 that complex or major trauma requires immediate involvement of an emergency department physician, for documentation, diagnosis, initial treatment and stabilization, and referral. Only minor trauma may be initially evaluated by a nurse practitioner … Dr. Black in his declaration has the benefit of 20/20 hindsight in that the true extent of plaintiff’s injury is now known. Upon plaintiffs initial presentation to XYZ Hospital, it may have been impossible to instantaneously recognize her injury as complex and/or major trauma. Here, plaintiff was ambulatory and brought herself voluntarily to the hospital, the day after falling at her home, with a complaint of neck pain.

The real crux of Black’s declaration begins at 4:5 wherein he chastises the inappropriate triage decision of placing plaintiff in urgent care, accompanied by the incomplete and inaccurate evaluation performed by nurse practitioner Paul Brown. This information is totally irrelevant to the potential liability of Dr. White. A decision by the triage nurse to send a patient to either a nurse practitioner or a physician is utterly out of Dr. White’s hands. Despite this lack of responsibility on Dr. White’s part, Black attempts to overcome this by citing to XYZ Medical Center’s Nurse Practitioner Standardized Procedures.

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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 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 medical malpractice/personal injury case and its proceedings.)

LEGAL STANDARD
SUMMARY JUDGMENT IS APPROPRIATE BECAUSE PLAINTIFF HAS FAILED TO ESTABLISH THAT A TRIABLE ISSUE OF ONE OR MORE FACTS EXISTS

In a summary judgment motion, the opposing party has the burden of showing the existence of a triable issue of material fact. (Churn v. Bank of America (1976) 15 Cal.3d 866, at 873; Marilla v. Right Stuff Food, Inc. (1998) 65 Cal.App.4th 833, at 841). The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code of Civil Procedure §437(c)(7)(c)). The defendant need only show the plaintiff cannot establish at least one element of the cause of action. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, at 853.) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more facts exists as to that cause of action. (Id.) Information and expert opinion that is utterly irrelevant to the moving party is not sufficient to create an issue of fact.

ARGUMENT
THE OPINIONS EXPRESSED BY DR. BLACK ARE IRRELEVANT TO DR. WHITE

Dr. Black states in his declaration that “a standard trauma evaluation was required, with emergency attending physician evaluation…” Black goes on to further state at 3:18 that “early emergency department attending physician evaluation … could have prevented the subsequent cervical spine deformity...” While this may or may not be the case, this opinion assumes that when plaintiff presented, the patient was actually seen by Dr. White. As is well documented, and even admitted in plaintiffs opposition brief, Dr. White neither saw, nor cared for, plaintiff at any point in time through no fault of his own.

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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 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 medical malpractice/personal injury case and its proceedings.)

Steve White, M.D.’s (hereinafter “White”) Reply to Plaintiff’s Opposition to Summary Judgment Motion by Defendant Steve White, M.D.

INTRODUCTION

The following facts were established in the moving papers in this medical malpractice action, and remain without dispute. Plaintiff Cindy Smith went to the emergency room the day after she fell at her Sacramento home, and she complained of neck pain. The patient was directed to a nurse practitioner (Paul Brown) and was never seen by Dr. White.

Plaintiff’s opposition to this motion is misdirected. Plaintiff’s essential contention is that she should have been seen by a medical doctor and not a nurse practitioner. But, this was a decision made by the triage nurse. Plaintiff argues that Dr. White is “personally and vicariously liable for nurse Paul Brown’s failure …” But, there is no legal basis for vicarious liability on the part of a physician, who simply happens to be in the emergency department at the same time that a patient is treated by a nurse practitioner and discharged.

Beyond expressing an opinion that the patient had a serious condition that warranted evaluation by a medical doctor, not a nurse practitioner, plaintiffs expert provides nothing to the court of legal significance. He attempts to offer an interpretation of Standardized Procedures under which nurse practitioner Wonder operates but such opinion is argumentative, lacks foundation, and is outside the scope of the expertise of a medical expert.

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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. Green

On June 24th Plaintiff was believed to have suffered a gastrointestinal bleed. On that day, Dr. Green 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 ir 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. Green lacerated the posterior wall of the abdominal aorta and/or 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 second series of injuries. Dr. Green has presented no evidence rising to a medical probability that his placement of the line did not cause injury.

However, even assuming Dr. Green did not cause the injuries, as the vascular surgeon taking part in the laparotomy on the 24th, Dr. Green was responsible for determining the source of the hemorrhage, including ruling out injury to the abdominal aorticbifurcation and the anterior wall of the left common iliac vein. Dr. Green admits that he did not discover the source of Plaintiffs bleed on the 24th As evident by the events on June 28th, Dr. Green failed to adequately inspect, discover and repair all sources of the bleed. Dr. Green’s failure to discover and repair the injury was below the standard of care and was a substantial factor in causing Plaintiff’s injury.

Dr. O’Connor

Defendant Dr. O’Connor s treatment of Plaintiff began on June 19, 2005, 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. O’Connor. If Dr. O’Connor caused a puncture/laceration to the aortic bifurcation and/or to the left common iliac vein during the course of these placement of the femoral venous lines it was below the standard of care and a substantial factor in causing Plaintiff’s second set of injuries.

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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. Brown

Dr. Brown’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. Brown was below the standard of care in causing these injuries.

Dr. Spring, Dr. Brown’s retained expert testified these injuries are not supposed to happen.
Q: you’re not suppose to injury the vein, are you?
A:. No.
Q: You’re not supposed to injure the mesentery, correct?
A: No. That’s not the intent of the operation.
Q: And you’re not suppose to injur the bowel correct?

A: That’s correct.

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

Dr. Spring confirmed these injuries were caused by Dr. Brown’s placement of the trocar.
Q: Tell me how the vein injury was caused.

A: Most likely be the insertion of the trocar.

Further, it was Dr. Brown’s and Dr. Garcia’s duty to discover all areas of injury during the first exploratory surgery.
Q: Whose responsibility was it to determine the sources of the bleeding?
A: I believe the vascular surgeon would do that. That would be h s responsibility.
Q: Am I correct then that once Dr. Brown finished the cholecystectomy despite that fact that he may be responsible for causing the injuries it became Dr. Garcia’s obligation to identify any source of injuries?

A: Correct.

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