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.)

THE SECOND ACT OF NEGLIGENCE IS A SECOND CAUSE OF ACTION

Although Plaintiff suffered multiple injuries when Dr. Brown placed the original trocar in the iliac vein, the mesentery and the small bowel, which commutatively give 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.)

Defendants Garcia and Green’s own expert, Dr. Richard Davis testified at deposition there are two separate and distinct injuries. (See Deposition of Dr. Richard Davis, page 51, lines 17-21, attached hereto as Exhibit 1. ) Dr. Davis further testified that the injury to Plaintiff’s bifurcation of the aorta could not have been present during the June 16th surgery because Dr. Garcia would have been able to see it. (See Deposition of Dr. Richard Davis.) Plaintiff has separate causes of action for each injury and therefore separate damage limitations. Plaintiff will ask the jury to award him S750,000 in general damages for medical malpractice.

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.

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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.)

une 28, 2005, 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. O’Connor. A third emergency surgery was performed by Dr. Brown and Dr. Garcia. 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. Garcia and Dr. Brown finally discovered the source of bleeding, two totally separate injuries, a laceration at the posterior aspect of the aorticbifurcation 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 Plaintiffs 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, 2005, totally disabled.

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,

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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.)

As a result of the abdominal bleed, Plaintiff suffered an abdominal compartment syndrome and he went into respiratory arrest, CPR was performed, and he was urgently taken to the operating room where Dr. Brown and Dr. Green performed a laparotomy (opening of his abdomen). Dr. Brown discovered a large hemoperitoneum, an enteral defect in the small bowel interloped mesenteric interstices caused during the first surgery. Neither Dr. Brown nor Dr. Garcia 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 Plaintiffs 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, Plaintiffs abdomen was left open. Two days later, on June 26th, Dr. Brown inspected and closed the abdomen. Dr. Brown failed to identify any additional sources of bleeding.

As the vascular surgeon taking part in the laparotomy on the 24th, Dr. Green was responsible for determining the source of the massive hemorrhage, including rulding out injury to the abdominal aorticbifurcation and the anterior wall of the left common iliac vein. As evidenced by the events on June 28th, Dr. Green failed to adequately inspect, discover and repair all sources of the abdominal bleed. If Dr. Green caused this bleed by injuring the aorta or left iliac vein when he set his lines this is a separate and distinct cause of action from the prior injuries and gives rise to a separate and distinct general damages cap of $250,000. (See Part 4 of 7.)

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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, 2005, Initial Surgery
Dr. Brown’s placement of the first trocar or Veres needle caused multiple vascular injuries, including a laceration to the left iliac vein, requiring immediate repair by a vascular surgeon. As a result, Dr. Garcia 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. Garcia placed DeBakey clamps in the area of thebifurcation of the abdominal aorta. As a vascular surgeon, Dr. Garcia had the duty and the obligation to inspect the area and discover any additional sources of in ury 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. Garcia 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. Brown and Dr. Garcia examined the peritoneal cavity for other area; of injury. Dr. Brown and Dr. Garcia 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 XYZ Hospital.

June 19, 2005, 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. O’Connor began treating Plaintiff for respiratory failure and complications of aspiration pneumonia and pulmonary embolism. Dr. O’Connor opined that the respiratory failure was not just from the pulmonary embolism, but that he also had an aspiration event. The blood clot which caused the pulmonary embolism had developed in Plaintiff’s left iliac vein at the site lacerated during the cholecystectomy. All experts agree the pulmonary embolism was a direct result of Dr. Brown’s laceration of the left iliac vein.

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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 JOHN SMITH’S MEDICAL MALPRACTICE TRIAL BRIEF
I. THE PARTIES

Plaintiff: John Smith, date of birth: XX/XX/1967.

Defendants: Dennis Brown, M.D., General Surgeon Bob Garcia, M.D., Vascular Surgeon Paul Green, M.D., Vascular Surgeon, James O’Connor, 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: $601,150.12 (Approx.)

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

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 THE FACTS
On June 16,2005, Plaintiff went to the XYZ Surgery Center to have his gallbladder removed, also known as a cholecystectomy. This was suppose lo be a routine procedure performed by general surgeon Dennis Brown, M.D. Defendant Dr. Brown chose to do the surgery using a laparoscopic technique which necessitated the use of a Veres needle to gain access of the abdominal cavity, and a trocar, sharply pointed instruments, use to puncture the peritoneum for placement of the cannulas.

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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.)

CLAIMED SPECIAL DAMAGES
Plaintiff has consulted with expert rehab nurse, Tamara Evans, BSN, RN, PHR, CCM. Ms. Evans believes that Ms. Green has a number of needs. These needs include:
1. CNA level care for 8 – 12 hours per day;
2. Housekeeping care once week for 4 hours;
3. A motorized wheelchair;
4. A lift;
5. A minivan with ramp;
6. Ramps at her home;
7. Physical therapy; and

8. A new mattress for her hospital bed.

Don Black, a local Ph.D., has placed a present value on the ongoing expenses. He places this value, which is primarily for the CNA level care at 1.4 million. In addition, there are present costs for items which add $100,000.00 (van, wheelchair, lift, etc.).

In addition to these expenses, there is the cost of replacing plaintiff’s insurance. UH billed her $983,031.64. Of that, $485,000.00 was paid by her insurance. However, this payment exhausted her $500,000.00 per condition coverage related to the back surgery and any complications. Plaintiff cannot replace the coverage to offset the loss. A substandard replacement, according to expert testimony, would cost $900.00 – $1,000.00 per month. This, according to Dr. Black, is an added present value loss of $274,000.00.

Plaintiff’s economic damages thus total $1,750,000.00.

GENERAL DAMAGES

Plaintiff is profoundly disabled and unable to provide for her basic needs. She is depressed and in pain. She seeks the $250,000.00 limit for general damages.

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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.)

DAMAGE ISSUES
Plaintiff’s medical records contain the following descriptions:
This a 57-year-old Caucasian female status post anterior spinal fusion complicated with left lower extremity neuro deficit, abdominal wound infection, and occluded left common iliac artery. The patient underwent an anterior spinal fusion L4-S1. It was found during this operation the patient had some fibro-arterial occlusive disease. Her left iliac artery was occluded and required embolectomy and Dacron interposition graft to the left common iliac artery.

Postoperatively, the patient had an unhealed abdominal wound. The patient has a history of diabetes mellitus. Postoperatively, the wound had undergone Wound-Evac therapy. At various times the patient was offered a split-thickness skin graft. he wound also required multiple debridments and its was debrided on 08/26 and 08/29. Secondary to her diabetes, she did develop a wound infection with Pseudomonas and she was on appropriate antibiotics for a period of time. Endocrine was consulted for a tight control of her diabetes in order to promote wound healing.

57-year-old female developed paralysis of the left leg after she undervent anterior spine fusion which was complicated by iliac artery thrombosis and subsequent iliac bypass surgery on 7/22/02. She does not have sensation below the mid thigh level. She has history of diabetes and history of traumatic injury to the right upper extremity and amputation of the right leg. She is currently on an I.V. heparin drip.

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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 ISSUES

BAJI 6.11 provides that a physician has a duty to disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment BAJI further provides that when a procedure inherently involves a known risk of death or serious bodily harm, the physician has a duty to disclose to the patient the possibility of such an outcome and to explain, in lay terms, the complications that might possibly occur. Plaintiffs allege that did not occur in this medical malpractice case.

Ms. Green and her husband met with Dr. Smith on several occasions. Ms. Green alleges that she told him that she would not have surgery if anything could happen to her left leg. She also alleges that on several occasions, Dr. Smith promised her that nothing would happen to her left leg.

Dr. Smith planned a complicated front and back surgery with installation of rods and screws. Plaintiff suffered from diabetes and had a risk of artery disease and infection. Both complications occurred during or after the July 22, 2002 surgery. A vascular repair of the occluded artery did not work. Plaintiff’s leg lost oxygen for so long that she suffered neurological damage that rendered her leg useless.

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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’S TRIAL BRIEF
NATURE OF ACTION

This is a medical malpractice against Stan Smith, M.D., and his employer, the Universal Hospital. Plaintiff, Joan Green, alleges that negligent informed consent led her to undergo a back surgery in July 2002, and that complications therefrom left plaintiff completely disabled.

PARTIES AND COUNSEL

Plaintiff, Joan Green, is a 65-year-old resident of Sacramento, who suffered a right leg amputation following an accident in 1986. Plaintiff, Bobby Green, is her husband, who is seeking loss of consortium damages. They are represented by Tim Brown, Attorney at Law.

Defendant, XYZ Corp. operates the Universal Hospital (UH). Defendant, Stan Smith, M.D., is employed as a physician and professor by the UH Medical Center. Defendants are represented by David Brown, Attorney at Law.

FACTUAL BACKGROUND

Joan Green is a married Caucasian woman who was born on XX/XX/1944. Her health was good until 1986 when she was in a pedestrian versus truck accident that almost killed her. She suffered a right leg above the knee amputation, a degloving of her right arm, and other injuries. Her left leg was broken, but healed. After recovering, she was able to drive and do many household activities using her left leg. She used her wheelchair much of the time, but in 2002, she was finally fitted with a usable prostheses. However, she did have significant low back pain, diabetes, Krohns disease, and had been a smoker for 30 years until 2001. Her physician in Sacramento suggested a consult with an orthopedic surgeon at UH. An appointment was made with Stan Smith, MD.

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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 case and its proceedings.)

22. Said willful and reckless misconduct by defendants Wellness and Jones falls outside the purview of C.C.P. § 340.5 and cannot be reasonably interpreted as acts or omissions occurring within the context of substandard professional health care services, but rather more rationally falls within the context of a gross mis-diagnosis, battery and mistreatment of the Plaintiff.

23. Therefore, said Willful and Reckless Misconduct and Battery by the defendants and each of them, was oppressive and malicious within the meaning of Civil Code §3294 in that said defendant’ conduct was willful, wanton, malicious, oppressive and done with conscious disregard to Plaintiffs rights and safety and in that it subjected plaintiff to cruel and unjust hardship, and injury, and which justifies an award of exemplary and punitive damages in an amount to be determined at trial.

24. As to the other causes of action Plaintiffs damages are not limited by M.I.C.R.A. This cause of action has been pleaded in the alternative.

WHEREFORE, Plaintiff prays for judgment as follows:
1. General damages in the maximum amount provided in law;
2. For past and future medical, hospital, rehabilitation and incidental expenses for care and treatment, according to proof at trial;
3. For past and future lost earnings, and for lost earning capacity, according to proof at trial;

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