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 case and its proceedings.)

11. As a further direct and proximate result of Defendants’ negligence, Plaintiff suffered severe and debilitating pain, anxiety and emotional distress, and will continue in the future to suffer severe and debilitating pain anxiety and emotional distress, in an amount not yet determined but to be shown according to proof at trial.

12. As a further direct and proximate result of Defendants’ negligence. Plaintiff incurred medical expenses for past medical care, and will continue in the future to incur medical expenses in an amount not yet determined, but to be shown according to proof at trial.

13. As a further direct and proximate result of Defendants’ medical negligence, Plaintiff incurred losses in her earnings and earning capacity and will continue in the future to lose earnings in an amount not yet determined, but to be shown according to proof at trial.

14. On this cause of action, Plaintiff is entitled to all compensatory damages available against defendants for their negligence, including any and all Economic Damages, without limit, and all Non-Economic Damages, subject to the limitations of California’s Medical Injury Compensation Reform Act of 1975 (M.I.C.R A.).

COUNT TWO: WILLFUL OR RECKLESS MISCONDUCT/MEDICAL BATTERY
[Brought by Plaintiff Sura Bhandi as against all Defendants]

15. Sura Bhandi hereby incorporates by reference the foregoing allegations and realleges the same as though set forth in full herein.

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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.)

Complaint For Damages cont.

5. At all times mentioned herein, Defendants, and each of them, were the agents, principals, servants, or employees of each of the remaining Defendants, and were at all times acting within the purpose and/or scope of such agency, service and/or employment. Each Defendant, including Does I through 100, consented, ratified, permitted, encouraged, directed, and/or approved the acts of each other Defendant.

6. For the year prior to October of 2008, Plaintiff Sura Bhandi had consulted with and employed Defendants Wellness Center, Tim Jones, D.C., and DOES 1 through 100, inclusive, and each of them, to examine, diagnosis, treat and provide chiropractic care for soreness in her shoulders and back.

7. Defendants, and each of them, owed a duty to Plaintiff to exercise the degree of knowledge, skill, prudence and diligence as other members of their respective professions commonly possess and exercise.

8. Defendants, and each of them, breached their respective duties owed to Plaintiff, and failed to exercise the degree of knowledge, skill, prudence and diligence as other members of their respective professions commonly possess and exercise, including but not limited to the following:
A. Defendants, and each of them, negligently examined Plaintiffs injuries;
B. Defendants, and each of them, negligently failed to diagnose the true nature and extent of Plaintiffs injuries;
C. Defendants, and each of them, negligently prescribed treatment that made Plaintiffs injuries permanent and more severe;
D. Defendants, and each of them, negligently overrated the Plaintiff causing her permanent injuries requiring immediate surgery;
E. Defendants, and each of them, failed to render medical care with the knowledge, skill, prudence and diligence that is commonly possessed and exercised by competent chiropractors.

F. Defendants, and each of them, failed to properly refer Plaintiff to a competent medical provider, to address her medical concerns so she could attain adequate care.

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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.)

COMPLAINT FOR DAMAGES (1) Negligence/ Medical Malpractice; (2) Willful Misconduct and Battery
[Brought by Plaintiff Sura Bhandi as against all Defendants]
COUNT ONE: NEGLIGENCE/ MEDICAL MALPRACTICE

1. Plaintiff Sura Bhandi is, and at all times relevant to the matters resident of Sacramento County.

2. Defendant Wellness Center (WELLNESS) is a California corporation, which does business in Sacramento County, and which is engaged, among other things. in the business of rendering chiropractic and other health care and services to the general public for compensation, and which held itself out to the general public and to Plaintiff Sura Bhandi to be competent in rendering chiropractic and other care and services.

3. Defendant Tim Jones, D.C., is a chiropractor, licensed to practice in the State of California, who held himself out to the general public and to Plaintiff Sura Bhandi to be competent and skilled in rendering chiropractic and health care, and to render such chiropractic and health care with the same skill, prudence, and diligence as other members of his profession commonly possess and exercise.

4. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants DOES 1 through 100, inclusive, are unknown to Plaintiff who therefore sues said DOE Defendants by fictitious names.

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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.)

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 personal injury case present such issues to the court.

In Morales v. Thompson (1959) 171 Cal. App.2d 405, 407, the appellate court, citing former Vehicle Code section 488 (the predecessor to V.C. section 20013), noted that “the trial court properly precluded a police report plaintiff’s attorney sought to introduce…” As explained in Summers v. Burdick (1961) 191 Cal. App.2d 464, 470, Vehicle Code sections 488 and 488.5 (now sections 20012 to 20015, inclusive), preclude police reports from being admitted into evidence.

In addition, any witness statements contained within the report are inadmissible hearsay, and not subject to any recognized exception. Evidence Code section 1200, et seq.

Not only is the traffic collision report inadmissible, but the plaintiff should be precluded from introducing statements contained therein through the back door by way of their experts. As explained by the court in the recent case of Garibay v. Hemmat (2008) 161 Cal. App.4th 735, 743, an “expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural…” The expert in that case based his opinions from medical records which were hearsay, and therefore, the court concluded that the expert’s opinion based on assumptions of fact without evidentiary support has no evidentiary value. Id.

The court in Garibay disapproved of the back door method of admitting otherwise inadmissible evidence through experts: Physicians can testify as to the basis of their opinion, but this is not intended to be a channel by which testifying physicians can place the opinion of out-of-court physicians before the trier of fact. Id. In other words, experts should not be used as a method to put inadmissible evidence before the jury. “[T]he expert’s opinion may not be based on assumptions of fact without evidentiary support…” People v. Richardson (2008) 43 Cal.4th 959.

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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.)

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 personal injury case present such issues to the court.

Motion in Limine to Preclude Evidence of Traffic Collision Report

Defendants, X, Y, Z Medical Center and Edward W., M.D., hereby move for an in limine order precluding evidence of the traffic collision report prepared in regard to the Sacramento traffic accident giving rise to this accident. This motion is based on the grounds that the traffic collision report is not admissible as evidence pursuant to Vehicle Code section 20013, and on the grounds that the witness statements contained therein are inadmissible hearsay. It is also based on Evidence Code section 352.

The defendants request that the plaintiff be precluded from introducing the traffic collision report into evidence and that her counsel be precluded from exhibiting the report to the jury during the trial. The defendants also request that the plaintiff’s witnesses, including experts, be precluded from referencing the report and the contents thereof in their testimony and from basing any opinion on the contents of the report.

MEMORANDUM OF POINTS AND AUTHORITIES
I.
THE TRAFFIC COLLISION REPORT IS INADMISSIBLE

This medical malpractice action arises out of an auto versus pedestrian accident that occurred on July 2, 2006. Following the accident, a law enforcement officer investigated, and a traffic collision report was prepared.

That report is inadmissible, pursuant to Vehicle Code section 20013, which provides, No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident… In Box v. California Date Growers Ass’n (1976) 57 Cal. App.3d 266, the appellate court held that the trial court properly refused to admit into evidence either the police accident report or the diagram portion thereof.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this medical malpractice case and its proceedings.)

The following four blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.

SPECIAL INSTRUCTION #1 MUST BE USED BECAUSE THERE IS NO CACI INSTRUCTION THAT INFORMS THE JURY OF THE PLAINTIFF’S BURDEN IN ESTABLISHING CAUSATION

The other CACI instructions (CACI 400, as modified by CACI 500, and CACI 200) instruct the jury that the plaintiff must establish causation, but they do not instruct the jury as to what satisfies causation here. Plaintiffs incorrectly assert that establishing the burden of proof for the overarching action is equivalent to explaining the standard for causation.

Further, plaintiffs’ assertion that the phrase reasonable medical probability would be unduly confusing to the jury is without merit. Medical probability is not legalese; it is simply using the additional word medical to demonstrate that the probability must be judged by a medical professional rather than a layman. Any jury instruction contrary to Special Instruction #1 would provide the jury with a clear understanding of an incorrect burden of proof.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this medical malpractice case and its proceedings.)

The following four blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.

The court then proceeded to apply the substantial factor test to medical malpractice actions. Espinosa determined that causation is satisfied when the plaintiff produces evidence that to a reasonable medical probability, the plaintiff would have obtained a better result absent the defendant’s negligence. The court then decided the plaintiff’s expert had met that burden. Based upon Espinosa reliance on reasonable medical probability to establish causation in a medical malpractice case, it seem perfectly reasonable, if not necessary, to advise our jury of the specific requirement for medical causation.

Further, Espinosa cites Jones v. Ortho Pharmaceutical Corp. to establish that mere possibility [of causation] alone is insufficient to establish a prima facie case. Id. at 1316, citing Jones, (1985) 163 Cal.App.3d 396. The Espinosa court relied on Jones for the proposition that a possible cause only becomes a probable cause when, in the absence of other reasonable causal explanations, it becomes more likely than no that the injury was a result of a defendant’s action. Espinosa, Cal.App.4th 1304, 1316. However, Espinosa distinguished Jones only as to the extent that the Jones court proceeded to apply the 50% factor rule , which is not applicable in general medical malpractice cases. Id. at 1319. As the so-called 50% factor rule is completely irrelevant to the Special Instruction #1 being requested in this matter, the Espinosa court’s distinction of Jones is clearly inconsequential, and plaintiffs’ mention of it is made purely to distract the court from the issue of a proper jury instruction on medical causation.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this medical malpractice case and its proceedings.)

The following four blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.

ESPINOSA v. LITTLE COMPANY OF MARY HOSPITAL AFFIRMS THE REQUIREMENT THAT CAUSATION BE ESTABLISHED TO A REASONABLE DEGREE OF MEDICAL PROBABILITY IN A MEDICAL MALPRACTICE ACTION

Espinosa specifically applies the substantial factor test to medical malpractice actions, to determine that the element of causation is satisfied when a plaintiff produces evidence to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability that the plaintiff would have obtained a better result. Espinosa v. Little Company of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-5. (Quoting, Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.)

Plaintiff’s understanding of Espinosa is entirely misguided. The Espinosa court did not address the issue of how the jury should be instructed regarding causation in a medical malpractice action. Rather, the issue before the court was whether the plaintiff actually presented expert testimony that could satisfy the plaintiff’s burden to prove causation to a reasonable medical certainty. In conducting its analysis on that issue, the Espinosa court began its evaluation by expressing support for the language of BAJI 3.76, as used in general negligence cases.

Indeed, only through careful and creative excerpts can the plaintiff manage to imply that Espinosa rejected the use of reasonable medical probability as a jury instruction.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this medical malpractice case and its proceedings.)

The following blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.

Defendant’s Trial Brief Re: Special Jury Instruction #1
IT IS UNDISPUTED THAT DEFENDANT’S SPECIAL INSTRUCTION #1 IS AN ACCURATE STATEMENT OF THE LAW FOR CAUSATION IN MEDICAL MALPRACTICE
Causation Must Be Proven Within A Reasonable Degree of Medical Probability

The law is well settled that in a personal injury action, causation must be proven within a reasonable medical probability based on competent expert testimony. Jennings v. Palomar (2003) 114 Cal.App.4th 1108, 1118. Defendant’s Special Instruction #1 states precisely the test for the jury to evaluate causation: Causation must be proven within a reasonable medical probability based upon competent expert testimony. Defendant’s Special Instruction #1 is thus well suited to advise the jury of the requisite standard, since it is a proper and accurate statement of controlling law.

CACI 430 Fails to Apprise the Jury of The Standard of Causation For Medical Malpractice
CACI 430 states in full that:

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial fact. It does not have to be the only cause of harm.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this medical malpractice case and its proceedings.)

IN ESPINOSA v. LITTLE COMPANY OF MARY HOSPITAL, THE SECOND DISTRICT REJECTED ARGUMENTS IDENTICAL TO DEFENDANTS’ ARGUMENTS HERE

Included in the Sources and Authorities supporting CACI 430, is a Court of Appeal case from the Second District, Espinosa, which applies the substantial factor standard specifically to a medical malpractice case. As the Honorable Justice Croskey stated in Espinosa, in cases alleging negligence, the proper test for proving causation is the one set out in BAJI no. 3.76 (8th ed. 1994 bound vol.): The law defines cause in its own particular way. A cause of injury, damage, loss of harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. (31 Cal.App.4th at 1313.) CACI 430 restates the substance of BAJI 3.76, in somewhat more plain and understandable language. Defendants ignore this controlling Second District case.

Also in Espinosa, as here, the Defendants relied primarily on Jones v. Ortho Pharmaceutical Corp (1985) 163 Cal.App.3d 396. (Compare, 31 Cal.App.4 th at 1320-1321, with Defendants’ Special Instruction # 1.) As the Second District noted, Jones is not a medical malpractice case. (31 Cal.App.4 th at 1320.) Perhaps more importantly, as the Second District also noted, Jones is distinguishable because it concerns causes of cancer which are yet unproven, which causation had to be proven by testimony about the statistical risk or likelihood of brain damage. (31 Cal.App.4th at 1320.) In Jones, as in the present case, causation does not depend on statistical probabilities. As Espinosa, here it also would be error to fail to apply the substantial factor standard of causation.

3. CACI INSTRUCTIONS OTHER THAN CACI 430 INSTRUCT THE JURY ON THE BURDEN OF PROOF AND THE DEGREE OF PROOF

Defendants seek to supplement CACI 430 apparently because it does not require that Plaintiffs establish causation to a reasonable degree of medical probability. To the contrary, reasonable medical probability means more likely than not. (See, Espinosa v. Little Company of Mary Hospital, supra, 31 Cal.App.4th at 1316.)

CACI instruction no. 400, with medical added before negligence as required by CACI Instruction no. 500, instructs the jury that the Plaintiff must prove the elements of medical negligence, including causation. CACI instruction no. 200 instructs the jury on the requisite degree of proof to establish the elements of the negligence cause of action. Therefore, together CACI nos. 200 and 400 [as modified by 500] instruct the jury that Plaintiff must prove the elements of his case, including causation, by the more likely than not standard. An additional instruction on this same issue, stated in legalese ( reasonable medical probability ) rather than plain language ( more likely to be true than not true ), would place undue emphasis on Plaintiffs burden and confuse the jury.

4. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the court refuse Defendants’ special instruction # 1.

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