Articles Posted in Medical Malpractice

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

Plaintiffs’ Trial Brief on Substantial Contributing Factor; There is No Apportionment of Causation (Espinosa)MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical negligence action wherein the minor Plaintiff, KYLIE SMITH, suffered severe birth injuries. There will be expert testimony on the issue of causation. The defense may argue that the Plaintiffs must show by a reasonable medical probability that a defendant caused the injuries by a margin of 51%. The defense may argue that it can ask the expert to apportion the injury between factors that caused the injury. Then because the expert won’t do that, the defense then claims there is no testimony as to a reasonable medical probability. This is not the current state of the law in California.

Plaintiffs are not required to quantify the percentage on causation. Plaintiffs experts need only testify whether the events were a substantial factor (BAJI No. 3.76). The inability to pin down the exact extent to which defendants’ conduct contributed to the outcome is immaterial for the purposes of causation. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1317-1318).) [I]t was not necessary that plaintiff prove any particular apportionment as was required by the trial court. (Id. at p. 1321.)

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

Question: Are medical malpractice plaintiffs eligible to recover prejudgment interest on their jury award when their statutory offer to settle has been rejected?

Plaintiffs ELLEN GREENE and PETER GREENE, minors, will move the Court for an order awarding and adding prejudgment interest to the judgment in favor of plaintiffs ELLEN GREENE and PETER GREENE, minors, and against defendant KENNETH B., M.D., pursuant to Civil Code §3291 and Code of Civil Procedure Section §998, in the amount of $120,384.75, as of November 24, 2003; and $281.93 daily interest from and after February 4, 2005, to the date of entry of judgment, based upon the jury’s verdict in this medical malpractice action of January 12, 2005, as follows:

Past economic loss: $ 53,300
Future economic loss: $145,500
Non-economic loss $830,250
reduced from $3.8 million
to $830,250 per the
declaration of economist

Peter Formuzis, Ph.D.

Total: $1,029,050

Note: If the Jury’s Verdict for non-economic damages is reduced per Civil Code Section 3333.2, from $3.8 million to $250,000, and without any increase for inflation since 1975, the amounts become:

Past Economic Loss: $ 53,300
Future Economic Loss: $145,500
Non-economic Loss $250,000
Total: $448,800

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

PLAINTIFFS’ EXPERTS ARE REQUIRED TO TESTIFY ONLY AS TO WHETHER THE CAUSATION WAS A SUBSTANTIAL FACTOR – AND THEY ARE NOT REQUIRED TO QUANTIFY THE PERCENTAGE OF INJURY

Plaintiffs’ experts are required only to testify whether a cause of injury is a substantial factor and this has long been the rule in California: The law defines cause in its own particular way. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. (BAJI No. 3.76).

And as the USE NOTE states in BAJI, [t]his instruction, and the Comment thereto, were approved in Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314 …. (BAJI 3.76 (1997 Supp.).) This situation is almost directly on point with Espinosa. In the Espinosa case, the minor plaintiff suffered from a brain injury which had three possible contributory causes, one of which was clearly not due to the defendants’ negligence.

During the presentation of the plaintiffs’ case at trial, the plaintiff’s expert on causation testified that there were three time frames in terms of the factors that are involved in causing this child’s condition, chronic, sub-acute, and acute. (Emphasis in original.) (Id. at p. 1311.) The expert also testified that he could not quantify the extent of the interrelationship between these three time frames as a cause of plaintiff’s injury. After the conclusion of plaintiffs’ evidence, the Court granted a non-suit because the plaintiff had not sufficiently established the element of causation between the defendants’ acts and Plaintiff’s brain damage.

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

MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION

This is a wrongful death action involving the death of Trevor Smith, who was a forty-one-year-old father and husband from Sacramento. He died of cardiac arrest following a lengthy period of multi-organ failure. Plaintiffs assert Defendants failed to properly diagnose and treat his condition.

Certain of defendants’ expert witnesses in the pending case may testify to opinions on causation and the standard of care concerning the treatment. Some of the expert testimony may be couched in terms of “medical possibilities” rather than “medical probabilities.” California Evidence Code section 350 limits admissibility of evidence to “relevant evidence.” Relevant evidence is evidence “having some tendency in reason to prove or to disprove any disputed fact of consequence in the action”, that is, evidence that is probative of some disputed issue in the case. See Evidence Code section 210. Thus, evidence is irrelevant if it has a tendency to prove or disprove a disputed fact of consequence only by reason of drawing speculative or conjectural inferences from such evidence. On the basis of this definition, defendants’ expert testimony may be irrelevant if it does not establish causation or the standard of care to a reasonable medical probability.

Section 352 of the Evidence Code permits the Court to exclude probative evidence if it is otherwise time-consuming, prejudicial, confusing or misleading. We are interested in medical probabilities, not possibilities, conjecture and/or speculation.

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

The Espinosa court also held that having demonstrated the substantial factors in causing plaintiff’s brain damage, It was not necessary that plaintiff prove any particular apportionment as was required by the trial court. (Espinosa, supra. 31 Cal.App.4th.at p. 1321.)

The underlying facts of the Espinosa case are similar to the present action. Both involve indivisible injuries which were alleged to have been caused by the defendants in relation to the events surrounding the birth of the Plaintiff. Both involve experts who will not apportion the degree of damage between these points in the medical time line.

By asserting that the Plaintiffs’ expert must quantify and give percentages of injury at each stage, the hospital is misstating the law and trying to manufacture a causation issue which does not exist.

The Judicial Council Task Force on Jury Instructions has published jury instructions on the issue of causation which incorporate Espinosa, Instruction 340 provides as follows:
A substantial factor is a factor that a reasonable person would consider to be a cause of the harm but is more than a trivial factor in causing it. (Jud. Council Task Force on Jury Inst. No. 340, at p. 93.)

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

II MEDICAL OPINION TESTIMONY MUST BE TO A REASONABLE MEDICAL PROBABILITY

An expert witness – including a medical doctor – must testify on issues of the standard of care, causation and damages, in the field of his expertise, to a reasonable medical probability. Clearly, “[a]bsolute proof or mathematical demonstration is not required.” (Foremost Dairies v. Industrial Acc. Com. (1965) 237 Cal. App.2d 560, 568-569, citing Santa v. Industrial Ace. Com. (1917) 175 Cal. 235, 237.) However, an expert must testify to a reasonable medical probability as opposed to offering mere guess work, speculation, conjecture or bare possibilities.

Conversely, if the expert cannot testify as to a reasonable medical probability as to one of the elements of medical negligence – standard of care, causation, or damage – such testimony cannot be admitted. This fundamental principle that an expert must testify to a reasonable medical probability was stated in Rowley v. Bunnell (1968) 257 Cal. App.2d 324, where establishing the time of death of two testators was at issue:

“Medical witnesses need not testify positively to support a finding of proximate cause. Their opinion of-the probabilities is sufficient for that purpose.” (Emphasis added.) (Rowley, supra, 257 Cal.App.2d at p. 341.) See also Tannyhill v. Pacific Motor Transportation Company (1964) 22 Cal. App.2d 511,521, citing to Travelers Insurance Company v. Industrial Ace. Corn. 22 Cal.2d 685. (See Robertson v. Leigh (1957) 153 Cal. App.2d 730.)

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

Consequently, Plaintiff submit Judicial Council jury instructions Numbers 340 and 341 on the issue of causation. The above instructions are in accord with BAJI: There may be more than one cause of an injury. When [[negligent] [or] [wrongful] conduct of two or more persons] [or [[negligent] [or] [wrongful] conduct and a defective product]] contribute[s] concurrently as [a] cause[s] of an injury, [the conduct of] each is a cause of the injury regardless of the extent to which such contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. [It is no defense that the [negligent] [wrongful] conduct of a person not joined as a party was also a cause of the injury.] (BAJI No. 3.77.)

And the Second District Court of Appeal has the following language on the use of BAJI No. 3.77: One purpose of BAJI 3.77 is to explain to the jury that plaintiff need not prove that the defendant’s negligence was the sole cause of plaintiff’s injury in order to recover. Rather, it is sufficient that defendant’s negligence is a legal cause of an injury, even though it operated in combination with other causes, whether tortious or non-tortious. (Logacz v. Limansky (2d Dist. 1999) 71 Cal.App.4th 1149, 1158.)

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In Schnear v. Boldrey (1972) 22 Cal. App.3d 642, plaintiffs appealed a judgment for neurosurgeon Dr. Boldrey on the ground that the trial court had committed error in allowing defendant’s expert to speculate as to the possible causes for plaintiff’s blindness following neurosurgery. The First District Court disagreed, stating that:“… The context and totality of his testimony clearly shows that he was testifying as to medical probabilities, giving what in the light of medical science appeared to be the most probable explanation of the event.” Schnear v. Boldrey, supra, 22 Cal. App.3d at p. 484.

Even where a case goes to the jury with a res ipsa loquitur instruction, medical experts are still required to testify to probabilities rather than bare possibilities or conjecture. In Hale v. Venuto (1982) 137 Cal. App.3d 910, 919, 187 Cal. Rptr. 357, the court found that expert testimony to establish probability of negligence (where plaintiff suffered neurological damage after knee surgery) “need only afford reasonable support for an inference of negligence from the happening of the accident alone,” citing Tomei v. Henning (1967) 67 Cal.2d 319, 431 P.2d 633, where the issue was negligence in suturing plaintiff’s ureter during a hysterectomy.

III CONCLUSION
Where a defense expert speculates as to the cause of plaintiffs’ damages, standard of care, causation and the surrounding circumstances the testimony should be excluded. It is the mere speculation as to possible damage that the plaintiffs seek to preclude on the grounds that they are irrelevant, or, if slightly probative, that jurors will be confused and misled on what amounts to mere speculation, guess work and conjecture.

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When patients receive medical treatment there is generally a very high expectation that the results will be positive. However, that is not always the case. And in those cases where the outcome is either unexpected or is complicated, there will come a moment when the physician and the patient will have to communicate about how to resolve the situation. At that point the physician will be faced with a dilemma: should he or she apologize or express some regret.

Traditionally, physicians were discouraged from doing so because their actions might be interpreted as an admission of negligence or wrongdoing. The fairly recent emergence of so-called “apology” statutes in many states is making it easier for physicians and health care providers to have a more honest and open discussion with patients about such matters.

These discussions benefit both parties and often go a long way to resolving concerns about the treatment outcome without expensive medical malpractice litigation. “Although a physician may wish to tell a patient when he has made a mistake, lawyers often order doctors to say nothing,’’ wrote University of Florida law professor Jonathan R.Cohen in the Southern California Law Review. “The physician’s silence may then trigger the patient’s anger. This alienation may then prompt the patient to sue.”

Many states now have “apology” or “I’m sorry” statutes. Legislatures are doing a pretty good job of enacting legislation that facilitates more honest and forthright communication without the fear of resulting lawsuits. The statutes vary slightly from state to state, but all are written with the above-stated goal as their central purpose.

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The California Medical Board has permitted a doctor to keep his license after committing medical malpractice by helping an unlicensed doctor perform illegal abortions

The doctor, who runs a cash only abortion business in Torrance, was also charged with seven other cases of incompentence and negligence.

The charges against the doctor arise from actions of helping another doctor perform illegal abortions.