Articles Posted in Real Cases

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

2. FAILURE TO REFER TO A SPECIALIST:

After having tried to close the open wound for six months, or perhaps even a year, the standard of care would require Dr. X. to send Mr. Smith to a wound specialist or a plastic surgeon. As the months and years went by, Dr. X. failed to refer Mr. Smith to an appropriate wound specialist or plastic surgeon.

It was critical to plainitff’s health that the open wound be closed by plastic surgery if necessary. This is because the skin acts as a barrier to infection. When the skin is broken, bacteria can enter. Dr. X. testified on page 44, lines 8 through 11:

“Q. So when the skin is broken, there’s always a risk of infection?
A. There’s a risk of infection when the skin is broken.”
3. STEROID INJECTION: “THE WRONG THING TO DO”

In the hospital Mr. Smith was confirmed with an MRSA infection in his wound. Dr. X. had injected this infected wound with Kenalog, a powerful steroid, on March 11 and March 19, 2002. Dr. X. testified on page 71, lines 14 through page 72 line 25:

“Q. Right. And would you agree that injecting an infected wound with a steroid such as Kenalog would be the wrong thing to do?

A. I would agree that injecting an infected wound with Kenalog would be the wrong thing to do.

Q. Why would it be the wrong thing to do?
A. Kenalog can interfere with the healing process and with the immune process.
Q. And tell me what you mean by that.
A. It can – – Kenalog can slow down the growth of fibroblasts which make new tissue and can slow down the growth of and thin the epidermis, the skin, and it can also slow down the – – reduce the effectiveness of the body’s inflammatory cells.
Q. So injecting an infected wound with Kenalog makes it harder for the body to fight the infection?
A. It could.

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MS, ADAMS

Ms. Adams is not a plaintiff. She is married and currently working in the Sacramento location of ABC Automobiles. Her deposition was taken and videotaped on April 1, 2008. Under current case law, her testimony will be admissible at trial. At her deposition Ms. Adams testified as follows:

1. She observed David Stevens’ offensive conduct on many occasions sexually harassing women at the office. She complained to both Mr. Armstrong and the corporate office. Nothing was done.

2. At a conference in San Jose, David Stevens asked her and another female employee of ABC Automobiles to have three-way sex with him. The women were offended and very uncomfortable with his comments. Ms. Adams reported this to the appropriate persons at ABC Automobiles. Again, nothing was done.

3. At a staff meeting on April 26, 2006, attended by Mr. Stevens, Ms. Webb led a discussion concerning inappropriate sexual behavior in the work place. Immediately after the meeting Mr. Stevens walked up to another female employee and pinched her buttocks. Ms. Adams complained to Bill armstrong but he did nothing.

4. Ms. White regularly complained to Amy Webb about Mr. Stevens’ inappropriate behavior. Ms. Black also complained to Bill Armstrong, in Ms. Webb’s presence.

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VIOLATION OF GOVT. CODE 12950.1

Under California Law, ABC Automobiles is subject to Government Code section 12950.1 (a) which requires the following :

“By January 1, 2006, an employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of their assumption of a supervisory position.”
ABC Automobiles violated this statute; it did not provide the two hours of sexual harassment training to Bill Armstrong, David Stevens, or anyone else at its Sacramento location until after May 2, 2006
EMPLOYEE OF THE YEAR

Incredibly, David Stevens was named Employee of the Year by ABC Automobiles despite all the company knew about him. He received the award in early 2006, approximately four months before he was finally terminated for years of sexual harassment. It is believed that one reason he got the award was because he and Bill Armstrong had set up the computers used by some of the females in their office so that the women had to use Mr. Stevens’ name to log on and do work. Thus, he got the credit for much of the work performed by those female employees.

One can only imagine how Ms. White and Ms. Black and the rest of the females in the Sacramento location felt when, despite all the sexual harassment, and despite all the complaints to Regional Director Bill Armstrong and the San Francisco corporate headquarters, ABC Automobiles named David Stevens Employee of the Year.

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

X. LIABILITY OF ABC HOSPITAL

The nursing staff at ABC HOSPITAL failed to summon the appropriate care for William Smith as he descended into quadriplegia on their ward and under their care.

A. STANDARD OF CARE: CALL A DOCTOR

ABC Hospital’s nurses admit they are trained to call a doctor when they note a significant change in condition:

Nurse Paul White on page 41, line 24 through page 42, line 4:

“Q. What have you been trained – – have you ever had any training on what to do if a patient was ambulatory and then suddenly became paralyzed?
A Yes.
Q. What did your training tell you to do?
A. We have to notify the doctor.”

Nurse Black on page 17, lines 3 through 10:

“MR. COLLINS: Q. Sir, do you recognize the phrase “change of condition.”
A. Yes, I do. Of course, there’s a big change in condition and smaller changes in condition, but yes, I do.
Q. In fact, you’re trained to call the doctor if there’s a significant change in condition, right?
A. That I am, yes.”

Nurse Black admitted the change in condition of plaintiff on March 25, 2002, looked like the onset of paralysis:

Page 17, line 11 through page 18, line 12:

“Q. Okay. Now if you can compare the assessment done on the night to the assessment you did on the day at 0810, was there a change of condition?
A. That’s correct, there are.
Q. In fact, it was a significant change of condition.
[objection omitted]
THE WITNESS: I’m having trouble – – oh, okay. On the neuro, yes, it is. She writes that he moves extremities, which would mean that he moved all of his extremities.

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

B. WAS A DOCTOR CALLED?

Nurse Brown (11 p.m. to 7 a.m. shift) claims she called Dr. Y. and told him the patient could not longer move his legs. She does not document that she gave Dr. Y. this critical information.

Nurse White states the nurses are trained to document that they notified the doctor of the change in condition:

Page 42, lines 6 through 16:

“A. We have to do a, you know, like a documentation of our observations.
Q. So in the medical records you’d document the fact that he could no longer move the legs?
A. Yeah.
Q. And you’d document that you notified the doctor?
A. On what case?
Q. You’ve been trained – –
A. Yeah, yeah, based on our training, yes, we’d do that.”

The written policy of ABC Hospital regarding contacting physicians states in part:

“ATTACHEMENT A
6. Be concise and organized in your presentation of appropriate information: state clearly why you are calling; what the problem is; get to the point.”

The policy goes on to state:

“IMPORTANT NOTES
1. All of the above should be carefully timed and documented.
2. Do not hesitate to get help from other sourced and higher authority such as: other physicians known to be within the facility; section, department and executive staff chiefs.”

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

Page 20, line 15 through page 21, line 8:

“MR. COLLINS: Q. Okay. So you noted that he couldn’t move his legs, and then you went about your duties on 4 West that day?
A. Yes sir.
Q. Did you tell the – – who was your supervisor?
A. The day shift supervisor position was shared. It was Sara Davies and Bobbi Edwards, who is now Bobbi English, and then the overall supervisor is Heather Jones.
Q. I’m sorry. Who is the day shift supervisor?
A. Sara Davies and Bobbi – – her name was Bobbi English (sic) at the time. She’s been remarried. It’s Bobbi English.
Q. Did you contact any of those people to tell them what was going on with Mr. Smith?
A. No, I did not.
Q. And you’ve been trained to do neuro assessments, true?
A. Yes, I have.”
Page 24, lines 6 through 18:
“Q. Okay. This form records the interventions that you do to assist the patient, right?
A. Yes.
Q. What does that mean, ‘interventions’?
A. It means to act within a process to – – for instance, to stop pain, to help with breathing if they’re having difficulty breathing.

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

C. NOTHING WAS DONE:

Nothing was done to help William Smith from 1:00 a.m. to 4:30 p.m. Nurse Brown tries to argue she called Dr. Y. and notified him of the patient’s status. Dr. Y. denies this. Nurse Brown failed to document she even told a doctor of his change of condition, a violation of the hospital’s policy and standard of care.

Even if Nurse Brown (an LVN) called Dr. Y. and he only said “start a Foley” she should have told her RN or charge nurse.

Allowing plaintiff’s paralysis to go untreated for fifteen and a half hours is a violation of the hospital’s standard of care. As Nurse Black testified on page 25, lines 15 through 16:

“The sooner you intervene in a process like that the better chance the patient has to recover.”
XI. LIABILITY OF DR. Y., M.D.

Dr. Y’s liability stems chiefly from the fact that Nurse Brown testified she told him of Mr. Smith’s paralysis and he did nothing except order a Foley catheter.

Nurse Brown’s deposition, page 37, lines 7 through 15:

“BY MR. COLLINS: Q. Did you specifically call Dr. Y. to tell him of the change in condition from generalized weakness but could ambulate with assistance to can’t move his legs, can’t ambulate?
A. Yes.
Q. Okay. What – – and you told him that?
A. Yes.
Q. And what did he say to you?
A. Just put Foley catheter.”

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

In his deposition (not yet transcribed) Dr. Y. admitted urgent intervention was needed as soon as it was noted William Smith could not move his legs. He stated that had he known the patient could not move his legs at 1:00 a.m. on March 25, 2002, he would have immediately gotten out of bed, come to the hospital, and called for a neurosurgical consult. He said he would do all this in order to try and stop or reverse the paralysis.

If the jury believes Nurse Brown, they will find Dr. Y’s lack of intervention to be below the standard of care, by his own admission of what he should have done. The deposition transcripts of Nurses Black, Brown, and White are referenced herein.

XII. LIABILITY OF DR. Z.,, M.D.

Dr. Z. is an infectious disease expert. He was called to see William Smith on March 23, 2002. His consult is referenced herein.

Dr. Z’s liability is based on his failure to act appropriately to investigate, identify, and stop an infection that later rendered Mr. Smith quadriplegic.

In his deposition taken February 17, 2004, Dr. Z. admitted on page 28, line 22 through page 29, line 10:

“Q. But you also thought there might be a secondary infection, true?
A. Yeah. I thought there might be an infection there as well.
Q. What was the basis for your belief that there might be an infection?
A. Well, whole area of his low back where the skin was, it looked kind of inflamed.

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

Page 30, lines 12 through 14:

“MR. COLLINS: Q. You said Dr. Y. was concerned about osteomyelitis under that area, right?
A. Under that infected wound.”

Page 43, lines 8 through 12:

“MR. COLLINS: Q. I’ll do it this way. Sir, you’ve been trained – you’ve had training on how to – what to do on a physical exam to rule in or out osteomyelitis, right?
A. Yes.”

Page 50, lines 2 through 15:

“Q. Did you perform a percussive exam of Mr. Smith’s back?

A. No.

Q. Or spine?

A. No.

Q. Have you been trained that that is one of the tools to diagnose
osteomyelitis?

A. If you’re thinking about it.

Q. So you have been trained that’s one of the tools, true?

A. If you think this might be some infection, yes, you can percuss there, yes.

Q. But you didn’t do it?
A. I didn’t think there was any need for it.”

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

Q. Was there any contraindication to giving William Smith, on March 23,
2002, vancomycin?
A. If after seeing this patient and his history and physical and his background and his medical condition, if I thought that he should also be on vancomycin, there is no contraindication.”

Page 97 lines 5 through 8:

“Q. On March 24th, 2002, you did not do a percussive exam on Mr. Smith, true?
A. I did not do it because I did not think there was any need for it.”

Page 117 lines 13 through 16:

“Q. You had him on Ancef, and Ancef had no therapeutic value whatsoever for this patient it turns out?
A. On the 26th when you find out he’s MRSA, yes.”

In summary, Dr. Z’s care of Mr. Smith was below the standard of care in the following areas:

1. Dr. Z. knew that he was being asked by Dr. Y. to evaluate whether Mr. Smith had osteomyelitis (infection in the spine). In fact Dr. Z. had previously treated Mr. Smith for osteomyelitis in 1991.

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