Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.
(Please also 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.)
STATEMENT OF THE CASE
During the course of the trial, the evidence of Dr. Hill’s negligence was based upon her failure to appropriately confirm the differential diagnosis of dopa responsive dystonia by offering the patient a trial of Sinemet (L-dopa). The evidence was undisputed that the diagnosis is made in one of two ways: a trial of L-dopa, or a lumbar puncture with special assay. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
None of the experts testified to an alternative method of diagnosis or treatment under the circumstances at bar. Neither Dr. Hill nor any of the other expert witnesses suggested that she recommend a lumbar puncture. Plaintiff therefore objected to Jury Instruction 506, entitled Alternative Method of Care when offered by the defendant, since same would in effect remove the issue of standard of care from this jury. Initially the court agreed that the instruction may not be warranted. But after argument of counsel, the court, over objection, gave the requested instruction. The instruction states as follows:
A pediatric neurologist is not necessarily negligent just because she chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. (CACI 506)
Because the court elected to give this instruction, plaintiff’s counsel again requested a modified informed consent instruction (this instruction had previously been denied), arguing that if the court found sufficient facts to support an alternative method instruction, those same facts entitled the plaintiff to be informed of this alternative and therefore required an informed consent instruction. Over the objection of plaintiff, the court declined to give same. Despite being aware that informed consent was pled as a separate cause of action, the court held the instruction was not supported by the law and that defendant would be prejudiced at that time by this new theory.
After deliberating one and a half days, at approximately 4:00 p.m. on Friday, the jury forwarded a question based on Jury Instruction 506, Alternative Methods of Care. They requested the court to clarify what is meant by medically accepted method of treatment or diagnosis. (Exhibit No. 1 is a true and correct copy of the written question submitted by the presiding juror, No. 1556, on behalf of the entire jury regarding the meaning of the CACI 506 language.) Plaintiff contends that this question evidenced the jury’s confusion over the instruction. Plaintiff’s counsel requested a hearing on how to answer the question, but before the hearing could be held the jury returned with a verdict, 9 to 3 for the defendant, presumptively based upon the Alternative Care instruction. (See Part 3 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.