(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 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, 2) laceration of the mesentery, 3) small bowel perforation, 4) a posterior laceration of the bifurcation of the abdominal aorta, and 5) an anterior wall laceration of the left iliac vein. These iatrogenic injuries (instrument caused) do not occur absent someone’s negligence.
Although all the defendants in this case deny their own culpability for injuries to the aorta and adjoining iliac vein, each admits that all injuries were iatrogenic and they had to be caused by one of them. As set forth more fully in the motion filed concurrently herewith, plaintiff is entitled to a res ipsa loquitur presumption and the burden must shift to the defendants to produce evidence which establishes they did not cause one, or any, of plaintiff’s injuries.
THE SECOND ACT OF NEGLIGENCE IS A SECOND CAUSE OF ACTION
Although plaintiff suffered multiple injuries when Dr. Green placed the original trocar in the iliac vein, the mesentery and the small bowel, which commutatively giv e 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 Smith and Lee’s own expert, Dr. Robert White testified at deposition there are two separate and distinct injuries. Dr. White further testified that the injury to Plaintiff’s bifurcation of the aorta could not have been present during the June 16th surgery because Dr. Smith would have been able to see it. 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. (See Part 6 of 8.)
For more information you are welcome to contact personal injury lawyer, Moseley Collins.