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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/personal injury case and its proceedings.)

June 28,2006: Hemorrhagic Shock and Cardiac Arrest

On June 28th, plaintiff’s blood pressure again dropped and he was diagnosed with another massive abdominal bleed. A central venous catheter was placed in his groin by Dr. Stuart. A third emergency surgery was performed by Dr. Green, Dr. Smith and Dr. Lee. A major hemoperitoneum was discovered with over five liters of blood intraperitoneally in the abdomen. It was not until the surgery on the 28th that Dr. Smith and Dr. Lee finally discovered the source of bleeding, a laceration at the posterior aspect of the a bifurcation and an associated kissing laceration of the left common iliac vein. The two lacerations were repaired and the abdomen was left open. Two days later, another laparotomy was performed and plaintiff’s abdomen was closed.

What was thought to be an outpatient procedure turned into a 35-day stay in ICU with multiple complications and two near death experiences. Plaintiff was finally released from the hospital on July 21, 2006, totally disabled.

SUMMARY OF ARGUMENT
Defendant, Dr. Lee’s Motion for Summary Judgment must be denied based upon the following:
1) Defendant has failed to meet his burden of proof, the evidence presented does not preclude the trier of fact from finding that it was more probable than not that his treatment fell below the standard of 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/personal injury case and its proceedings.)

June 28, 2006: Hemorrhagic Shock and Cardiac Arrest

On June 28th, Plaintiffs blood pressure again dropped. Right femoral and venous lines were placed in his groin by Dr. Stuart. A third emergency surgery was performed by Dr. Green and Dr. Smith. A major hemoperitoneum was discovered with over five liters of blood intraperitoneally in the abdomen. It was not until the surgery on the 28th that Dr. Smith and Dr. Green finally discovered the source of bleeding, two totally separate injuries, a laceration at the posterior aspect of the aortic bifurcation and an associated kissing laceration of the left common iliac vein. The two lacerations were repaired and the abdomen was left open.

These injuries were four to five centimeters away from the first series of injuries. Two days later, another laparotomy was performed and plaintiff’s abdomen was closed. These newly discovered injuries could have been caused from two separate events and certainly were caused by separate instrumentalities then that which lacerated plaintiff’s iliac vein, mesentery, and small bowel on June 16th. As such, they are subject to two additional general damage recoveries, each in a separate amount not to exceed $250,000.

What was thought to be an outpatient procedure turned into a 35-day stay in ICU with multiple complications, two near death experiences and months of recuperation. Plaintiff was finally released from the hospital on July 21, 2006, totally disabled. (See Part 5 of 8.)

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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 wrongful death/elder abuse case and its proceedings.)

Plaintiffs Cannot Establish Causation: Nothing the Universal Medical Center Staff, or Dr. Greene, Did or Failed to Do Caused or Contributed to Mr. Ryan’s Death, as He Was Clinically Dead When He Arrived at the Emergency Room

Mr. Ryan was found in full cardiac arrest in his home. Paramedics arrived on scene approximately 15 minutes after Mr. Ryan was first found unresponsive, and he did not respond to the advanced life support efforts rendered by the paramedic team for over 30 minutes, between 2251 and 2322. In other words, by the time Mr. Ryan arrived at Universal, he had been unresponsive and lifeless (i.e., dead) for approximately 45 minutes. The emergency room staff undertook further resuscitation efforts which were overseen by Dr. Greene for yet another 23 minutes, with no success. Dr. Fine has reviewed the medical records from Universal which reflect the treatment rendered during the code, the medications given and the efforts undertaken to revive Mr. Ryan. It is her expert opinion that not only was this care well within the standard of care for emergency room treatment, but that the code could have been called even earlier than it was.

It is Dr. Fine’s opinion that Mr. Ryan was clinically dead by the time he reached the hospital, and there was nothing the staff or Dr. Greene could have done that would have brought Mr. Ryan back to life. Because Mr. Ryan was already dead on arrival at the hospital, nothing the hospital did could have caused his death, which had already occurred. Therefore, plaintiffs cannot establish the necessary elements of breach of standard of care or causation, and summary adjudication as to their wrongful death cause of action against Universal must be granted.

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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 brain injury/automobile accident case and its proceedings.)

SUMMARY OF PLAINTIFF’S LOSS OF EARNINGS

At the time of the accident, Ms. Smith was working with LexisNexis. She initially took some time off from work after the car accident and then was able to return to work but at a lighter reduced schedule. Some difficulties arose at work with her inability to work full-time and her ongoing disability. As a result, Ms. Smith suffered additional ongoing stress from work environment.

Ms. Smith’s pre-accident employment reviews were outstanding. She was clearly a star in the LexisNexis sales field. However, she suffered a severe inability to perform her job post-brain injury. She was eventually terminated by LexisNexis in March, 2008.

Ms. Smith is claiming loss of earnings as follows:

2006: $ 20,000.00
2007: $ 25,000.00
2008: $ 125,000.00
TOTAL: $ 170,000.00

Ms. Smith has been seen by Dean Black, a vocational rehabilitation expert. Mr. Andersen has projected a substantial loss of earnings. Comparing Ms. Smith’s pre-incident loss of earnings to her potential post-incident loss of earnings, Ms. Smith can be anticipated to suffer loss of earnings in excess of $500,000.00.

Ms. Smith is optimistic that her condition will improve and that she will be able to return to some form of active employment.

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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 elder abuse/medical malpractice case and its proceedings.)

PUNITIVE DAMAGES

Civil Code §3294 is the statutory authority for a claim for punitive damages. This statute states:

(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

Plaintiff alleges “Defendants” acted maliciously toward her with specific intent to cause injury, and as such, their conduct was despicable, and carried out with a willful and conscious disregard of the rights of plaintiff. She also alleges “Defendants” acted in a way which was fraudulent malicious and/or oppressive. It is unclear if plaintiff alleges the employees of defendants acted with malice, or if the corporate managing agents themselves did. (See Part 11 of 11.)

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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/personal injury case and its proceedings.)

June 24,2006: Massive Bleed and Cardiac Arrest
Eight days after the initial surgery, plaintiff suffered a dramatic drop in blood pressure, was bleeding from his nose, and had a severe GI bleed. Dr. Lee placed an arterial and femoral line in plaintiff’s groin to measure his blood pressure and rapidly infuse blood. The line is placed using a guide wire which is inserted in the groin and up the iliac vein approximately 15-20 centimeters into the area of the bifurcation of the aorta. A hard rigid catheter is placed on top of the guide wire which, if erroneously placed, can cause injury to the aorta.

Gastroenterologist, Sandrina Ward, M.D., performed an emergent upper endoscopy to determine the etiology of the massive gastrointestinal bleeding. Dr. Ward ruled out any source of bleeding in the upper gastric tract.

From the abdominal bleeding, plaintiff suffered from abdominal compartment syndrome and went into respiratory arrest, CPR was performed, and he was emergently taken to the operating room where Dr. Green and Dr. Lee performed a laparotomy (opening of his abdomen). Dr. Green discovered a large hemoperitoneum, an enteral defect in the small bowel interloped mesenteric interstices. The injury was directly opposite and facing a suture which was used by Dr. Green to repair the mesenteric injury during Plaintiff’s original surgery on June 16th. Neither Dr. Green nor Dr. Smith identified this injury to the small bowel during the original surgery on June 16th.

Following the repair to the small bowel, Plaintiff’s abdomen was left open. Two days later, on June 26th, Dr. Green performed another laparotomy. Dr. Green failed to identify any additional sources of bleeding and plaintiff’s abdomen was closed.

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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 vehicle accident/medical malpractice case and its proceedings.)

FACTUAL BASIS OF THE CASE

Plaintiff’s assertion is that plaintiff Kathy White went ATV riding with her fiance and his children. One son, a minor, rented an ATV without receiving the statutorily required training session in handling the ATV, when that minor and the adults doing recreational driving lacked the safety certificate required by law if the minor is not given specific safety training. Vehicle Code §38503. No person under the age of 18 years, on and after 1990, shall operate an all-terrain vehicle on public lands of this state unless the person satisfies one of the following conditions:

(a) the person is taking a prescribed training course under the direct supervision of a certified all-terrain vehicle safety instructor;
(b) The person is under the direct supervision of an adult who has in their possession an appropriate safety certificate issued by the state, or issued under the authority of another state;

(c) The person has in possession an appropriate safety certificate issued by this state or issued under the authority of another state.

Both the company defendant, BJ’s ATV rentals, and the owner, operator, and developer and implementor of policies for BJ’s ATV, John Black, knowingly and intentionally failed to show the youngster the safety methods needed for that rental to be safe, and thereby violated the applicable statute. As a result, the failure of the youngster to handle the ATV properly in a difficult situation caused an accident that resulted in the fracture of Ms. Kane’s wrist, the kind of damage the law was passed to prevent, in a injured person of the class the law was designed to protect.

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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 personal injury cases present such issues to the court.

(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.)

Defendants, The Surgery Center, PC., and Ellen Brown, O.T.R., submit the following trial brief on causation in support of Defendants’ proposed special jury instructions.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical negligence action in which Plaintiff alleges negligent treatment by Defendants during hand therapy following repair of a distal radius fracture of the left wrist resulting in Plaintiff’s Complex Regional Pain Syndrome.

As the Court is aware, in medical malpractice cases, the plaintiff must establish each of the following basic elements:
(1) the duty of the professional to use such skill, prudence, and diligence as any other member of her/its profession commonly possess and exercises;
(2) a breach of that duty;

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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/birth injury case and its proceedings.)

THE NATURE OF WRONGFUL LIFE/ WRONGFUL BIRTH ACTIONS

Wrongful Life And Wrongful Birth Actions Are Forms Of Professional Negligence Claims.

The courts in California recognize wrongful life and wrongful birth as a particular variety of the more common cause of action for professional or medical malpractice. (Barragan v. Lopez (2007) 156 Cal.App.4th 997, 1004.) The plaintiff in a wrongful life or wrongful birth action, like the plaintiff in a garden-variety professional negligence claim, must prove the following elements: (1) Defendant owed plaintiff a duty to use such skill, prudence and diligence of other members of his profession; (2) Defendant breached that duty; (3) A causal connection between the breach and any injury; and (4) Actual loss or damage resulting from the professional negligence. (Ibid.)

But the gravamen of the wrongful life/ wrongful birth claim is the claim that the child is born impaired with a genetic defect or medical condition and but for the defendant’s negligence, the child would not have been born to suffer the defect. (Ibid.) Stated differently, wrongful life/ wrongful birth actions are essentially actions for malpractice based on negligent genetic counseling and testing. (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 883.)

The term wrongful life generally refers to an action brought by the child to recover damages incurred as a result of being born with the medical condition. (Turpin v. Sortini (1982) 32 Cal.3d 220, 225.) The term wrongful birth generally refers to an action brought by the parents to recover damages allegedly incurred as a result of the child being born impaired. (Turpin v. Sortini (1982) 31 Cal.3d 220, 225.) Here, this is a wrongful life action brought by the child plaintiff although the mother plaintiff also sues for negligence.

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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/personal injury case and its proceedings.)

Gastroenterologist, Sandrina Ward, M.D. performed an emergent upper endoscopy to determine the etiology of the gastrointestinal bleeding. Dr. Ward ruled out any source of bleeding in the upper gastric tract that could account for the amount of blood or account for the fluid in plaintiff’s abdomen.

As a result of the abdominal bleed, plaintiff suffered an abdominal compartment syndrome and went into respiratory arrest, CPR was performed, and he was errergently taken to the operating room where Dr. Green and Dr. Lee performed a laparotomy (opening of his abdomen). Dr. Green discovered a large hemoperitoneum, an enteral defect in the small bowel interloped mesenteric interstices caused during the first surgery. Neither Dr. Green nor Dr. Smith identified the bowel injury during the original surgery on June 16th although it was present. To not identify same was negligent. The failure to identify and repair the hole in plaintiff’s bowel may be a separate and distinct injury giving rise to a separate cause of action and a cap on general damages of $250,000.

Following the repair to the small bowel, plaintiff’s abdomen was left open. Two days later, on June 26th, Dr. Green inspected and closed the abdomen. Dr. Green failed to identify any additional sources of bleeding.

As the vascular surgeon taking part in the laparotomy on the 24th, Dr. Lee was responsible for determining the source of the massive hemorrhage, including rulding out injury to the abdominal aortic bifurcation and the anterior wall of the left common iliac vein.

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