| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

With respect to both the plaintiff and the defendant the Cal. Fair Employment and Housing Act was at all times mentioned within the complaint in effect, the plaintiff has standing to sue, and has been issued a Notice of Right To Sue by the Cal. Department of Fair Employment and Housing, served to Thomas Brown, Executive Director, S.H.P., by Owen White, District Administrator, 02/28/2006, and attached to the Third Amended Complaint.

Plaintiff states the dates and actions of the defendants that deny her the right to seek employment on the basis of age, association with employees, clients, and other applicants for employment, TAC, dated 02/05/2007.

Plaintiff states the dates and actions of the defendants that deny her the right to marry one, and all employees, of the defendants, TAC, dated 02/05/2007.

Plaintiff states the dates and actions of the defendants to intentionally inflict severe emotional distress, their actions and words to involve her case manager at Sacramento Mental Health, their transferring her to a different shelter, TAC, dated 02/05/2007.

Continue Reading ›

| by

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/brain injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

In Burciaga, the Court first determined that an emergency situation, as envisioned by § 2395, existed, as the newborn was in respiratory distress and in need of emergent care. Burciaga, supra, at 714. Next, the Court stated that, unlike other Good Samaritan statutes, California’s Good Samaritan Law applies to emergencies both within and without a hospital. Burciaga, supra, at 715-716. Further, §§ 2395 and 2396 are not limit[ed] to only those physicians treating patients outside the scope of the physicians’ specialties. Burciaga, supra, at 716. The heart of the application of the Good Samaritan statutes is the inquiry whether a duty of professional care pre-existed the emergency. Burciaga, supra, at 716. The Court concluded that defendant pediatrician owed no duty to the plaintiff newborn as he was not the pediatrician’s patient, and his obstetrician did not regularly refer patients to defendant pediatrician.

In the instant case, Dr. White was called by plaintiff Amy Brown’s obstetrician to emergently treat her following delivery. At that time, Amy Brown was blue and not breathing, and in obvious respiratory distress. As such, an emergency existed. Further, plaintiff Amy Brown was not Dr. White’s patient, nor had he ever treated her before. Dr. White was only available to treat plaintiff Amy Brown because he was present at XYZ Hospital treating his own patients. Thus, Dr. White’s treatment of plaintiff Amy Brown falls squarely within the bounds of the Good Samaritan Defense. As such, Dr. White cannot be liable for plaintiffs’ damages.

Accordingly, defendant Stuart White, M.D., is entitled to summary judgment.

Continue Reading ›

| by

(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.)

A medical practitioner is not to be held responsible merely because his treatment of a patient was not successful or was accompanied by untoward consequences. The practitioner is not omniscient or capable invariably of knowing that his professional acts will achieve the desired result; he is responsible only where it is established that he did not act with the knowledge or foresight of practitioners generally or as a reasonably skillful and experienced practitioner would have acted in the same circumstances.

The law does not require that a physician have the highest skill medical science knows. He or she is deemed to represent that he has only that reasonable degree of learning and skill possessed by practitioners of the same school or method in the locality and which is ordinarily regarded by those conversant with his type of practice as necessary to qualify him to engage therein. And the law makes allowance for human weakness in the application of skill and learning. The practitioner is required to use his best judgment in exercising his skill and applying his knowledge, but mere errors in judgment are not ground for liability unless the skill and judgment actually employed fall below the standard. Negligence on the part of a doctor is never presumed.

In a malpractice case, generally speaking, the doctor must be tested with respect to his knowledge and skill by the average knowledge and skill of practitioners of the same school of medicine in the locality where the doctor carries on his profession. It should be noted that Dr. Leonard was a general practitioner and did not claim to be a specialist, and that the amount of care to be expected from a general practitioner in a given locality is not as great as that expected from a specialist. (Allen v. Leonard (1969) 270 Cal.App.3d 209, 215-216.)

Continue Reading ›

| by

(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 16, 2006: Initial Surgery

Dr. Green’s placement of the first trocar or Verrees needle caused multiple vascular injuries, including a laceration to the left iliac vein, requiring immediate repair by a vascular surgeon. As a result, Dr. Smith and Dr. Lee were called to the operating room. Dr. Smith identified and repaired a 0.5 cm laceration to the left common iliac vein. During the course of the repair to the iliac vein, Dr. Smith placed DeBakey clamps in the area of the bifurcation of the abdominal aorta. As a vascular surgeon, Dr. Smith had the duty and the obligation to inspect the area and discover any additional sources of injury or bleeding. This would include inspecting the aortic and iliac vessels to rule out a more deep and penetrating vascular injury from the trocar.

Dr. Green and Dr. Smith examined the peritoneal cavity for other areas of injury. Dr. Green inspected the small bowel and mesentery and found another laceration to the mesentery. An injury to the small bowel was missed. (See Dr. Green’s June 16, 2006, Operative Report.) Plaintiff’s surgical site was closed and he was transferred to Universal Hospital.

June 19, 2006: Respiratory Failure
Three days after the original surgery, plaintiff was in respiratory distress. A CT pulmonary angiogram was performed and revealed a large right pulmonary arterial embolus. An IVC filter was placed by interventional radiologist, Dr. King.

Continue Reading ›

| by

(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.)

Those required assertions are made in some detail in Paragraphs 28 through 36 of the second amended complaint. Mr. Black is a defendant, and a series of allegations directed towards the defendants apply to him.

In addition to asserting a duty of care running to the plaintiff through the foreseeable harm which careless conduct by Mr. Black would cause, the allegations set forth in this complaint assert a legal duty to comply with specific statutory law designed to protect persons like the plaintiff, and that Mr. Black, like other defendants, breached that duty and caused harm.

The next stop for this defense firm, if it thinks it has the goods, is summary judgment, after discovery is completed. We believe that Mr. Black in fact was personally responsible for the failure of the rental company he owned and controlled and whose policies he personally dictated to give the training to a minor that would have prevented this accident, when such training was required by law, or to refuse to rent an ATV to a minor in the absence of such training or licensed supervision. We believe that when discovery has progressed to the point when summary judgment might be sought, there will be no more noise from Mr. Black or his lawyers.

But the only issue now before the court is the legal sufficiency of the allegations in the four corners of the complaint or reasonably inferred from those four corners, all as liberally construed, under applicable case law, in favor of the party opposing demurrer. This demurrer wastes the court’s time. (See Part 3 of 6.)

Continue Reading ›

| by

(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.)

Plaintiff will not be able to state a prima facie case of neglect by clear and convincing evidence. With regard to plaintiff’s pressure sore, it started out as a friction or shear injury that occurred during a transfer to or from her bed. Plaintiff’s expert will opine it occurred when plaintiff was getting occupational therapy. There can be no possible argument to equate this injury with the level of conduct necessary to entitle plaintiff to punitive damages. Such injuries can and do happen in hospitals, particularly with obese, totally dependant patients such as plaintiff.

The expert testimony at trial, and opinions of the treating physicians at the time, will that the worsening of the initial injury was a function of plaintiff’s underlying medical condition. Plaintiff’s experts have conceded this. Plaintiff will not be able to show, by clear and convincing evidence, that any of the alleged negligence that occurred after the initial injury caused further harm.

Similarly, the events of October 10, 2006, cannot equate with elder abuse. Plaintiff’s claim of inadequate monitoring cannot rise to the level of reckless or conscious disregard of plaintiff’s safety; prospectively there was no way any of the staff could have known how long it would take for the transport department to transport plaintiff back to her room. Further, the nurse who was caring for plaintiff exercised his judgment in addressing her blood pressure; he did not neglect her. Plaintiff’s liability theories are based upon a retrospective analysis together with assumptions unsupported by the evidence. The argument that the should have called a physician, or that he should have taken other measures to address plaintiff’s blood pressure cannot satisfy what is required to establish a prima facie case of elder abuse by clear and convincing evidence.

Continue Reading ›

| by

(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 16, 2006: Initial Surgery
Dr. Green’s placement of the first trocar or Veress needle caused multiple vascular injuries, including a laceration to the left iliac vein, requiring immediate repair by a vascular surgeon. As a result, Dr. Smith identified and repaired a 0.5 cm laceration to the left common iliac vein. During the course of the repair to the iliac vein, Dr. Smith placed DeBakey clamps in the area of the bifurcation of the abdominal aorta. As a vascular surgeon, Dr. Smith had the duty and the obligation to inspect the area and discover any additional sources of injury or bleeding. This would include inspecting the aortic and iliac vessels to rule out a more deep and penetrating vascular injury from the trocar. Dr. Smith claims that as of his surgery on June 16th there was no separate injury to the bifurcation of the abdominal aorta and no injury to the iliac vein in that area

Dr. Green and Dr. Smith examined the peritoneal cavity for other area; of injury. Dr. Green and Dr. Smith inspected the small bowel and mesentery and found a laceration to the mesentery. The third injury to the small bowel was missed. Plaintiff’s surgical site was closed and he was transferred to Universal Hospital.

June 19, 2006: Respiratory Failure
Three days after the original surgery, plaintiff was in respiratory distress. A CT pulmonary angiogram was performed which revealed a large right pulmonary arterial embolus. The following day, Defendant Dr. Stuart began treating Plaintiff for respiratory failure and complications of aspiration pneumonia and pulmonary embolism.

Continue Reading ›

| by

(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 Negligence Against Universal: The Treatment Rendered to Mr. Ryan in the Emergency Room at Universal Medical Center Was Within the Standard of Care

With regard to Dr. Greene and the care rendered in the emergency room, the standard of care for a medical professional is indicated as follows:

An emergency room physician is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful emergency room physicians would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as the standard of care. (CACI No. 501.)

The standard of care is determined by expert testimony. (Ibid.) In this case, in order to establish that Dr. Greene and Universal staff were negligent, plaintiffs must demonstrate by a preponderance of evidence that treatment rendered to Mr. Ryan in the emergency room by Dr. Greene and the Universal staff fell below the standard of care, specifically with respect to the resuscitation efforts in the emergency room. It should be remembered that a doctor is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. A medical practitioner is negligent only if he was not as skillful, knowledgeable, or careful as other reasonable medical practitioners would have been in similar circumstances. (CACI No. 505.)

Continue Reading ›

| by

(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.)

PLAINTIFF SEAN BLACK’S TRIAL BRIEF
THE PARTIES

Plaintiff: Sean Black, date of birth: XX/XX/1969.

Defendants: Owen Green, M.D., General Surgeon; Michael Smith, M.D., Vascular Surgeon; James Lee, M.D., Vascular Surgeon; Paul Stuart, M.D., Interventional Radiologist and Pulmonologist.

Injuries: Laceration of the left iliac vein, laceration of the mesentery and small bowel perforation, posterior laceration of the bifurcation of the abdominal aorta and, an anterior wall laceration, residual injuries including pulmonary embolism, respiratory arrest, massive abdominal bleed, cardiac arrests, and abdominal compartment syndrome.

Past Medical Bills: $651,150.12 (Approx.)

Future Medical Care: Monitoring of Deep Vein Thrombosis and potential surgery.

Wage Loss: $14,636.80, plus sick leave and annual leave earnings for the same of earnings: time frame.

General Damages: $750,000.00
STATEMENT OF FACTS
On June 16,2006, Plaintiff went to the Universal Surgery Center to have his gallbladder removed, also known as a “cholecystectomy.” This was supposed to be a routine procedure performed by general surgeon Owen Green, M.D.

Continue Reading ›

| by

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 birth injury/medical malpractice case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Similarly, California Business & Professions Code § 2396 provides:

No licensee, who in good faith upon the request of another person so licensed, renders emergency medical care to a person for medical complication arising from prior care by another person so licensed, shall be liable for any civil damages as a result of any acts or omissions by such licensed person in rendering such emergency medical care.

In Perkins v. Howard, 232 Cal.App.3d 708 (1991), the Court stated that the plain intent of the Good Samaritan Law is to encourage physicians to respond to requests for aid in medical emergencies, and thereby provide medical care to those who might not otherwise receive it. In Bryant v. Bakshandeh, 226 Cal.App.3d1241 (1991), the Court defined emergency as the existence of an exigency of so pressing a character that some kind of action must be taken.

In McKenna v. Cedars of Lebanon Hospital, 93 Cal.App.3d 282 (1979), the decedent’s family filed an action against defendant doctor, who had provided emergency medical care to the decedent. The decedent was not a patient of defendant doctor, nor was defendant doctor otherwise involved with the decedent’s medical care. The Court held that California’s Good Samaritan Law (then § 2144, now §§ 2395 and 2396) applied to medical emergencies in hospitals the same way it did to medical emergencies elsewhere. In so holding, the Court stated that a licensed physician, who in good faith rendered emergency medical care at the scene of an emergency, was not liable for any civil damages that resulted from any acts or omissions in rendering such care. McKenna, supra, at 288.

Continue Reading ›