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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.)

The dialysis concluded at 5:42. Mr. Reed initially got a BP of 90/21, but checked it again and it was 90/37. A total of 1.9 liters of fluid had been removed during dialysis. While plaintiff’s dialysis was completed at 5:42, she was not transported back to her room on the fifth floor until after 7:00 p.m. During the wait, however, she remained on a monitored bed in the dialysis unit with the blood pressure and heart rate monitors attached. Both of these monitors have alarms that will go off if the values drop below acceptable limits. The undisputed evidence is that the monitor alarms did not go off while plaintiff was awaiting transport.

According to the nursing notes, plaintiff returned to her room at 7:20. Her nurse was Jean King, also an ACES replacement nurse. Upon arrival her BP was 121/44, and her HR was 105. She also had a respiratory rate of 28. The nurse assigned to plaintiff was just coming on shift. She was concerned about plaintiff’s appearance, and asked the charge nurse to evaluate her. Supplemental oxygen was given, and over the next 30 minutes her vitals signs were monitored.

Her condition started to worsen, and then she suddenly experienced a respiratory arrest. A code blue was called, and by the time the responding physician arrived she had no pulse or spontaneous respirations. She was receiving CPR, and being ventilated by the nurses. As he assessed her, however, she suddenly had a spontaneous return of her heart rate. His evaluation of her airway revealed the presence of gastric contents, suggesting an aspiration.

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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.)

PLAINTIFFS’ TRIAL BRIEF
INTRODUCTION

On August 20, 2005, Tammy Martinez was driving her mother, Maggie Smith, and her two nieces, 19-month-old Alexa Martinez, and 5-year-old Amanda April, northbound on Mission Boulevard (Mission) in Sacramento. The weather was clear and sunny at the time of the accident. As Martinez approached the intersection of Mission and Hollis, she intended to turn left to go westbound. Mission is a two-lane, north/south street in a business district. Hollis is a residential street with one lane in either direction. The intersection is controlled by standard 3-phase lights. There are no left-turn pockets, or left-turn arrows. On this day, numerous pedestrians were walking in this business district, and vehicle traffic was moderate. The posted speed limit at the intersection is 35 mph.

Defendant Ralph Black was 18 years of age and was employed by Automotive Group as a used car salesman. He was in the process of selling a used Ford F-150 pickup truck to a customer. Black’s manager instructed him to take the pick-up and get it filled with gasoline while the sales contract was being drafted.

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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 brain injury/medical malpractice case and its proceedings.)

It is worth noting that medical malpractice 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.

SUMMARY JUDGMENT MUST BE GRANTED AS A MATTER OF LAW WHEN NO TRIABLE ISSUE AS TO ANY MATERIAL FACTS EXIST

It is well-established that a motion for summary judgment shall be granted when the moving party demonstrates that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code of Civil Procedure Section 437c(c). In making this determination, the court may rely on affidavits, declarations … and matters of which judicial notice shall or may be taken. Code of Civil Procedure Section 437c(b).

The summary judgment statute was revised as of January 1, 1993, and now specifies that a party bringing a motion for summary judgment need only establish a defense or only negate a necessary element of the challenged cause of action to justify entry of summary judgment. Code of Civil Procedure Section 437c(n); cf. Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1050. Under this new standard, once the moving party has met its burden of negating one necessary element of a claim, the opposing party must then show that a triable issue of material fact exists as to the questioned cause of action, or summary judgment shall be granted. Code of Civil Procedure Section 437c(n)(2).

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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.)

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

At 2255, paramedics arrived at the residence of Sean Ryan in Stockton, California after a 911 call had been placed at 2251. Once on the scene, the paramedics found a 61 year-old male weighing approximately 400 pounds in full arrest. Ryan had no pulse and apneic with fixed and dilated pupils. He was cool to the touch in a warm house. Paramedics were advised by a man on the scene that Mr. Ryan had been down for less than 15 minutes. CPR was initiated and Mr. Ryan had no pulse electrical activity with an initial cardiac rhythm of 20 beats per minute, followed by asystole. The patient was hyperventilated prior to intubation.

Epinephrine and normal saline were given down the endotrachcal tube. The patient remained in asystole. IV access was attempted twice with no access gained. Mr. Ryan was transported to The Medical Center with ALS C-3 with one fire on board. He was turned over to the Emergency Department physician and nursing staff at 2321, approximately 26 minutes after the paramedics arrived on the scene, and approximately 41 minutes after Mr. Ryan was first determined to be down.

At 2322, after being presented to the Emergency Department, Mr. Ryan’s pupils were fixed and dilated and he had no pulse electrical activity. CPR was administered. At 2329, medications were administered via IV. Mr. Ryan remained in asystole throughout the hold count.

At 2330, Mr. Ryan continued to be asystolic with medications and CPR being administered. He remained asystolic throughout the next 13 minutes with additional doses of medication, hold counts, and CPR administered. At 2345, Dr. Greene called the end of the Code, at which time the patient was pronounced deceased.

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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.)

SUMMARY OF FACTS

The undisputed facts follow. Patty Smith was a 36-year-old female who was three months pregnant when she came to the emergency department within Universal Hospital. This was not Mrs. Smith’s first pregnancy, she had two children previously. Mrs. Smith underwent genetic counseling and testing, including AFP and amniocentesis, for advanced maternal age and Down Syndrome pregnancy a year or so before this pregnancy.

At the emergency department on May 5, 2005, Mrs. Smith complained of bleeding, cramping and the passage of a large blood clot. An ultrasound was performed and disclosed an almost 14-week pregnancy – a normal pregnancy. Mrs. Smith was so informed.

The emergency department physician, defendant Steven Brown, M.D. – not an employee of Universal Hospital Medical Center – then incorrectly informed Mrs. Smith that the ultrasound was negative for pregnancy, apparently telling her that there was a complete abortion. Mrs. Smith was discharged home with instructions to see her private physician within 24 hours for a re-evaluation.

Mrs. Smith went to Sacramento Medical Center the same morning of her discharge from the hospital. She saw defendant Ava Green, P.A. Mrs. Smith told Ms. Green that she was seen at Universal Hospital, had an ultrasound and was told that she had a complete abortion. Ms. Green advised pelvic rest for Mrs. Smith and asked Mrs. Smith to return in 10 days for family planning. When Mrs. Smith returned on May 16, 2005, Ms. Green performed a physical examination. She did not detect the ongoing pregnancy, which was obvious. Ms. Green did not order an ultrasound.

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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.)

Evening of October 10, 2006

October 10, 2006 was the first day of a strike at the two MC hospitals. As required under the Labor Code, MC was given 10 days notice of the strike. In anticipation of the strike a contract was entered into with Arizona Clinical Employment Staffing, a company that supplies traveling nurses. ACES is owned and operated by nurses, and over the next 10 days ACES and MC worked closely to come up with a list of suitable replacement workers. Over 500 replacement workers were hired to cover Medical Center in Sacramento.

One of the nurse hired through ACES was Jim Reed. The evidence at trial will show that Mr. Reed is an experienced ICU and dialysis nurse who works regularly at a large teaching hospital. On October 10, he was one of two replacement nurses assigned to the dialysis unit. Plaintiff was scheduled for dialysis that day, and Reed was the nurse who cared for her in the dialysis unit.

According to the records plaintiff started dialysis at 2:47 p.m.. The initial set of vital signs were BP 107/58 and HR 89. The protocol in the unit was to document vitals every 30 minutes. The next set, at 3:17, was BP 84/38 and HR 91. According to the chart, Mr. Reed immediately turned off the ultra-filtration function of the dialysis machine. Ultra-filtration refers to the process of removing fluid during dialysis. It is very common for patient’s to drop their blood pressure during dialysis, especially if the orders are to reduce fluid. When fluid is removed from the circulation there is necessarily a drop in the blood volume, and a corresponding drop in blood pressure.

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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.)

Procedural Background

Mr. Ryan died on June 1, 2008. Plaintiffs filed a complaint on September 23, 2008. Plaintiffs named as defendants Gary Greene, M.D.; Physicians Medical Corporation, Inc. (Dr. Greene’s employer); The Medical Center; and James Black (Chief Operating Officer of The Medical Center). Plaintiffs’ Complaint for Damages set forth causes of action for: (1) wrongful death; (2) negligent hiring; (3) negligent supervision; (4) civil conspiracy; (5) intentional infliction of emotional distress; (6) elder abuse; and (7) negligent infliction of emotional distress.

On November 3, 2008, the TMC defendants filed a demurrer to all six causes of action for failure to state facts sufficient to constitute a claim for any of the above-enumerated causes of action. Presumably due to the numerous deficiencies, plaintiffs did not file an opposition to defendants’ demurrer, but they filed an Amended Complaint for Damages on December 3, 2008.

Plaintiffs’ Amended Complaint for Damages frames the issues for this motion for summary adjudication. It sets forth five causes of action. By way of demurrer, the TMC defendants have challenged the fourth and fifth causes of action for negligent infliction of emotional distress and elder abuse, respectively. The demurrer is set for hearing on March 8, 2009.

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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 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.

STATEMENT OF FACTS

On May 25, 1999, plaintiff Tina Brown presented to co-defendant XYZ Hospital for the anticipated delivery of her child. Prior to and during, her delivery, Tina Brown was treated and cared for by co-defendant James Lee, M.D. Tina Brown was not Dr. White’s patient, nor had he ever treated her before.

Approximately twenty minutes after the Cesarean-section delivery of minor plaintiff Amy Brown, Dr. White, a neonatologist, was called and told to emergently examine Amy Brown. Amy Brown was not Dr. White’s patient, nor had he ever treated her before. When Dr. White first examined Amy Brown, she was cyanotic, and her chest was not rising well during respiration. At that time, Dr. White determined that her endotracheal tube might be obstructed. As such, Dr. White re-intubated Amy Brown with a new and larger endotracheal tube.

Subsequently, upon determining that Amy Brown’s condition was not improving adequately, Dr. White determined by a matter of elimination that in all probability her ventilator was malfunctioning. Consequently, Dr. White replaced the ventilator with another ventilator.

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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 workplace harassment/personal injury case and its proceedings.)

Defendants’ Harassment and Discriminatory Conduct Toward Plaintiff was Severe and Pervasive

When taken as a whole and analyzed in context, Defendant’s blatant racist and anti-homosexual comments combined with his inappropriate questioning and innuendo regarding Plaintiff’s sexuality clearly show that Defendant Green had a problem with Plaintiff based on race, religion and perceived sexual preference. Defendant Green acted on his perceptions against Plaintiff by consistently intimidating and harassing him through micro management of his department, derogatory remarks about Plaintiff to other staff, intimidation of students on Plaintiff’s team, attempting to create violations of policy and then discipline Plaintiff for such violations, over penalizing Plaintiff with unreasonably harsh punishments, initiating an unwarranted NCAA investigation of Plaintiff, and waging an overall campaign to get Plaintiff fired.

When the workplace is permeated with discriminatory intimidation, ridicule and insult that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” the law is violated. Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21. Defendants’ actions continued nonstop from August 2005 through July 2007.

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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 car accident/personal injury case and its proceedings.)

On July 6, 2006, plaintiff presented to Lee M. Messi, M.D. for a neurosurgical consultation. Dr. Messi wrote a report. In the report, it is noted that plaintiff stated he was involved in an accident and that he had a sore body, but his neck was the main symptom of pain. Dr. Messi reviewed plaintiff’s MRI of his cervical spine and stated that the MRI shows “evidence for significant disc abnormalities at both C4-5 and C5-6.” At the C5-6 there is a disc osteophyte complex and narrowing of the AP diameter of the spinal canal to 8mm. In addition, there is some right side neuroforaminal narrowing and possible impingement of the right C6 nerve root. At the C4-5 there is a central disc protrusion narrowing the spinal canal approximately in 9mm. In general the space diameter of the canal appears to be quite compromised with an average diameter of 9mm even in the areas where there is no disc abnormalities.

Dr. Messi recommended cervical epidural blocks and if this approach did not work, plaintiff may be considered as a candidate for a two level anterior cervical diskectomy and fusion at C4-5 and C5-6.

SPECIAL DAMAGES

Plaintiff seeks medical expenses, wage loss, and general damages.

1. Past Medical Expenses:

Provider Dates Amount Charged Amount Reduced Hanif Number
Kate Brown, D.C. Feb 8, 2006 $514.13 $0.00 $514.13
MRI Feb 21, 2006 $1,695 $0.00 $1,695
Lee Messi, M.D. July 6, 2006 $750.00 $0.00 $750.00
TOTAL $2,959.13 $0.00 $2,959.13

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