Personal Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

From the outset, Dr. X. knew that Dr. W’s radiation treatment might result in an infected wound. Dr. X. testified on page 43, lines 11 through 19:

“Q. But my question to you, sir, you knew when you sent him down to see Dr. W. that what Dr. W. was going to do carried with it a risk of infection of that area?
A. Correct, but no greater risk than any other treatment of skin cancer.
Q. Whether or not it’s greater or lesser, you knew there was a risk of infection?
A. That’s correct.”

In fact, Dr. X. testified that with 90 percent of his patients he has to consider infection:

Page 45, lines 11 through 16:

“A. On almost 90 percent of what we see there’s always a potential for a pathway for infection to start.
Q. So 90 percent of the things you see you’ve got to be considering infection?
A. We’re always aware of the possibility. I’m always aware of the possibility of infection.”

In his testimony, Dr. X. sets forth his personal standard of care: “I’m always aware of the possibility of infection.” He failed to follow his own standard of care when treating William Smith’s open back wound.

Incredibly, Dr. X. does not feel he should be criticized for failing to consider that this chronic and increasingly painful wound might be infected. This is a true even though he conceded plaintiff’s worsening pain would be a sign of infection.

Page 96, lines 7 through 17:

“Q. Infection had not been ruled out, true?
A. Infection had not been ruled out, but one would expect if infection were an element in here that there would be over time, that things would get worse.
Q. Okay. Would the pain get worse?
A. It’s conceivable pain would get worse. It would be one potential change with infection.
Q. Pain getting worse, it would be saying to you well, maybe the cause is infection, right?
A. Infection would be one of the things that I would consider.”

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

B. Joint Offer from All Plaintiffs

On September 15, 2007, all three plaintiffs in this action joined in renewing a policy limit offer to settle the entire case. A copy of that offer states the following:

“As you know, your clients have been sued for compensation and punitive damages following a drunken driving crash caused by Mr. Brown. His parents were sued for negligent entrustment. The plaintiffs have suffered serious injuries including brain damage and fractures requiring hospitalization. Please see plaintiffs’ Mediation Briefs for a further description of their injuries and economic damages.

All three plaintiffs in this case, by and through their respective attorneys, previously offered to jointly accept payment of the Defendants’ full policy limits of coverage (two policies totaling $1,500,000.00) in settlement of this case.

Please allow this letter to again alert you, Allstate Insurance, and the defendants’ insurance adjustors that plaintiffs’ combined global settlement offer is again offered by all three plaintiffs, by and through their respective counsel, and is available to provide all three of your clients with a complete and full release of all claims against them. In addition, the plaintiffs will extinguish all liens.

Stated another way, if Allstate Insurance Company agrees to pay to the injured plaintiffs the limits of the insurance coverage previously purchased by the Brown family from Allstate, then the Brown family (Chris, Mary and Paul) will be forever finished with the litigation and will be fully released from any further claim for compensatory and/or punitive damages. The case will be over.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

2. FAILURE TO REFER TO A SPECIALIST:

After having tried to close the open wound for six months, or perhaps even a year, the standard of care would require Dr. X. to send Mr. Smith to a wound specialist or a plastic surgeon. As the months and years went by, Dr. X. failed to refer Mr. Smith to an appropriate wound specialist or plastic surgeon.

It was critical to plainitff’s health that the open wound be closed by plastic surgery if necessary. This is because the skin acts as a barrier to infection. When the skin is broken, bacteria can enter. Dr. X. testified on page 44, lines 8 through 11:

“Q. So when the skin is broken, there’s always a risk of infection?
A. There’s a risk of infection when the skin is broken.”
3. STEROID INJECTION: “THE WRONG THING TO DO”

In the hospital Mr. Smith was confirmed with an MRSA infection in his wound. Dr. X. had injected this infected wound with Kenalog, a powerful steroid, on March 11 and March 19, 2002. Dr. X. testified on page 71, lines 14 through page 72 line 25:

“Q. Right. And would you agree that injecting an infected wound with a steroid such as Kenalog would be the wrong thing to do?

A. I would agree that injecting an infected wound with Kenalog would be the wrong thing to do.

Q. Why would it be the wrong thing to do?
A. Kenalog can interfere with the healing process and with the immune process.
Q. And tell me what you mean by that.
A. It can – – Kenalog can slow down the growth of fibroblasts which make new tissue and can slow down the growth of and thin the epidermis, the skin, and it can also slow down the – – reduce the effectiveness of the body’s inflammatory cells.
Q. So injecting an infected wound with Kenalog makes it harder for the body to fight the infection?
A. It could.

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MS, ADAMS

Ms. Adams is not a plaintiff. She is married and currently working in the Sacramento location of ABC Automobiles. Her deposition was taken and videotaped on April 1, 2008. Under current case law, her testimony will be admissible at trial. At her deposition Ms. Adams testified as follows:

1. She observed David Stevens’ offensive conduct on many occasions sexually harassing women at the office. She complained to both Mr. Armstrong and the corporate office. Nothing was done.

2. At a conference in San Jose, David Stevens asked her and another female employee of ABC Automobiles to have three-way sex with him. The women were offended and very uncomfortable with his comments. Ms. Adams reported this to the appropriate persons at ABC Automobiles. Again, nothing was done.

3. At a staff meeting on April 26, 2006, attended by Mr. Stevens, Ms. Webb led a discussion concerning inappropriate sexual behavior in the work place. Immediately after the meeting Mr. Stevens walked up to another female employee and pinched her buttocks. Ms. Adams complained to Bill armstrong but he did nothing.

4. Ms. White regularly complained to Amy Webb about Mr. Stevens’ inappropriate behavior. Ms. Black also complained to Bill Armstrong, in Ms. Webb’s presence.

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VIOLATION OF GOVT. CODE 12950.1

Under California Law, ABC Automobiles is subject to Government Code section 12950.1 (a) which requires the following :

“By January 1, 2006, an employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of their assumption of a supervisory position.”
ABC Automobiles violated this statute; it did not provide the two hours of sexual harassment training to Bill Armstrong, David Stevens, or anyone else at its Sacramento location until after May 2, 2006
EMPLOYEE OF THE YEAR

Incredibly, David Stevens was named Employee of the Year by ABC Automobiles despite all the company knew about him. He received the award in early 2006, approximately four months before he was finally terminated for years of sexual harassment. It is believed that one reason he got the award was because he and Bill Armstrong had set up the computers used by some of the females in their office so that the women had to use Mr. Stevens’ name to log on and do work. Thus, he got the credit for much of the work performed by those female employees.

One can only imagine how Ms. White and Ms. Black and the rest of the females in the Sacramento location felt when, despite all the sexual harassment, and despite all the complaints to Regional Director Bill Armstrong and the San Francisco corporate headquarters, ABC Automobiles named David Stevens Employee of the Year.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

X. LIABILITY OF ABC HOSPITAL

The nursing staff at ABC HOSPITAL failed to summon the appropriate care for William Smith as he descended into quadriplegia on their ward and under their care.

A. STANDARD OF CARE: CALL A DOCTOR

ABC Hospital’s nurses admit they are trained to call a doctor when they note a significant change in condition:

Nurse Paul White on page 41, line 24 through page 42, line 4:

“Q. What have you been trained – – have you ever had any training on what to do if a patient was ambulatory and then suddenly became paralyzed?
A Yes.
Q. What did your training tell you to do?
A. We have to notify the doctor.”

Nurse Black on page 17, lines 3 through 10:

“MR. COLLINS: Q. Sir, do you recognize the phrase “change of condition.”
A. Yes, I do. Of course, there’s a big change in condition and smaller changes in condition, but yes, I do.
Q. In fact, you’re trained to call the doctor if there’s a significant change in condition, right?
A. That I am, yes.”

Nurse Black admitted the change in condition of plaintiff on March 25, 2002, looked like the onset of paralysis:

Page 17, line 11 through page 18, line 12:

“Q. Okay. Now if you can compare the assessment done on the night to the assessment you did on the day at 0810, was there a change of condition?
A. That’s correct, there are.
Q. In fact, it was a significant change of condition.
[objection omitted]
THE WITNESS: I’m having trouble – – oh, okay. On the neuro, yes, it is. She writes that he moves extremities, which would mean that he moved all of his extremities.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

B. WAS A DOCTOR CALLED?

Nurse Brown (11 p.m. to 7 a.m. shift) claims she called Dr. Y. and told him the patient could not longer move his legs. She does not document that she gave Dr. Y. this critical information.

Nurse White states the nurses are trained to document that they notified the doctor of the change in condition:

Page 42, lines 6 through 16:

“A. We have to do a, you know, like a documentation of our observations.
Q. So in the medical records you’d document the fact that he could no longer move the legs?
A. Yeah.
Q. And you’d document that you notified the doctor?
A. On what case?
Q. You’ve been trained – –
A. Yeah, yeah, based on our training, yes, we’d do that.”

The written policy of ABC Hospital regarding contacting physicians states in part:

“ATTACHEMENT A
6. Be concise and organized in your presentation of appropriate information: state clearly why you are calling; what the problem is; get to the point.”

The policy goes on to state:

“IMPORTANT NOTES
1. All of the above should be carefully timed and documented.
2. Do not hesitate to get help from other sourced and higher authority such as: other physicians known to be within the facility; section, department and executive staff chiefs.”

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