Personal Injury Lawyer Blog

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

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

On February 5, 2009, plaintiff presented to Dr. Hall for a postoperative follow-up visit. Plaintiff complained of pain in her left knee but reported that it felt stronger. She was able to perform a SLR with little assistance. The knee was placed in an extension splint. X-rays taken on this date do not show any complications with the tibial and femoral components. Dr. Hall next saw plaintiff on February 18, 2009. Plaintiff complained of left knee pain and reported that she had begun physical therapy. Plaintiff’s quadriceps strength was good. The extensor splint was continued.

On March 4, 2009, plaintiff presented to Dr. Hall for a follow-up visit. Plaintiff complained of pain and stiffness, especially in the mornings. Plaintiffs quadriceps were bulking up and she could do a SLR and had 70 degrees of flexion. These were both good signs. An extensor splint was re-applied.

On March 15, 2009, plaintiff next presented to Dr. White, another orthopedist at National Medical Clinic, for a consultation. Dr. White noted a palpable gap in the medial retinaculum and lateral subluxation of the patella with an impression of medical retinacular dehiscence. Dr. White indicated she felt a gap in the tissue on the inside edge of the patella, consistent with the lateral tracking she could visualize.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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

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

Plaintiff presented to Dr. Hall on December 1, 2008 for a two-week follow-up visit. He noted plaintiff had problems with flexion and instability. Plaintiff could not perform a seated leg raise ( SLR ) and the medial side of her knee showed some “bogginess.” Dr. Hall stated that the wound felt boggy and soft on palpation. Dr. Hall decided to place plaintiff in a cylinder cast in extension because of her inability to perform a SLR.

On December 15, 2008, Dr. Hall saw plaintiff for another follow-up visit. Plaintiff did not have any significant complaints on this visit and stated she felt much better. Dr. Hall informed plaintiff he would give the knee more time to heal and would evaluate her knee in five days. He noted the cast seemed to be improving her quadriceps function and because plaintiff was able to perform the SLR he was no longer concerned about damage to the quadriceps muscle.

On January 8, 2009, Dr. Hall saw plaintiff for a follow-up visit. Plaintiff complained that sometimes it felt like her knee was going to buckle. Dr. Hall noted that plaintiffs clinical presentation showed some patellar subluxation. He indicated a lateral release with or without medial repair might be required. Dr. Hall ordered a long-leg cast with foot included due to plaintiffs positive response to the previous cast.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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

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

To recover for NIED as a bystander witness, a plaintiff must be present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim. (Thing v. LaChusa, supra, 48 Cal.3d at pp. 667-668.) In Bird v. Saenz, supra, 28 Cal.4th at pp. 920-921, the Supreme Court reiterated the Thing requirement that the plaintiff be present at the scene of the injury-producing event at the time it occurs, and contemporaneously be aware that it was causing injury to the victim. In Bird, the plaintiffs were in the waiting room while their mother was negligently operated on, with the result the Bird plaintiffs “had no sensory perception whatsoever of the [injury-producing event] at the time it occurred.” (28 Cal.4th at p. 917.) The Bird court observed that the contemporaneous awareness element requires a contemporaneous awareness that a close relative is being injured. (28 Cal.4th at p. 916.) The Supreme Court explained, “a rule permitting bystanders to sue for NIED on account of unperceived medical errors hidden in a course of treatment cannot be reconciled with Thing’s requirement that the plaintiff be aware of the connection between the injury-producing event and the injury.” (28 Cal.4th at p. 921.)

In this case, Gillian Smith is apparently attempting to recover damages for injuries to her family members, including her daughter. However, Universal had no connection with her family members or her daughter.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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

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

Defendants Jim Hall, M.D., and National Medical Clinic hereby submit their Trial Brief in this medical malpractice action filed by plaintiff Susan Dean.

STATEMENT OF FACTS

Dr. Hall is an orthopedic surgeon practicing at National Medical Clinic in Sacramento. On February 21, 2008, plaintiff Susan Dean underwent a right total knee replacement surgery performed by Dr. Hall at National Community Hospital. On February 25, 2008, Dr. Hall discharged plaintiff Susan Dean from National Community Hospital after she had been doing well and ambulating with physical therapy. There were no postoperative complications and the outcome was satisfactory as plaintiff was noted to have recovered very well from the right total knee replacement.

On November 5, 2008, plaintiff presented to Dr. Hall at National Medical Clinic for a preoperative visit concerning a left total knee replacement. Dr. Hall noted that the left knee possessed a valgus deformity and pain upon flexion. According to Dr. Hall, plaintiff was a candidate for the surgery due to arthritis in all three components of the knee and three years of left 13 knee pain. He discussed the risks, benefits and alternatives with plaintiff. On November 14, 2008, plaintiff underwent a left total knee replacement surgery by Dr. Hall again at National Community Hospital. A constant pressure motion (CPM) unit was put in place to apply passive pressure to promote movement of the knee. Additionally, plaintiff was to wear an immobilizer when walking to protect the repair of the quadriceps incision from injury.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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

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

b. The Allegations Do No Support a Claim for NIED Based on a Bystander Witness Theory.

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

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

In the instant matter, plaintiff cannot sustain this burden of proof. The actions of Dr. Black, were not the cause of plaintiff’s claimed injury and damages. The Declaration of Donald Smith, M.D. provides substantial expert evidence that Dr. Black’s actions were not causally connected to plaintiff’s alleged injuries. The second required element to sustain a cause of action for medical negligence cannot be proven. As a matter of law, the care and treatment rendered by Dr. Black, was not below the standard of care, nor was defendant’s care and treatment the cause of plaintiff’s claimed injury and damages, and summary judgment must be granted.

In A Medical Malpractice Action, The Party Presenting Uncontradicted Expert Testimony Must Prevail

Where a defendant’s expert testimony is uncontradicted, there is no triable issue of fact for the jury to consider, and the defendant must prevail as a matter of law. (Willard v. Hagenmeister, (1981) 121 Cal.App.3d 406, 412.) The court in Willard described the preemptive effect of expert testimony in a malpractice action:

“Expert evidence in a malpractice suit is conclusive as to the proof for the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony.” (Id.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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

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

Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, also has no application here. There, the family member, the husband of the patient, sued based on the emotional distress he suffered when his wife, following the dictate of the health care provider, informed him that she had a sexually transmitted disease. The transmission of this information caused a substantial disruption of the marriage and substantial emotional distress on the part of the husband. As it turned out, the wife did not have a sexually transmitted disease. In Molien, the doctor breached a duty because the doctor directed his patient, the wife, to advise the husband of the diagnosis. Here ,Gillian Smith, the patient, not the family member, is suing to recover damages she Kelly allegedly suffered because she exposed her family to an allegedly contagious disease. As alleged, no defendant directed Gillian Smith to advise a family member regarding any diagnosis. Molien does not apply.

Directly on point is Huggins v. Longs Drug Stores (1993) 6 Cal.4th 124. In that case, parents tried to sue under a direct victim theory to recover NIED because they had unwittingly given their two-month-old son an overdose of medication, causing their son substantial injuries. The parents took a prescription for their son to a Longs Drug Stores pharmacy to be filled. The pharmacy wrote directions for five times the dosage ordered by the doctor.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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