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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, 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 case and its proceedings.)

THE CARE AND TREATMENT RENDERED BY MOVING DEFENDANT DID NOT PROXIMATELY CAUSE OR CONTRIBUTE TO ANY DAMAGES ALLEGED BY PLAINTIFF

Dr. Lee has also concluded that none of Stefan Black, M.D.’s actions or omissions during his involvement in the care and treatment rendered to Plaintiff in any way caused or contributed to any injuries or damages claimed by Plaintiff. Consequently, there is no basis for liability against Stefan Black, M.D.

In order to prevail on a cause of action for medical malpractice. Plaintiffs must establish

(1) The duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise, (2) a breach of duty, (3) a proximate casual connection between the negligent conduct and the resulting injury, and (4) actual loss or damage resulting from the professional’s negligence. Hanson v. Grode, (1999) 76 Cal.App.4th 601, 606.

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

In Mitchell v. Gonzales (1991) 54 Cal.3d 1041, the Court stated that legal causation should be based upon whether defendant’s conduct was a “substantial factor” in bunging about the plaintiff’s injuries Mitchell. 54 Cal.3d at 1052 – 1053.

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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 and personal injury case and its proceedings.)

White ‘s Lien Amount Must be Reduced by $10,682.58, Which Will Directly and Exclusively Benefit Mr. Black, Not his Counsel.

Mr. Black is legally obligated, based on his “Retainer Agreement (Contingent Fee)” with the XYZ firm to pay that firm 40% of his recovery. In addition, that agreement requires him to pay costs for the prosecution of this action. Those amounts will be deducted from the $100,000 settlement amount.

But White then proposes deducting its full workers’ compensation lien of $23,717.22, from what Mr. Black has left from his $100,000 recovery, despite that White did nothing that effectuated that recovery amount. If White is permitted this unreasonable deduction, that will mean money coming from Mr. Black’s pocket. In other words, Mr. Black will walk away with considerably less — only about $31,000. This is completely inequitable, which is why California law requires an allocation to be made.

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

Plaintiff proposes that White’s lien be reduced by a total of $10,682.58. Plaintiff has calculated the reduction by (1) deducting 40% of the lien amount as White ‘s equitable share of attorney’s fees ($9,486.88); (The 40% calculation is based on the percentage of attorney’s fees owed by Mr. Black under his retainer agreement with his counsel.), and (2) deducting 24% of the costs amount as White’s equitable share of costs ($1,195.70). (The 24% calculation is based on the fact that the workers’ compensation lien amount of $23,717.22 is 24% of the total settlement amount of $100,000.) The sum of $9,486.88 and $1,195.70 equals $10,682.58.

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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 and personal injury case and its proceedings.)

In ruling on defendants’ initial demurrer to the original complaint as to the NIED claim, the Court sustained the demurrer with leave to amend to allege more specifically the conduct the plaintiff contemporaneously observed and the specific resulting injuries that cause plaintiff’s emotional distress. The plaintiff has cured this defect in her First Amended Complaint:

53. When Debra White was advised of the plan be defendant to discharge Harry White from Herrick Rehabilitation to their home, Debra White expressed concerns to nursing staff at Herrick that Harry White, because of his bowel impaction, multiple uncontrolled watery stool, severe wound and general weakness, was not in a condition to go home. Her concerns were responded to by advice that Mrs.White should obtain training and take care of Harry White at home.

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

Mrs.White believed that the decision to discharge her husband was wrong and not in his best interest, but acceded to the recommendation of Harry White’s physicians and nurses because she felt she had no choice. Thus, she did experience and appreciate the wrongfulness of defendants’ conduct and contemporaneously witnessed the injury and damage to her husband at their home and thereafter as a direct result of defendants tortuous conduct.

Mrs. White also properly alleges a bystander cause of action for NIED against National VNA. The Complaint alleges that she witnessed the conduct of defendant in that its nurses came to her home, saw the condition of Mrs. White and her husband, and breached its duty to provide proper care to Mr. White by failing to take immediate steps to have him rehospitalized.

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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, 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 case and its proceedings.)

Issues before the Court for Trial
Informed Consent

Dr. Black had a duty to inform his patient of the risks associated with the procedure to be performed. He breached that duty by failing to properly provide that information. Instead, he relied upon a consent form which, in fact, did not detail any of the risks other than to simply state that risks do exist.

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

Dr. Black suffers from a nervous condition that causes his hands to tremble when he is stressed. He failed to disclose his condition to Ms. Hill. During the endoscopy he perforated approximately 60% of the circumference of the colon. He claims the colon was perforated 3-4 days earlier from some unknown cause. This most likely occurred from his handling of the colonoscope itself, perhaps mishandled by trembling hands.

For failure to disclose risk of perforation and failure to disclose his nervous disorder, the consent provided by Ms. Hill was not informed consent. As such, Dr. Black lacked consent for the procedure that would eventually send Ms. Hill into excruciating pain and land her in the Intensive Care Unit at Universal Hospital. Performing a medical procedure in the absence of informed consent is a battery.

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

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and medical malpractice case and its proceedings.)

The First and Second Causes of Action, are Uncertain, as they Fail to Allege Any Specific Wrogndoing by Defendant Dr. Wong.

Under California Code of Civil Procedure, section 430.10(f), a party may demurrer to a pleading on the ground of uncertainty. A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. The Rutter Group, California Practice Guide: Civil Procedure Before Trial, Chapter 7 (I)-A, 7:85.

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

Plaintiffs fail to allege any inappropriate, nevertheless reckless, conduct on behalf of Defendant Dr. Edward Wong. Plaintiffs make many general allegations and contentions attributable to all defendants as a whole, including health centers, nurses, doctors and hospital staff; however, Plaintiffs fail to distinguish between the alleged roles the individual defendants played in the alleged reckless neglect of decedent. There is not a single allegation specifically directed toward any act or omission by Dr. Wong in the entire 13 page complaint. In fact, a significant portion of the first cause of action, wherein he is specifically named, is directed toward alleged violations of Division 5, Title 22 of the California Code of Regulations, entitled: Licensing and Certification of Health Facilities, Home Health Agencies, Clinics and Referral Agencies.

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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, 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 case and its proceedings.)

Facts

On March 23, 2007, defendant Stefan Black, M.D., performed a colonoscopy on Ms. Hill, who was then 76 years old. He advised her that the procedure carries a risk of bleeding, but Dr. Black admits that be failed to warn her that perforation of the colon is a risk of the procedure.Ms. Hill did in fact suffer a perforation, with complications causing subcutaneous emphysema and requiring a colostomy. There were three hospital stays and two surgeries as a result. There is a factual dispute as to whether Dr. Black caused the perforation on the colon perforated ,sua sponte, three to four days earlier.

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

However, there is no dispute that Dr. Black knew of the risk that this injury could occur and that he failed to provide warning of such risk when obtaining consent for the procedure.

Dr. Black filed two separate reports detailing Ms. Hill’s colonoscopy that day. These reports directly conflict one another. It appears that the incorrect report was the one provided to the surgeon who eventually operated on Ms. Hill later that day.

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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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

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

PLAINTIFF CANNOT CAUSALLY RELATE DEFENDANT’S CONDUCT TO ANY
PURPORTED DAMAGES OR INJURIES

A medical malpractice plaintiff must show that defendant caused his/her injury. Causation provides the essential link between the negligent act and the damage suffered by the party seeking recovery. The Court of Appeal has held that “a plaintiff, in order to establish liability, must prove more than abstract negligence unconnected to the injury.” Noble v. Los Angeles Dodgers (1955) 168 Cal.App.3d 912, 916. It is plaintiff’s burden to plead and prove the element of causation to support his claim for damages. In Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, the Court observed:

“The law is well settled in a personal injury action, causation must be proved within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is not sufficient to establish a prima facie case.” (Citations omitted.) That there is a distinction between a reasonable “probability” and a “possibility” needs little discussion. There can be many possible “causes,” indeed, an indefinite number of circumstances which can produce injury or disease.

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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, 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 case and its proceedings.)

At issue in the present case is the propriety of care and treatment rendered by Stefan Black, M.D. The particular care of hospital personnel and particularly, physicians, is beyond the common knowledge of the layman and therefore. requires expert testimony. As the Court noted in Salasguevara v. Wyeth Laboratories, Inc., (1990) 222 Cal.App 3d 379.385. Medical causation can only be determined by expert medical testimony.

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

Dr. Lee is board-certified in gastroenterology. Based upon his education, training and experience, and review of all relevant information, it is Dr. Lee professional opinion that Stefan Black, M.D.’s care and treatment of Plaintiff, Donna Hill, complied with the applicable standard of care incumbent upon a gastroenterologist. Based upon Dr. Lee’s training and experience in gastroenterology, he has knowledge of the pertinent standard of care among physicians practicing in the northern California medical community at all times relevant to this matter. Dr. Lee’s expert declaration establishes Stefan Black, M.D.’s complete defense to Plaintiff’s claims of medical 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 car accident and personal injury case and its proceedings.)

It was plaintiff’s counsel — the XYZ firm, and particularly Ms. Brown — whose sole efforts led to the successful settlement of this action for defendants’ automobile policy limits.

It was the XYZ firm that did all of the discovery in the case; it was the XYZ firm that collected and subpoenaed all the medical records and other records dealing with liability and damages issues. It was the XYZ firm that interviewed witnesses; and it was the XYZ firm who took depositions of key witnesses and defended the depositions taken by defendants’ counsel. It was the XYZ firm that calculated Mr. Black’s past and future lost wages as well as medical expenses, further ensuring that all of his medical expenses were accounted for in the damages calculations.

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

It was the XYZ firm that arranged the mediation, and filed a mediation brief that laid out all the factual detail supporting Mr. Black’s claims regarding defendants’ liability for the collision and for Mr. Black’s damages. It was the XYZ firm that rehabilitated the testimony of Dr. Lee regarding the need for future surgery for Mr. Black, based on medical evidence that firm had collected and which Ms. Brown presented to Dr. Lee during his deposition. It was the XYZ firm that made the section 998 demand before White ever even intervened in the case, and it was that demand that the defendants, following and as a result of all the work the XYZ firm had done, accepted.

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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 and personal injury case and its proceedings.)

The Fifth Cause of Action Properly Alleges A Cause of Action For Negligent Infliction Of Emotional Distress

Debra White, as an alternative claim to the intentional infliction of emotional distress cause of action, asserts a claim for negligent infliction of emotional distress.

One of the bases for a “direct victim” claim for NIED is the negligent breach of a duty arising out of a pre-existing relationship. Burgess v. Superior Court (1992) 2 Cal. 4th 1064 is the controlling authority on that cause of action. In that case, a mother was permitted to bring an action for NIED when her fetus was allegedly injured by negligence during delivery. The Court reasoned that there was a preexisting relationship between the mother and the defendant physician such that a duty of ordinary care flowed from the physician to the mother.

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

The facts alleged in the Fifth Cause of Action allege an analogous cause of pre-existing relationship. It is clearly asserted that defendants undertook to encourage Mrs.White to agree to discharge her husband based upon representations, which were without basis, that he could be cared for at home as long as she was trained. The defendants then undertook to “train” Mrs. White for this task.

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