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.”
Despite his own stated standard of care (“I am always aware of the possibility of infection) and despite William Smith’s increasing pain, Dr. X. never tested for infection. Dr. X. testified on page 121, lines 14 through 20:
“Q. And on March 21, 2002, were you still not considering as a possibility that there was infection present in the wound?
A. There was no sign of infection in terms of any other change that I would associate with infection.
Q. And so the answer to my question would be?
A. Yes.” (See Part 13 of 23.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.