Personal Injury Lawyer Blog
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.
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 wrongful death case and its proceedings.)
PLAINTIFFS HAVE COMPLETELY FAILED TO SHOW ANY LEGAL DUTY BY DR. LEE TO DISCUSS POSSIBLE SURGERY. REFERRAL TO A NEUROSURGEON. OR PHYSICAL THERAPY ON THE NECK SINCE HE DID NOT RECOMMEND ANY OF THOSE INTERVENTIONS
Citing Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 and Truman v. Thomas (1980) 27 Cal.3d 285 165 Cal.Rptr. 308, 611 P.2d 902, Plaintiffs contend that Dr. Lee had a “legal duty” to disclose risks associated with not treating his dens fracture or with performing physical therapy. In so doing, they ignore the fact that both Cobbs and Truman repeatedly refer to “recommended therapy” in connection with a duty to disclose. In the instant case, Plaintiffs claim that Dr. Lee had a legal duty to discuss the risks of treatments he DID NOT recommend. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
A nearly identical claim was rejected in Vandi v. Permanente Medical Group, Inc. (1992), 7 Cal.App.4th 1064; 9 Cal.Rptr.2d 463. There, the Court of Appeal began their decision by stating [opinion at pg. 1066]:
“In this medical malpractice action we consider and reject the claim that the physician had a duty to inform his patient of a diagnostic test which, in the physician’s professional judgment, was not medically indicated.”
In Vandi, plaintiff, who had suffered a seizure, claimed that defendant physicians had failed to advise him of the availability of a CT scan, the possibility that it could detect a large brain abscess, and the risks involved in waiting for the scan (an MRI) that was eventually performed two days later. (See Part 7 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.