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.)
The Court of Appeal addressed the holdings of Cobbs and Truman, discussing the duty found in those cases to disclose information about recommended procedures [See 7 Cal.App.4th at pt 1069], The Court went on to say:
In Scalere v. Stenson (1989) 211 Cal.App.3d 1446 [260 Cal.Rptr. 152], the plaintiff made the same argument that plaintiff here makes, namely, that a physician has a duty of disclosure concerning procedures which he or she is not recommending. There, the defendant physician, a cardiologist, performed an angiogram on the plaintiff’s right arm. After surgery, plaintiff reported pain and discomfort in her arm. The physician examined and tested her arm and concluded that it was progressing satisfactorily. Consequently, he neither told her about nor recommended any further diagnostic tests or therapy. About a year later the plaintiff underwent a saphenous vein bypass of her right brachial artery with resultant damage. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
In the ensuing malpractice action, the jury found that the physician was not negligent On appeal, plaintiff contended that the trial court erred in not instructing on duty to disclose. The Court of Appeal rejected the argument, concluding that the duty of disclosure is predicated upon a recommended treatment or diagnostic procedure and that the failure to recommend a procedure must be addressed under ordinary medical negligence standards.
We are satisfied that the Scalere opinion is correct [Opinion at pages 1069-1070].
As addressed in Defendant’s initial opposition to these motions, since Dr. Lee saw no reason to refer Mr. Greene to a neurosurgeon, and since he interpreted the CT report and Emergency Physician’s report as reassuring, he had no legal duty to discuss with Mr. Greene a possible neck surgery or referral to a surgeon.
In their moving papers, plaintiffs add the issue of physical therapy, but, as noted above, Dr. Lee did not recommend or intend any physical therapy to the neck, and no witness claimed that physical therapy to other parts of the body would present any risks to the neck. In any event, as stated by the Court in Vandi, such a theory would have to be addressed under ordinary medical negligence standards, as it was in this case, with the resulting defense verdict
The testimony by Dr. Lee and expert witness Dr. Smith clearly established that Dr. Lee complied with the applicable standard of care, and the jury obviously accepted their testimony.
(See Part 8 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.