Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)
DR. BLACK’S MANAGEMENT OF DECEDENT’S EMERGENCY ROOM VISIT FAILED TO MEET THE STANDARD OF CARE
The moving party has the burden of establishing evidentiary facts sufficient to entitle him or her to judgment as a matter of law. CCP § 437c(c); Vesely v. Sager (1971) 5 Cal.3d 153. The opposing party has the burden to controvert issues, only when the moving party has met its burden. CCP 437c(o)(2). As set forth above, Dr. Black has not met this burden. Further, the expert opinion that Dr. Black met the standard of care avoids key facts that are undisputed. Finally, the issue of compliance with the standard of care is controverted by competent contrary opinion.
Dr. Black moves for summary judgment on the opinion of his retained expert that his care and treatment was “at all times appropriate and within the standard of care.” (Decl. of Dr. Howard.) To reach this result, Dr. Howard selectively spins the evidence. Radiologist Cesar Lee, advised Dr. Black that 1) he suspected a chronic fracture of the dens (C-2), incomplete closure of the C-1, and 3) that he could not see any acute fracture. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Dr. Howard interpreted this as no more than “chronic degenerative changes without evidence of any acute injury or need for emergent intervention.” (Decl. of Dr. Howard.) He does not address the fact that Dr. Black was advised that Mr. Greene had a fractured cervical vertebrae, chronic or otherwise, nor does Dr. Howard explain what the standard of care requires for this presentation.
On April 13, 2006, Mr. Greene had a cervical spine CT scan interpreted by Dr. Clive Miller as chronic appearing odontoid fracture (C-2) with a possibly “posttraumatic … disruption of the anterior ring of the C-1 .”
On May 4, 2006, Mr. Greene was admitted to the neurosurgery service of the Universal Medical Center for treatment of his type 2 odontoid fracture. He was assessed as having a significant fracture with dislocation and impingement of the cervical spine and as functionally quadriplegic . His treatment was C 1-2 cervical laminectomy and a fusion at C-5.
Once injuries to the spine or spinal cord are identified, Emergency Room textbook protocol is to order a neurosurgery or orthopedic consult. Dr. Black’ failure to obtain this specialty consultation after being advised of a cervical fracture was below the standard of care, contributing to Mr. Greene’s discharge with untreated and unstable cervical fractures, leading to his ultimate disability months later.
The court’s sole function on a motion for summary judgment is issue (questions of fact) finding, not issue determination. CCP §437c Molko v. Holy Spirit Ass’n (1988) 46 Cal3d 1092, at 1107 If a single such issue is found, the motion must be denied. Versa technologies, Inc. v. Sup. Ct. (1978) 78 CA3d 237 The issue of whether the standard of care was met thus being a question of fact, summary judgment is inappropriate.
CONCLUSION
Defendant’s motion for summary judgment fails to satisfy the burden of CCP § 437c in that it fails to provide admissible evidence, of material, undisputed, facts, which demonstrate that Plaintiffs claims are without merit on any theory, or which prove an affirmative defense. Further, Plaintiffs submit herewith substantial, admissible, evidence, controverting the single issue set forth in the moving papers.
For these reasons, Plaintiffs respectfully request the court to deny Defendant’s motion.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.