San Jose Medical Malpractice 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 present such issues to the court.

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

The Burgess court further remarked: We trust the ability of the trial courts to stringently enforce the limitations on damages in cases of this type through appropriate evidentiary rulings and jury instructions. (2 Cal.4th 1064 at 1085.) Thus, the Court expressed its faith in California's trial courts to enforce MICRA. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In short, assuming a plaintiff's verdict in this action, he is entitled to a maximum recovery of no more than $250, 000 in general damages. (Civil Code, § 3333.2, subd.(b).) Assuming liability is found, each culpable defendant will be severally liable for h[is] allocated share of [plaintiff's] noneconomic damages. (Marina Emergency Medical Group v. Superior Court (2000)84 Cal.App.4th 435, 441.) In this respect, there is no medical malpractice exception to Proposition 51 [Civil Code section 1431.2 (several liability of successive tortfeasors for non-economic damages)]. (Ibid.)

It is anticipated that plaintiff will raise the primary rights theory to support his claim of entitlement to $500,000 in general damages. An explication of that rule is found in Landerros v. Flood (1976) 17 Cal.3d 399. There, a minor sued a physician and hospital for malpractice, consisting of the failure to properly diacnose battered child syndrome and the violation of defendants' statutory duty to report that diagnosis to the proper authorities.

Continue reading " San Jose Hospital Tries To Limit Patient's Medical Malpractice Damage Recovery, Part 7 of 7 " »

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 present such issues to the court.

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

We are, of course, aware of what has been termed a "crisis" in the availability and costs of medical malpractice insurance. Available information indicates that this crisis has affected obstetricians keenly. Such adverse effects have been documented specifically in California. In light of these observations, we realize the imposition of liability in cases such as the one at hand may impose certain societal costs. For several reasons, however, we believe that the impact of our decision recognizing Burgess's claim against Gupta for damages for emotional distress will not unduly burden the community or health care providers in the field of obstetrics or result in the imposition of damages disproportionate to fault.

First, our Legislature has taken action to alleviate the "crisis" in medical malpractice liability and insurance by enacting the Medical Injury Compensation Reform Act of 1975 ... (hereafter MICRA). As a result of MICRA, the amount of noneconomic damages, such as damages for emotional distress, that may be recovered in an action arising from the professional negligence of a health provider is capped at $250,000. (Civ. Code, § 3333.2.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " San Jose Medical Malpractice Victim Fights To Recover Emotional Distress Damages, Part 6 of 7 " »

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 present such issues to the court.

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

In Burgess, Julia Burgess filed a medical malpractice action against obstetrician Gupta and a hospital after her child suffered permanent brain and nervous system damage during delivery. Defendants moved for summary adjudication of the mother's NIED claim. They argued that the mother could not recover damages for emotional distress because she did not contemporaneously observe the baby's injuries as required for recovery in a bystander situation. (Burgess, supra, 2 Cal.4th 1064 at 1069-1071.)

The trial court granted defendants' motion. The appeal court vacated the order on a writ of mandamus. The Supreme Court modified the appeal court opinion, holding: Burgess is permitted to recover damages as a result of the breach of the duty of care arising from the physician-patient relationship between Gupta and Burgess. Gupta's negligent breach of this duty is sufficient to satisfy the elements of a claim alleged for professional malpractice on Burgess's behalf. (2 Cal.4th 1064 at 1078. )

The precise question in Burgess was:

Can a mother recover damages for negligently inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of delivery? (2 Cal.4th 1064 at 1069.)

Continue reading " Statutory Damage Limitation At Heart Of San Jose Medical Malpractice Action, Part 5 of 7 " »

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 present such issues to the court.

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

Neither the California Supreme Court nor the appellate courts have ever held that a single plaintiff car recover more than the MICRA limit for noneconomic damages. To the contrary, the courts have consistently limited the maximum recovery to $250,000, regardless of the number of claims alleged. See Fein v. Permanente Med. Group, 38 Cal.3d 137, 157-164[](1985) a reduction of noneconomic damages to $250,000 when multiple diagnostic errors occurred); Atkins v. Strayhorn, 223 Cal.App.3d 1380, 1394 [ (1990) (limiting a husband and wife to $250,000 each for noneconomic danages); Under section 3333.2, the injured plaintiff' is entitled to recover noneconomic losses up to $250,000 [i]n any action for injury against a health care provider based on professional negligence.

In addition to Owren being an injured plaintiff, Eileen is also an injured plaintiff, having been awarded damages for loss of consortium. Although her cause of action arises from bodily injury to her husband, the injury suffered is personal to her. “Loss of her husband's consortium impairs a wife's interests which are wholly separate and distinct from that of her husband: ... the wife's loss is just as real as it is distinct. She can no longer enjoy her legally sanctioned and morally proper privilege of copulation or procreation, and is otherwise deprived of her full enjoyment of her marital state. These are her rights, not his.”

Continue reading " Professional Negligence Malpractice Suit Filed Against San Jose Surgeon, Part 4 of 7 " »

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 present such issues to the court.

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

Thus, this is a singular action involving successive acts of alleged medical malpractice causing plaintiff to sustain injuries that are causally interrelated. Under current case precedent, while each injured plaintiff is entitled to seek noneconomic damages, the maximum recovery permitted in any single medical malpractice action is $250,000...” (Yates, supra, 194 Cal.App.3d 195 at 2), italics in opinion.)

A succinct summary of relevant California case precedent interpreting section 3333.2 is found in Colburn v. United States (1998) 45 F.Supp.2d 787. There, the United States District Court (Southern District) issued a detailed order after the United States moved for summary adjudication of various tort claims of the parents of twins who died shortly after birth at Balboa Naval Hospital. (Id. at 788-793.)

As relevant here, the court allowed the following claims to go forward: (1) Mrs. Colburn's two wrongful death claims for the twins' deaths based on medical malpractice in treating her prior to their birth (Colburn, supra, 45 F.Supp.2d 787 at 791-793); (2) Mrs. Colburn's negligent infliction of emotion distress claim (NIED) as a direct victim of the hospital's negligence (id. at 793); (3) Mr. Colburn's claim for loss of consortium (id. at 794). Plaintiffs agreed to voluntarily dismiss Mr. Colburn's NIED and wrongful death claims. (Colburn, supra, 45 F.Supp.2d 787 at 789-790.)

Continue reading " San Jose Man's Noneconomic Damages Limited In Malpractice Lawsuit, Part 3 of 7 " »

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 present such issues to the court.

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

[I]t is evident from the terms of the statute that while each injured plaintiff is entitled to seek noneconomic damages, the maximum recovery permitted in any single medical malpractice action is $250,000 ... (Yates, supra, 194 Cal.App.3d 195 at 200, italics in opinion.) [Yates was a wrongful death action based on medical malpractice involving six plaintiffs: the widow and five adult children of decedent. Each claimed they sustained injury as a result of the death.]

In upholding the damage cap against plaintiffs' constitutional challenge, the Yates court relied on the Supreme Court's prior rulings in Fein v. Permanente Medical Group (1985) 38 Cal.3 137, 158 and American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 368-369.
Plaintiff’s contention that section 3333.2 unconstitutionally abridges the right to a jury trial (Cal.Const., art. I, § 16) is but an indirect attack upon the Legislature's power to place a cap on damages.

While it is clear section 3333.2 will in some cases result in the recovery of a lower judgment than would have been obtained before the enactment of the statute, it is well established that the Legislature retains broad control over the measure, as well as the timing, of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and that [it] may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest ... (italics in original).

Continue reading " Damages Limited In Plaintiff's San Jose Medical Malpractice Action, Part 2 of 7 " »

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 present such issues to the court.

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

Trial Brief of Defendant Paul Stuart, M.D., Re: MICRA Cap (Civil Code Section 3333.2)

INTRODUCTION

This lawsuit involves alleged successive instances of medical malpractice by the defendant medical providers. Plaintiff claims he sustained two injuries: a laceration to the posterior bifurcation of [his] abdominal aorta and injury to the left common iliac vein.

Under the MICRA cap, plaintiff is entitled to recover no more than $250,000 in noneconomic damages with defendants' potential fault liability apportioned between the original/subsequent treaters.

MEMORANDUM OF POINTS AND AUTHORITIES

PLAINTIFF'S MAXIMUM RECOVERY FOR NONECONOMIC DAMAGES IS $250,000.

Civil Code section 3333.2 provides:

(a) In any action for injury against a health care provider based on professional negligence, the plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage; (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000);

Continue reading " Damages At Issue In San Jose Medical Malpractice Suit, Part 1 of 7 " »

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 present such issues to the court.

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

A medical report does not meet the requirements of the business records exception. The report was not made in the regular course of business. There is no evidence that a report is made for each patient. In fact, it is clear that some reports were prepared not for the doctor but, in this case, "to whom it may concern."

The reports cannot qualify as a business record because there is no indication whatsoever that the reports were made at or near the time of the act, condition or event. In fact, the medical reports are prepared long after any treatment or care was rendered to the plaintiff. It is clear that the reports were prepared at or near the conclusion of treatment.

Furthermore, unless the custodian of records of the physician testifies as to the identity and mode of preparation of the medical reports, the reports are also inadmissible as hearsay.

Additionally, the business record exception pertains to a record of an act, condition or event. Any diagnostic opinion or opinion as to prognosis is not a statement of an act, condition or event.

Continue reading " Plaintiff Seeks To Introduce Expert Medical Reports In San Jose Malpractice Case, Part 2 of 2 " »

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 present such issues to the court.

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

MOTION IN LIMINE RE: INADMISSIBILITY OF PLAINTIFF'S EXPERT MEDICAL REPORT

INTRODUCTION

Any medical report sought to be introduced by plaintiff is inadmissible as hearsay and lacks sufficient foundation.

THE REPORT OF AN EXPERT IS NOT ADMISSIBLE INTO EVIDENCE

The report of an expert is not admissible into evidence. Expert reports are hearsay evidence since they contain statements that were made other than by a witness while testifying at a hearing.

Evidence Code Section 1200 provides:

(a) Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that if offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible.

Expert reports are not made admissible by the business records exception to the hearsay rule.

Continue reading " Expert Reports At Center Of San Jose Medical Malpractice Lawsuit Controversy, Part 1 of 2 " »

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

DR. STUART

Defendant Dr. Stuart s treatment of plaintiff began on June 19, 2006, when plaintiff suffered from respiratory failure and complications of aspiration pneumonia and a pulmonary embolism. On June 28th, plaintiffs blood pressure again dropped and right femoral venous lines were placed by Dr. Stuart. If Dr. Stuart caused injury to the left common iliac vein during the course of these placement of the femoral venous lines and/or caused a puncture/laceration to the aortic bifurcation it was below the standard of care and a substantial factor in causing plaintiff's second set of injuries.

DAMAGES

As a result of defendants' negligence plaintiff required multiple surgeries, a 35-day stay in the hospital and, he will require future care to treat his residual injuries. His future care includes the continued monitoring for deep vein thrombosis and the need to take Lovenox as a prophylactic each time before flying in an airplane. Additionally, plaintiff will need to wear a compression stocking to control the swelling in his legs for the remainder of his life. Dr. Green's expert, Dr. Kim, believes he will require future surgery.

It is not presently known whether health issues will arise from lymphodema in his left leg, and/or his inc reased blood clot risk, or other medical conditions arising out of the defendant's care. Although the cost of his future care has not yet been determined, his past medical expenses total $601,150.12. Defendants caused this $601,150.12 in damages that were paid by plaintiff's insurance for the harm they caused. Plaintiff's health coverage was provided by the federal government, a collateral source. The defendants are responsible for this economic loss.

Continue reading " San Jose Man Will Need Future Surgery Due To Surgical Malpractice, Part 8 of 8 " »

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

DR. SMITH

During the course of plaintiff's surgery on June 16th, Dr. Smith placed surgical clamps in the area of the bifurcation of the abdominal aorta. As the vascular surgeon it was Dr. Smith's obligation and duty to place these clamps in a manner which did not cause injury to plaintiff. If Dr. Smith caused injury to either the aorta at its abdominal bifurcation or the left common iliac vein via the placement of the surgical clamps, his conduct fell below the stand ird of care and was a substantial factor in causing plaintiff a separate injury. Dr. Smith has presented no evidence that his placement of the clamps did not cause injury.

However, even assuming Dr. Smith did not cause the injuries, he had an obligation and duty to inspect the area of the bifurcation of the abdominal aorta during the initial surgery to discover and immediately repair any and all additional sources of injury or bleeding. Dr. Smith's failure to discover and repair one of both of these injuries was below the standard of care and was a substantial factor in causing plaintiff's injury.

Although he seeks to blame Dr. Green, Dr. Smith was below that standard of care by not finding the bowel injury. Even his own expert admits this was a joint responsibility

DR. LEE

On June 24th, plaintiff was believed to have suffered a gastrointestinal bleed. On that day, Dr. Lee placed an arterial and femoral line in plaintiff's groin to measure his blood pressure and rapidly infuse blood.

Continue reading " Surgical Instruments At Heart Of San Jose Medical Malpractice Suit, Part 7 of 8 " »