San Jose Medical Malpractice Lawyer Blog

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 San Jose area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

CASE INFORMATION
According to Plaintiff: Plaintiff, currently a 42-year-old accountant at a bank, underwent a mammogram on June 30, 2006 read by defendant radiologist. The study was interpreted as a BI-RADS 1, within normal limits. She was instructed to return for an additional screening mammogram one year later, but did not.

Plaintiff next underwent a screening mammogram on April 5, 2008. That study was read as showing a density in the right upper breast on the MLO view only. The report stated that the density had increased in size from the 2007 study. The study was read as BIRADS 0, additional studies needed. Plaintiff then underwent a diagnostic mammogram and ultrasound on April 20, 2008. These studies were interpreted by defendant as benign, BI-RADS III, follow up in four months requested.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "San Jose Woman Improperly Diagnosed Results in Terminal Cancer, Part 1 of 2" »

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 San Jose area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

The defense denied liability, asserting that the stroke was related to Serreno's diabetes, rather than the injection of Phenergan into the artery. Counsel also contended that the line was not arterially placed, but properly placed in the vein.

Following the injury, Serreno was placed on disability and claimed that he will likely be unable to engage in employment that requires standing, walking or balancing. He alleged that the injury had a substantial effect on his career as a security guard and police officer, and that he is now limited to potential desk jobs. He further claimed that even a desk job would be difficult, due to the extremely limited use of his left, non-dominant arm.

Serreno claimed past lost earnings of $113,862, and future lost earnings of $1,653,031, based on a loss of earning capacity of $50,320 a year. He further sought pain and suffering damages of $250,000 (capped by MICRA). He did not seek medical costs.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "San Jose Man Sues Hospital in Medical Malpractice Suit, Part 3 of 3" »

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 San Jose area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

Immediately after injection, Serreno developed difficulty breathing, had a stroke and was then intubated. The central line was then placed on a pressure transducer, which indicated that it was arterially placed. The central line was then discontinued, and an MRI revealed that Serreno had a serious brain injury.

Serreno sued the County, which controlled ABC Regional and its county employees, accusing Emmerson of medical malpractice, specifically negligent injection.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "San Jose Lawsuit Against Hospital for Negligent Practice, Part 2 of 3" »

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 San Jose area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

INJURIES: Serreno experienced a right watershed infarct in his brain with a distribution involving the middle cerebral artery and left parietal, resulting in hemiplegia. The condition resulted in left-side bodily weakness and permanent left-side brain damage.

Facts:
On March 21, 2009, plaintiff, Bob Serreno, 33, an unemployed security guard, went to ABC Regional Medical Center in Sacramento with complaints of abdominal pain. He was admitted into the intensive care unit after being diagnosed with diabetic ketoacidosis. After having two different IVs inserted in his arm, a nurse paged first-year resident John Emmerson to place a central venous catheter in Serreno. Emmerson responded roughly one hour and 45 minutes later, and attempted to insert the central line. Emmerson was unable to do so, and opted to place the line in Serreno's internal jugular vein, and believed he succeeded after checking for pulsatility and the color of the blood in the line.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "San Jose Medical Malpractice Case For Man With Brain Injury, Part 1 of 3" »

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

THE COURT'S POWER

California Code of Civil Procedure Section 437c gives this court the power to grant this motion upon showing that there are no triable issues of material fact.

The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107. It is pointless to declare in the abstract that summary judgment is a disfavored remedy. Reader's Digest Association v. Superior Court (1984) 37 Cal.3d 244, 252. On summary judgment, the moving party's burden is more properly one of persuasion rather than of proof, since he must persuade the court there is no material fact for a reasonable trier of fact to find, and not prove any such fact to the satisfaction of the court itself as if it were sitting as the trier of fact. Molko, supra at 372-374.

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

California's highest court clarified the law that courts must apply in ruling on motions for summary judgment, bringing this state's law closer to its federal counterpart in order to liberalize the granting of such motions. Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855, 859 (emphasis added). The Supreme Court made clear that a defendant moving for summary judgment is no longer required to conclusively negate an element of the plaintiffs cause of action. Id. at p. 864. All the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action. Id. The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. Id. at p. 865.

Continue reading "San Jose Woman Must Battle Her Surgeon In Malpractice Lawsuit, Part 8 of 8" »

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

PLAINTIFF CANNOT CAUSALLY RELATE DEFENDANT'S CONDUCT TO ANY
PURPORTED DAMAGES OR INJURIES

A medical malpractice plaintiff must show that defendant caused his/her injury. Causation provides the essential link between the negligent act and the damage suffered by the party seeking recovery. The Court of Appeal has held that "a plaintiff, in order to establish liability, must prove more than abstract negligence unconnected to the injury." Noble v. Los Angeles Dodgers (1955) 168 Cal.App.3d 912, 916. It is plaintiff's burden to plead and prove the element of causation to support his claim for damages. In Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, the Court observed:

"The law is well settled in a personal injury action, causation must be proved within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is not sufficient to establish a prima facie case." (Citations omitted.) That there is a distinction between a reasonable "probability" and a "possibility" needs little discussion. There can be many possible "causes," indeed, an indefinite number of circumstances which can produce injury or disease.

Continue reading "San Jose Doctors Defend Malpractice Suit By Claiming Plaintiff Had Prior Injuries, Part 7 of 8" »

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

DEFENDANT'S CONTENTIONS

The care and treatment provided by Dr. Smith at all times complied with the applicable standard of care in the community and there was nothing that Dr. Smith did or failed to do that caused, contributed to, or was a substantial factor in any injury alleged by plaintiff. The surgeries by Dr. Smith, follow up care, recommendations and treatment were appropriate and within the standard of care. Plaintiff had pre-existing complaints including complaints of the left upper extremity due to prior surgeries. Additionally, plaintiff was totally disabled prior to the ATV accident on December 22, 2008.

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Defendant further contends that plaintiff's tests indicate that there is no objective cause for her symptoms. However, assuming that she does have complex regional pain syndrome, it was not caused, contributed to or aggravated by anything which Dr. Smith did or failed to do. This condition can occur with any type of trauma, including the trauma sustained by plaintiff on December 22, 2008, and it is a condition which occurs in the absence of negligence.

THIS MOVING DEFENDANT, OWEN SMITH, M.D, MET
THE APPLICABLE STANDARD OF CARE

Continue reading "San Jose Woman Alleges Surgeon Failed To Meet Malpractice Standard Of Care, Part 6 of 8" »

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

Plaintiff subsequently presented to Joe Ross, M.D., at the Center for Rehabilitation Medicine apparently as a referral by attorney Reginald Hill. Plaintiff reported to Dr. Ross that following the surgery with Dr. Smith she had good sensation throughout the fingers with good motion of the fingers. When Dr. Ross saw plaintiff on July 22, 2004, he noted an assessment of complex regional pain syndrome, left wrist and hand; traumatic left median and ulnar neuropathy and fracture, left distal radius with subsequent operative reduction and pinning. It was his opinion that plaintiff sustained a second injury to the left upper extremity on January 14, 2004, by an approximate 4 hour period where the left wrist was in a forced flexed position. He noted that her injury was preventing her from returning to work as a physical therapist.

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

A nerve conduction study which had been done on July 5, 2004, by Dr. Jones showed very mild delay in distal latency seen on left side . Thereafter, on October 14, 2004, Dr. Ross noted an assessment of post traumatic neuropathic pain, hypersensitivity, left wrist, hand and fingers and he again recommended that the patient follow through with a complete electrodiagnostic study of the left upper extremity.

EMG and nerve conduction studies were done on November 16, 2004, by Dr. Miles at Northern Neuro Center. Dr. Miles noted that motor and sensory nerve conduction studies revealed normal distal latencies, amplitudes and conduction velocities for left median and ulnar nerves. There was no significant side to side difference in sensory nerve study that was noted.

Continue reading "San Jose Surgeons Sued for Malpractice After Patient's Beach Mishap, Part 5 of 8" »

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

On March 10, 2004, Dr. Smith noted that plaintiff had 80% of normal range of motion and was to continue with therapy and return after seven (7) weeks. Thereafter, on May 19, 2004, plaintiff complained of tingling along a branch of the radial nerve. She had full pro-supination. X-rays showed that she was healed and there was mild articular irregularity. The radiology report noted there to be diffuse osteopenia and mild deformity of the lateral aspect of the distal radius, likely related to the known fracture. Dr. Smith had an extensive discussion with plaintiff regarding her prognosis and the fact that she could follow up with him as needed. He also discussed the need for aggressive therapy. He noted "patient non-compliant with OT protocol."

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff returned to plastic surgeon, Dr. Lee on March 4, 2004, at which time she complained of left breast pain. At that time she stated that because her systemic symptoms had improved, she had become more active and got herself into shape. She was noted to be teaching water aerobics among other physical activities. She had lost weight and increased her activity and as a result of the weight loss she began noticing rippling and wrinkling of both breasts.

Continue reading "San Jose Doctor Sued For Malpractice After Woman's ATV Accident, Part 4 of 8" »

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

Plaintiff presented to Dr. Smith on December 29, 2008, approximately seven (7) days following the accident. X-rays showed a fractured distal radius which was displaced. Dr. Smith noted that the patient previously had lots of pain in the left arm related to silicone implants. The plan was to perform surgery to repair the fractured distal radius, left wrist. Thereafter, on December 31, 2008, Dr. Smith performed a closed reduction and percutaneous K-wire fixation of plaintiff's fractured left wrist. It was noted that plaintiff had an intra-articular radial styloid fracture and volar avulsion fracture of the distal radius with moderate displacement. Plaintiff was made aware of risks, benefits and complications and informed consent was obtained. Prophylactic IV antibiotics were given at the time of surgery. A soft bandage and forearm splint was applied. Plaintiff tolerated the procedure well.

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

On January 7, 2004, plaintiff returned to Dr. Smith at which time she was one week postop and a referral was made to The Hand Center for removal of the brace and clamshell splinting, physical therapy and pin care education. TENS treatment for pain was given and a clamshell from Spica was fabricated. Range of motion exercises were taught by the therapist. It was noted that since the breast reconstruction in September 2002, she had had pain, burning and weakness in the left arm and she had been unable to grasp with force.

Continue reading "Wrist Surgery On San Jose Woman Leads To Medical Malpractice Suit, Part 3 of 8" »

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiff fractured her left wrist in an ATV accident on December 22, 2008. She claims that moving defendant, Dr. Smith fell below the standard of care in his care and treatment of plaintiff and that he caused or contributed to her alleged injuries.

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

STATEMENT OF FACTS

Plaintiff, Anna Brown's prior medical records reflect that she had pre-existing symptoms and complaints of the left upper extremity following a skydiving accident and breast reconstructive surgery. In fact, plaintiff was apparently totally disabled and on disability.

On or about December 22, 2008, plaintiff was involved in an ATV accident at which time she fractured the left distal radius. She was initially treated at Universal Hospital and instructed to follow up with an orthopedic specialist in the Sacramento area. Plaintiff presented to the Orthopedic Institute the following day on December 23, 2008, at which time she was evaluated by Donald Ward, M.D. During that visit, plaintiff related that on December 22, 2008, while at the beach and riding an ATV quad motorcycle, she tried to use the brake but her left hand could not grip due to prior nerve damage and breast reconstruction.

Continue reading "Botched Hand Surgery Leads To San Jose Medical Malpractice Action, Part 2 of 8" »

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

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

Notice of Motion and Motion for Summary Judgment By Defendant, Owen Smith, M.D.; and Declaration of Ben Lee, M.D.

Defendant, Owen Smith, M.D, will move this Court for an order granting Summary Judgment in favor of defendant, Owen Smith, M.D. and against plaintiff, Anna Brown, in this medical malpractice action.

This Motion is made pursuant to California Code of Civil Procedure Section 437c and is based upon the grounds that Plaintiff's Complaint has no merit and there is no triable issue as to any material fact warranting trial with respect thereto because this moving defendant met the standard of care and did not cause or contribute to the injuries claimed by Plaintiff.

For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Pursuant to Evidence Code Section 452, moving defendants request judicial notice of all pleadings and records in the Court file in this action.

Continue reading "San Jose Woman Files Malpractice Lawsuit Against Local Surgeon, Part 1 of 8" »

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.

(Please 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.)

It is worth noting that situations similar to those described in this medical negligence action could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Plaintiff Must Join All Persons Necessary for Just Adjudication

A complaint shall state the names, if known to the pleader, of any persons who, by their absence, may leave the defendant subject to risk of incurring multiple or inconsistent obligations. If such persons are not joined as parties, the pleader must state in the complaint why they are not joined. C.C.P. §389(a) & (c).

If any person is allied in interest with plaintiff, but refuses to join as a co-plaintiff, he or she may be sued as a defendant. In such cases, the complaint must state the reasons why such person was so joined. C.C.P. §382. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff alleges that he is the "surviving heirs (sic) at law" of decedent. It is unclear whether there are other persons with standing to bring suit in this wrongful death action.

Continue reading "Negligent San Jose Hospital Fights Family's Wrongful Death Lawsuit, Part 6 of 6" »

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.

(Please 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.)

It is worth noting that situations similar to those described in this medical negligence case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Plaintiff's Complaint is Uncertain Because There Are No Facts to Support a Cause of Action for Unfair Business Practices

Business & Professions Code §17200 (aka Unfair Competition Law or UCL ) prohibits unfair competition, which includes any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with section 17500) of Part 3 of Division 7 of the Business and Professions Code. An unfair business act occurs if it offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. To plead Business & Professions Code §17200, plaintiff must state with reasonable particularity facts to support the statutory elements of the violation. Khoury v. Malv's of California, Inc. (1993) 14 Cal.App.4th 612.

Here, plaintiff's complaint, at page 5, sets forth a claim titled Unfair Business Practices and alleges that plaintiff's allegations as set forth before and general allegations below constitute the facts in support of this claim. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Continue reading "San Jose Healthcare Facility's Negligence Results In Patient's Wrongful Death, Part 5 of 6" »

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.

(Please 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.)

It is worth noting that situations similar to those described in this medical negligence case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Plaintiff's Complaint for Professional Negligence is Barred by the Statute of Limitations.

A complaint is subject to a demurrer under Code of Civil Procedure § 430.10, subparagraph (e), if the facts alleged in the complaint and matters of which the court is entitled to take judicial notice show the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995; Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

The statute of limitations for medical malpractice claims is set out in Code of Civil Procedure §340.5. It provides, in pertinent part:

In an action for injury or death by a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through use of reasonable diligence should have discovered, the injury, whichever occurs first. C.C.P. §340.5. (emphasis added)

Continue reading "San Jose Woman's Son Files Malpractice Action Against Hospital, Part 4 of 6" »

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.

(Please 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.)

It is worth noting that situations similar to those described in this medical negligence case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

LEGAL ARGUMENTS

Plaintiff's Complaint is Uncertain Because the Facts Support Only a Cause of Action for Professional Negligence and Not for General Negligence

California Code of Civil Procedure §430.10 provides, in pertinent part:
The party against whom a complaint...has been filed may object, by demurrer ... to the pleading on any one or more of the following grounds:
(e) The pleading does not state facts sufficient to constitute a cause of action.
(f) The pleading is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

A demurrer may be taken to the entire complaint or to any of the causes of action stated in the complaint. Code Civ. Proc. §430.50. For the purposes of testing the sufficiency of the cause of action, the demurrer assumes all material facts alleged in the complaint to be true. Serrano v. Priest (1971) 5 Cal.3d 584, 591, cert denied, 432 U.S. 907.

Continue reading "San Jose Family Files Medical Malpractice Suit Against Physicians, Part 3 of 6" »

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

STATEMENT OF FACTS

Pro per plaintiff Vernon Hill filed his complaint on May 11, 2009, alleging wrongful death relating to the treatment and care defendant provided to his mother and decedent, Abigail Hill. According to plaintiff, defendant NMC's treatment on various days in 2006 resulted in plaintiff's mother's death. The date of death is not alleged. Plaintiff alleges that he is the surviving heirs (sic) at law of decedent. Plaintiff does not identify his relationship with the decedent although defendant understands she was his mother. Plaintiff does not identify others who may have standing, nor does he state that he is the only person with standing. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

COMPLAINT ALLEGATIONS

Plaintiff's cause of action titled General Negligence alleges various facts regarding the care and treatment rendered to decedent by NMC. Plaintiff then alleges that NMC's negligent conduct led to decedent's pain and suffering and death.

Continue reading "Medical Negligence By San Jose Doctors Results In Patient's Death, Part 2 of 6" »

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Memorandum of Points and Authorities in Support of Defendant National Medical Center's Demurrer

INTRODUCTION

Plaintiff's complaint is based on the medical care provided to his mother and decedent, Abigail Hill, by defendants. Plaintiff alleges defendants' negligent medical care resulted in his mother's death.

The demurrer of National Medical Center to plaintiff's complaint and its causes of action should be sustained without leave to amend for the following reasons:

The complaint is uncertain. On the first page of the complaint, plaintiff checked boxes indicating causes of action for "Malpractice/Negligence" and "Wrongful Death." On page 3, plaintiff checked boxes indicating causes of action for General Negligence and Unfair Business Practices. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Continue reading "San Jose Woman Dies Due To Hospital's Negligence, Part 1 of 6" »

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

PLAINTIFFS SHOULD BE COMPELLED TO ARBITRATE ALL OF THEIR CLAIMS AGAINST DR. LEE BECAUSE THE FEBRUARY 27, 2005, PHYSICIAN-PATIENT ARBITRATION AGREEMENT GOVERNS ALL OF PLAINTIFFS' CLAIMS AGAINST DR. LEE.

A physician-patient arbitration agreement in compliance with Code of Civil Procedure section 1295 binds the signatory patient, as well as certain non-signatories. In Bolanos v. Khalatian, (1991) 231 Cal.App.3d 1586, the Court of Appeal ruled on the issue of whether an arbitration agreement applies to disputes by non-signatories. The facts in the Bolanos case are similar to those in the present case. Bolanos was a medical malpractice action brought against an obstetrician. (Id. at 1588.) The patient signed a physician-patient arbitration agreement, which was written in Spanish, because the patient did not read English. (Id. at 1589.) The defendant obstetrician moved to compel arbitration, and the plaintiffs challenged the submission of the matter to arbitration, in part, because the patient's husband did not sign the physician-patient arbitration agreement. (Id. at 1591.)

Continue reading "San Jose Family Sues Doctor For Malpractice For Birth Injury, Part 4 of 4" »

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

In addition to the above language, an arbitration agreement must include immediately before the signature line provided for the individual contracting for the medical services the following language in at least 10-point bold red type:

NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE I OF THIS CONTRACT. (Code of Civil Proc. §1295(b).) For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Here, the February 27, 2005, Physician-Patient Arbitration Agreement complies with the requirements of Code of Civil Procedure section 1295(a) and (b). The language proscribed by subsection (a), of Code of Civil Procedure section 1295, translated into Spanish, is included in Articulo 1 (Article 1) of the Physician-Patient Arbitration Agreement Mrs. Hernandez signed on February 27, 2005.

Continue reading "Arbitration Agreement At Center Of Controversy In San Jose Malpractice Suit, Part 3 of 4" »

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

ARGUMENT

PLAINTIFFS SHOULD BE COMPELLED TO ARBITRATE ALL OF THEIR CLAIMS AGAINST DR. LEE BECAUSE THE FEBRUARY 27, 2005, PHYSICIAN-PATIENT ARBITRATION AGREEMENT IS VALID.

The State of California has a strong public policy favoring arbitration over litigation as a speedy and relatively inexpensive means of dispute resolution which eases court congestion. (Pietrelli v. Peacock, (1993) Cal.App.4th 943, 946.) A court should use every effort to enforce arbitration agreements because arbitration is a highly favored forum for settling disputes. (Pacific Inv. Co. v. Townsend, (1976) 58 Cal.App.3d 1, 9.) A written arbitration agreement is valid and enforceable and irrevocable as consistent with standard principles. Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699. Once a document is signed, a proper arbitration agreement governs all subsequent open book account transactions for medical services unless rescinded by written notice within thirty days of signature. (Code of Civ. Proc. § 295(c).)

Continue reading "San Jose Physician Tries To Compel Arbitration In Malpractice Suit, Part 2 of 4" »

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.

(Please 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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Defendants' Memorandum of Points and Authorities in Support of Petition to Compel Binding Arbitration and to Dismiss Defendant David Lee, M.D., without Prejudice

BACKGROUND

This medical malpractice action arises from a fetal demise. On May 27, 2008, plaintiffs Kim Hernandez and William Hernandez (collectively referred to as Plaintiffs ) filed a complaint against defendants National Hospital and Dr. David Lee ("Dr. Lee") alleging a cause of action for medical malpractice. Mr. Hernandez alleged a cause of action for a loss of consortium. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

On February 27, 2005, Mrs. Hernandez signed a Physician-Patient Arbitration Agreement. (Color copy of the Physician-Patient Arbitration Agreement is attached as Exhibit A ; a courtesy copy of the Physician-Patient Arbitration Agreement, in English, is attached as Exhibit B. ) Mrs. Hernandez spoke Spanish so the Physician-Patient Arbitration Agreement Mrs. Hernandez signed was written in Spanish. The Physician-Patient Arbitration Agreement stated that all disputes as to medical malpractice will be determined by submission to arbitration and not by a lawsuit.

Continue reading "San Jose Parents Sue Hospital For Medical Malpractice, Part 1 of 4" »

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.

(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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

As the above facts show, Plaintiff is currently suffering from ongoing psychological problems which he traces to his CRPS/RSD injury. These psychological problems are such that he has attempted suicide twice, has received several weeks of inpatient psychiatric care, and has received ongoing outpatient psychiatric care and mental health counseling. These psychological problems are also the reason Plaintiff has given for being unable to complete his deposition in this case. Defendant respectfully submits that Mr. Smith's mental health is undeniably at issue in this case and that good cause exists for a mental examination. This examination would be performed by a licensed psychiatrist, David Black, M.D., in San Jose, California.

CONCLUSION

For the reasons set forth above, Defendant requests an order requiring Plaintiff Randall Smith to undergo a mental examination by David Black, M.D., a psychiatrist, at Dr. Black’s office located in San Jose, CA.

Continue reading "Patient In San Jose Develops Complex Pain Syndrome Due To Medical Malpractice, Part 4 of 4" »

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.

(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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Only an expert can determine what relationship Plaintiff’s mental health problems have to his CRPS/RSD, and/or whether they are related to or caused by pre-existing mental health issues. Defendant understands that Plaintiff may attempt to present Plaintiff's severe mental health problems at trial as side effects of his CRPS/RSD, and as a component of his damages. As such, a mental examination of Mr. Smith is necessary to Defendant's defense. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Defendant therefore requests a court order allowing plaintiff to undergo a psychiatric examination by David Black, M.D., a psychiatrist, in San Jose, California. Defense counsel understands that the examination will involve a discussion between Plaintiff and Dr. Rappaport regarding Plaintiff's relevant personal, medical and mental health history and his ongoing mental health problems and medical and psychological stressors.

Continue reading "Hospital In San Jose Sued For Medical Malpractice, Part 3 of 4" »

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.

(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.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

As far as Defendant is aware, Plaintiff continues to have ongoing mental health problems. Plaintiff has asserted these problems as the reason why he has not yet completed his deposition in this case. Plaintiff's complaint alleges that, because of Defendant's alleged negligence, he is going to be required to seek medical and/or psychological services in the future. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff has testified in his deposition that he has a pre-existing history of depression which was debilitating enough to cause him to miss work and to receive social security disability. Defendant's medical records suggest other pre-existing mental health problems. Defendant has not been able to fully question Plaintiff about these matters, because Plaintiff has been unavailable for his deposition.

Because Plaintiff has ongoing psychiatric problems, which he alleges are related to, or caused by, his alleged CRPS/RSD, Defendant requested in November 2008 that Plaintiff stipulate to a mental examination. Plaintiff's counsel refused.

Continue reading "San Jose Doctors Sued For Medical Malpractice, Part 2 of 4" »

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.

(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.)

Defendant Universal Medical Center ("Defendant") moves for a mental examination of plaintiff Randall Smith ( Plaintiff) by David Black, M.D., a psychiatrist, at his office located in San Jose, California.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

FACTUAL BACKGROUND

This is a medical negligence case. Plaintiff Randall Smith claims to have developed complex regional pain syndrome ( CRPS ), also known as reflex sympathetic dystrophy ( RSD ), from an IV needle insertion he received prior to undergoing an endoscopy on December 7, 2006, at General Hospital, part of defendant Universal Medical Center. Plaintiff claims that his CRPS/RSD went undiagnosed until January 24, 2007. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff has sought, and alleges that he will be required to seek, psychological services because of his alleged CRPS/RSD. In early January 2007, he sought psychiatric treatment at ABC Psychiatric Facility, because he experienced suicidal and homicidal thoughts related to his pain after the above IV placement. Both Plaintiff’s counsel, and his medical records, disclose that in September or October, 2008, Plaintiff sought inpatient psychiatric care, apparently because Plaintiff attempted suicide.

Continue reading "San Jose Man Files Medical Malpractice Suit, Part 1 of 4" »

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" »

(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.)

CAUSATION

As discussed above, the type of injuries suffered by plaintiff do not occur in the absence of negligence. It is undisputed, even by defendants own experts that one, some, or all, of the defendants caused plaintiff's injuries. Dr. Stanley Kim, who was retained by Dr. Green testified at deposition:

Q: So more probable than not that an instrumentality under the exclusive control of Dr. Green, Dr. Smith, Dr. Lee or Dr. Stuart caused the injury to the bifurcation of the aorta, correct?
A: Yes.

DR. GREEN

Dr. Green's placement of the first trocar or Veres needle during the initial surgery caused multiple vascular injuries, including a laceration to the left iliac vein, a laceration to the mesentery and small bowel. Dr. Green was below the standard of care in causing these injuries.

Dr. Kim, Dr. Green's retained expert, testified these injuries are not suppose to happen.

Q: you're not suppose to injure the vein, are you?
A:. No.
Q: You're not suppose to injure the mesentery, correct?
A: No. That's not the intent of the operation.
Q: And you're not suppose to injure the bowel correct?
A: That's correct.

The same response was given for the injuries to the mesentery and the bowel.

Dr. Kim confirmed these injuries were caused by Dr. Greenu's placement ent of the trocar
Q: Tell me how the vein injury was caused.
A: Most likely be the insertion of the trocar.

Continue reading "Multiple Surgical Errors Leave San Jose Man Disabled, Part 6 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.)

LIABILITY

Liability is clear. During the course of the cholecystectomy and the subsequent treatment by the defendants in this matter, plaintiff sustained the following injuries: 1) laceration of the left iliac vein, 2) laceration of the mesentery, 3) small bowel perforation, 4) a posterior laceration of the bifurcation of the abdominal aorta, and 5) an anterior wall laceration of the left iliac vein. These iatrogenic injuries (instrument caused) do not occur absent someone's negligence.

Although all the defendants in this case deny their own culpability for injuries to the aorta and adjoining iliac vein, each admits that all injuries were iatrogenic and they had to be caused by one of them. As set forth more fully in the motion filed concurrently herewith, plaintiff is entitled to a res ipsa loquitur presumption and the burden must shift to the defendants to produce evidence which establishes they did not cause one, or any, of plaintiff's injuries.

THE SECOND ACT OF NEGLIGENCE IS A SECOND CAUSE OF ACTION

Although plaintiff suffered multiple injuries when Dr. Green placed the original trocar in the iliac vein, the mesentery and the small bowel, which commutatively giv e rise to one general damage award of the $250,000 MICRA cap, Plaintiff suffered two totally separate injuries from potentially separate acts of negligence giving rise to a second and third $250,000 cap. Indeed had Plaintiff so chosen he could have brought a separate lawsuit for the injury to his abdominal aorta and for the left iliac vein. See (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848,1854. Each time a separate and distinct wrongful act causes this injury a separate cause of action arises because a separate right has been violated.)

Continue reading "Medical Malpratice By San Jose Doctors Leaves Man Disabled, Part 5 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.)

June 28, 2006: Hemorrhagic Shock and Cardiac Arrest

On June 28th, Plaintiffs blood pressure again dropped. Right femoral and venous lines were placed in his groin by Dr. Stuart. A third emergency surgery was performed by Dr. Green and Dr. Smith. A major hemoperitoneum was discovered with over five liters of blood intraperitoneally in the abdomen. It was not until the surgery on the 28th that Dr. Smith and Dr. Green finally discovered the source of bleeding, two totally separate injuries, a laceration at the posterior aspect of the aortic bifurcation and an associated kissing laceration of the left common iliac vein. The two lacerations were repaired and the abdomen was left open.

These injuries were four to five centimeters away from the first series of injuries. Two days later, another laparotomy was performed and plaintiff's abdomen was closed. These newly discovered injuries could have been caused from two separate events and certainly were caused by separate instrumentalities then that which lacerated plaintiff's iliac vein, mesentery, and small bowel on June 16th. As such, they are subject to two additional general damage recoveries, each in a separate amount not to exceed $250,000.

What was thought to be an outpatient procedure turned into a 35-day stay in ICU with multiple complications, two near death experiences and months of recuperation. Plaintiff was finally released from the hospital on July 21, 2006, totally disabled. (See Part 5 of 8.)

Continue reading "San Jose Man Almost Dies Due To Surgical Malpractice, Part 4 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.)

Gastroenterologist, Sandrina Ward, M.D. performed an emergent upper endoscopy to determine the etiology of the gastrointestinal bleeding. Dr. Ward ruled out any source of bleeding in the upper gastric tract that could account for the amount of blood or account for the fluid in plaintiff's abdomen.

As a result of the abdominal bleed, plaintiff suffered an abdominal compartment syndrome and went into respiratory arrest, CPR was performed, and he was errergently taken to the operating room where Dr. Green and Dr. Lee performed a laparotomy (opening of his abdomen). Dr. Green discovered a large hemoperitoneum, an enteral defect in the small bowel interloped mesenteric interstices caused during the first surgery. Neither Dr. Green nor Dr. Smith identified the bowel injury during the original surgery on June 16th although it was present. To not identify same was negligent. The failure to identify and repair the hole in plaintiff’s bowel may be a separate and distinct injury giving rise to a separate cause of action and a cap on general damages of $250,000.

Following the repair to the small bowel, plaintiff’s abdomen was left open. Two days later, on June 26th, Dr. Green inspected and closed the abdomen. Dr. Green failed to identify any additional sources of bleeding.

As the vascular surgeon taking part in the laparotomy on the 24th, Dr. Lee was responsible for determining the source of the massive hemorrhage, including rulding out injury to the abdominal aortic bifurcation and the anterior wall of the left common iliac vein.

Continue reading "San Jose Physicians Sued After Patient Suffers Cardiac Arrest, Part 3 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.)

June 16, 2006: Initial Surgery

Dr. Green's placement of the first trocar or Veress needle caused multiple vascular injuries, including a laceration to the left iliac vein, requiring immediate repair by a vascular surgeon. As a result, Dr. Smith identified and repaired a 0.5 cm laceration to the left common iliac vein. During the course of the repair to the iliac vein, Dr. Smith placed DeBakey clamps in the area of the bifurcation of the abdominal aorta. As a vascular surgeon, Dr. Smith had the duty and the obligation to inspect the area and discover any additional sources of injury or bleeding. This would include inspecting the aortic and iliac vessels to rule out a more deep and penetrating vascular injury from the trocar. Dr. Smith claims that as of his surgery on June 16th there was no separate injury to the bifurcation of the abdominal aorta and no injury to the iliac vein in that area

Dr. Green and Dr. Smith examined the peritoneal cavity for other area; of injury. Dr. Green and Dr. Smith inspected the small bowel and mesentery and found a laceration to the mesentery. The third injury to the small bowel was missed. Plaintiff's surgical site was closed and he was transferred to Universal Hospital.

June 19, 2006: Respiratory Failure

Three days after the original surgery, plaintiff was in respiratory distress. A CT pulmonary angiogram was performed which revealed a large right pulmonary arterial embolus. The following day, Defendant Dr. Stuart began treating Plaintiff for respiratory failure and complications of aspiration pneumonia and pulmonary embolism.

Continue reading "San Jose Vascular Surgeon Botches Gallbladder Surgery, Part 2 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.)

PLAINTIFF SEAN BLACK’S TRIAL BRIEF

THE PARTIES

Plaintiff: Sean Black, date of birth: XX/XX/1969.

Defendants: Owen Green, M.D., General Surgeon; Michael Smith, M.D., Vascular Surgeon; James Lee, M.D., Vascular Surgeon; Paul Stuart, M.D., Interventional Radiologist and Pulmonologist.

Injuries: Laceration of the left iliac vein, laceration of the mesentery and small bowel perforation, posterior laceration of the bifurcation of the abdominal aorta and, an anterior wall laceration, residual injuries including pulmonary embolism, respiratory arrest, massive abdominal bleed, cardiac arrests, and abdominal compartment syndrome.

Past Medical Bills: $651,150.12 (Approx.)

Future Medical Care: Monitoring of Deep Vein Thrombosis and potential surgery.

Wage Loss: $14,636.80, plus sick leave and annual leave earnings for the same of earnings: time frame.

General Damages: $750,000.00

STATEMENT OF FACTS

On June 16,2006, Plaintiff went to the Universal Surgery Center to have his gallbladder removed, also known as a "cholecystectomy." This was supposed to be a routine procedure performed by general surgeon Owen Green, M.D.

Continue reading "San Jose Surgeons Sued For Malpractice, Part 1 of 8" »