San Francisco Medical Malpractice Lawyer Blog

(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 Has Failed to Meet His Burden of Proof, the Evidence Presented Does Not Preclude the Trier of Fact from Finding That it Was More Probable than Not That His Treatment Fell below the Standard of Care.

The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) The standard of care in a medical malpractice case is a matter peculiarly with in the knowledge of experts. (Sinz v. Owens (1949) 33 Cal.2d 749, 753.) Thus, expert testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation] unless the negligence is obvious to a layperson. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)

To be entitled to summary judgment in his favor, Dr. Lee is required to present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that his treatment fell below the standard of care. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297,305.) Dr. Lee has failed to present any such evidence. In support of his motion Dr. Lee submitted a declaration from vascular surgeon Robert White, M.D. However, Dr. White's declaration fails to provide any factual basis or explanation for his opinions. Pursuant to Kelley v. Trunk, an expert declaration must provide more than just the ultimate conclusion. (Kelley v. Trunk, supra, 66 Cal.App.4th at p. 524.)

Continue reading " Medical Negligence Suit File Against San Francisco Doctors, Part 6 of 11 " »

(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.)

POINT AND AUTHORITIES

Defendant Has the Burden of Persuasion That There Is No Triable Issue of Material Fact, and That He Is Entitled to Judgment As a Matter of Law.

A defendant moving for summary judgment has the burden of presenting facts to negate an essential element of each cause of action or to show there is a complete defense to each cause of action. [Code Civ. Proc., § 437c, subd. (p)(2).]

In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, the California Supreme Court clarified the parties' burdens on a summary judgment motion as follows:

[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.... There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.... A defendant bears the burden of persuasion that "one or more elements of the cause of action" in question "cannot be established," or that "there is a complete defense" thereto.
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at p. 850, fns. omitted; Code of Civil Procedure § 437c, subd.(o)(2).)

Continue reading " San Franciso Hospital Sued For Medical Malpractice, Part 5 of 11 " »

(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, plaintiff's blood pressure again dropped and he was diagnosed with another massive abdominal bleed. A central venous catheter was placed in his groin by Dr. Stuart. A third emergency surgery was performed by Dr. Green, Dr. Smith and Dr. Lee. 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. Lee finally discovered the source of bleeding, a laceration at the posterior aspect of the a bifurcation and an associated kissing laceration of the left common iliac vein. The two lacerations were repaired and the abdomen was left open. Two days later, another laparotomy was performed and plaintiff's abdomen was closed.

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

SUMMARY OF ARGUMENT

Defendant, Dr. Lee's Motion for Summary Judgment must be denied based upon the following:
1) Defendant has failed to meet his burden of proof, the evidence presented does not preclude the trier of fact from finding that it was more probable than not that his treatment fell below the standard of care;

Continue reading " San Francisco Man Disabled After Botched Surgery, Part 4 of 11 " »

(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 24,2006: Massive Bleed and Cardiac Arrest

Eight days after the initial surgery, plaintiff suffered a dramatic drop in blood pressure, was bleeding from his nose, and had a severe GI bleed. Dr. Lee placed an arterial and femoral line in plaintiff’s groin to measure his blood pressure and rapidly infuse blood. The line is placed using a guide wire which is inserted in the groin and up the iliac vein approximately 15-20 centimeters into the area of the bifurcation of the aorta. A hard rigid catheter is placed on top of the guide wire which, if erroneously placed, can cause injury to the aorta.
Gastroenterologist, Sandrina Ward, M.D., performed an emergent upper endoscopy to determine the etiology of the massive gastrointestinal bleeding. Dr. Ward ruled out any source of bleeding in the upper gastric tract.

From the abdominal bleeding, plaintiff suffered from abdominal compartment syndrome and went into respiratory arrest, CPR was performed, and he was emergently 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. The injury was directly opposite and facing a suture which was used by Dr. Green to repair the mesenteric injury during Plaintiff's original surgery on June 16th. Neither Dr. Green nor Dr. Smith identified this injury to the small bowel during the original surgery on June 16th.

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

Continue reading " Botched Surgery By San Francisco Doctors Results In Malpractice, Part 3 of 11 " »

(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 Verrees 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 and Dr. Lee were called to the operating room. 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. Green and Dr. Smith examined the peritoneal cavity for other areas of injury. Dr. Green inspected the small bowel and mesentery and found another laceration to the mesentery. An injury to the small bowel was missed. (See Dr. Green's June 16, 2006, Operative Report.) 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 and revealed a large right pulmonary arterial embolus. An IVC filter was placed by interventional radiologist, Dr. King.

Continue reading " San Francisco Surgeons Sued For Malpractice, Part 2 of 11 " »

(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 submits the following Memorandum of Points and Authorities in Opposition to James Lee, M.D.'s, Motion for Summary Judgment.

INTRODUCTION

Plaintiff's complaint consists of two causes of action: one for medical malpractice, and another for failure to give informed consent. The medical malpractice arises from multiple injuries sustained during a cholecystectomy surgery on June 16, 2006. Defendant Dr. Lee filed the instant Motion for Summary Judgment, or in the Alternative for Summary Adjudication. Dr. Lee has attempted to show that he met the standard of care, was not negligent and did not cause plaintiff's resulting injuries.

Dr. Lee filed one declaration in support of is motion, the declaration of Robert White, M.D. However, Dr. White's declaration fails to address the issue of Dr. Lee's duty to adequately inspect, discover and repair the source(s) of Plaintiff's continued abdominal bleeding. As such, Dr. Lee has failed to meet his prima facie burden of proof to show the nonexistence of any triable issue of material fact. Even assuming that Dr. Lee met his initial burden, plaintiff now provides an expert declaration that supports a finding of triable issues of material facts as to the breach of the standard of care by Dr. Lee.

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.; Mr. Black was to be released the same day.

Continue reading " San Francisco Man Sues for Medical Malpractice, Part 1 of 11 " »