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.)

There appears to be no federal common law on the issue of when a contractual waiver of a jury trial will be considered to be knowing and voluntary. At least none is cited by the defendants. In the absence of such federal common law, the law of the state in which the contract arose is to be applied under the foregoing principles.

California law has traditionally required those seeking to enforce the waiver of a fundamental right to meet strict criteria. Waiver requires a voluntary act, knowingly done, with sufficient awareness of the relevant circumstances and likely consequences. There must be actual or constructive knowledge of the existence of the right to which the person is entitled. The burden is on the party claiming a waiver to prove it by evidence that does not leave the matter doubtful or uncertain and the burden must be satisfied by clear and convincing evidence that does not leave the matter to speculation. In Re: Marriage of Moore (1980) 113 Cal.App. 3rd 22, 27.

Such a burden should not be placed on a plaintiff pursuing his or her rights in a personal injury case in the state of California.

Defendants seem to argue that some unidentified law, other than California's, allows a waiver of an important constitutional right such as a jury trial even if the person against whom the waiver is sought to be enforced did not waive that right knowingly or willingly. It is difficult to imagine that any body of law supports such a position. To simply argue, as Universal Plan does, that federal law favors arbitration begs the question. That question is: Where is there any evidence of a literal and knowing waiver and what body of law will impose a waiver where there is an absence of such evidence?

Continue reading " Health Plan Insurer Fights San Fancisco Woman In Her Medical Malpractice Action, Part 3 of 3 " »

(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.)

Attached hereto as Exhibit 1 is a true and correct copy of the Burks v. Kaiser case with the appendix attached to that opinion, which is a copy of the alleged arbitration waiver form which was held unenforceable by the Burks Court. A comparison of that document with Exhibit C attached to the Notice of Universal Plan Defendants' Petition to Compel Arbitration and Stay Action shows that they both suffer from the same defect in that the arbitration language is not prominently displayed as required by Section 1363.1.

Because of the defects in the putative arbitration election form at issue, Universal Plan argues that Section 1363.1 and Burks v. Kaiser Plan are inapplicable because federal Medicare statutes preempt state law.

However, defendants' preemption argument does not prove that Ms. Smith made a knowing waiver of her right to a jury trial in her medical malpractice suit. Whether a provision in a contract will or will not be considered a valid waiver must be determined according to state substantive law.

All that the defendants' argument amounts to is that federal law will preempt state law to the extent they conflict. The defendants do not inform this court as to which body of substantive law this Court should apply to make the determination as to whether the waiver was valid. Notably, the defendants do not point to the existence of federal substantive or common law governing the subject.

Continue reading " San Francisco Hospital Tries To Stop Woman's Medical Malpractice Lawsuit, Part 2 of 3 " »

(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’s Memorandum of Points and Authorities in Opposition to Defendants' Petition to Compel Arbitration and Stay Action

Defendants seek to enforce a purported arbitration clause in a written contract between plaintiff Summer Smith and the Universal Plan entities. Under California law, the alleged arbitration agreement signed by Ms. Smith and attached as Exhibit C to defendants' moving papers is not enforceable. Burks v. Kaiser (2008) 160 Cal.App. 4th 1021 dealt with an analogous situation. In that case, the plaintiff in a medical negligence or malpractice lawsuit against Universal Plan had signed an enrollment application form which contained language purporting to constitute a waiver of the plaintiff’s right to pursue a civil action and as agreement that the matter being resolved through Universal Plan's arbitration plan.

The court, citing Health and Safety Code §1363.1, held that the purported waiver was unenforceable. Because the arbitration language was not prominently displayed as that term was defined in the statute, Universal Plan's petition to compel arbitration was denied. Despite the clear holding of that case. Universal Plan as the moving party in this motion, asserts that Ms. Smith's purported waiver complies with California law because the arbitration disclosure is prominently displayed directly above plaintiff's signature. However, the Burks Court rejected such an argument in plain language:

Continue reading " San Francisco Woman Fights Arbitration Clause In Medical Malpractice Suit, Part 1 of 3 " »

(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's Supplemental Memorandum of Points and Authorities in Opposition to Defendant James Lee M.D.’s, Motion for Summary Judgment, continues below.

If Dr. Stuart is correct then the bleed must have been caused by either Dr. Green's or Dr. Smith's conduct during the initial surgery on June 16th or, during the placement of the arterial and femoral line by Dr. Lee on the 24th. Either way, according to Dr. Stuart he did not cause any of the injuries.

The following colloquy is supportive:

Q: Okay. Now here he [Dr. Smith] says in his operative findings: The posterior laceration of the bifurcation of the abdominal aorta and an anterior wall laceration directly behind the first wound of the left common iliac vein. Do you see that?
A: Yes.
Q: Did you cause any of those lacerations?
A: No.
Q: How do you know that?
A: Because I think it would be a - it would be essentially a physical impossibility for me to have done that.

Assuming Dr. Stuart did not cause these injuries, then they had to be caused by either Dr. Smith, Dr. Lee or Dr. Green. At a minimum, Dr. Stuart’s testimony raises a triable issue of fact as to whether or not Dr. Lee caused plaintiffs injuries.

Continue reading " San Francisco Surgeons Shift Blame For Obvious Medical Malpractice, Part 2 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.)

Plaintiff's Supplemental Memorandum of Points and Authorities in Opposition to Defendant James Lee M.D.’s, Motion for Summary Judgment

POINT AND AUTHORITIES

The Testimony of Dr. Stuart Raises a Triable Issue of Fact as to Whether Dr. Lee's Treatment Fell Below the Standard of Care and Was a Substantial Factor in Causing Plaintiff’s Injuries.

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 that not that his treatment fell below the standard of care. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) The testimony of defendant Paul Stuart, M.D., raises a triable issue of fact as to whether the conduct of Dr. Lee was the cause of plaintiff’s injuries.

As set forth in plaintiff’s Opposition to Motion for Summary Judgment, it is undisputed that at some point during his hospital stay plaintiff suffered the following 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.

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, plaintiff’s blood pressure again dropped and a central venous catheter was placed in his groin by Dr. Stuart. It is Dr. Stuart’s opinion plaintiff was already suffering from an internal bleed before he placed the central venous line.

Continue reading " San Francisco Man Suffers Pulmonary Embolism Due To Medical Malpractice, 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.)

Use of the res ipsa loquitur doctrine is especially suited to a medical or dental malpractice setting in which an unwitting and often unconscious or semi-conscious patient is at an evidentiary disadvantage because of his or her inability to demonstrate what occurred in the hospital or surgical room setting. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 945.) In this case, Plaintiff was unconscious at the time he sustained these injuries and cannot say with a reasonable degree of probability which defendant was negligent. However, it is undisputed he was injured. As affirmed by Dr. Chin, the type of injuries sustained by Plaintiff do not occur where due care is used and the proper practice is followed.

With respect to the issue of control, the Supreme Court in Ybarra v. Spangard (1944) 25 Cal.2d 486, held, because "[t]he control at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant ... this, we think, places upon them the burden of initial explanation ... It should be enough that the plaintiff can show an injury resulting from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make. " (Id. at pp. 492-493.) As discussed above, plaintiff's injuries were caused by surgical instruments within the exclusive control of the defendants.

Plaintiff is therefore entitled to the res ipsa loquitur presumption and the burden is shifted to Dr. Lee to produce evidence which proves he was not negligent in his treatment and care of Plaintiff. Plaintiff has met his burden to show the legitimacy of the issues raised in his pleadings. Public policy favors a trial on the merits and a determination by the jury on the contested issues of material fact.

Continue reading " Medical Malpractice By San Francisco Physicians Disables Patient, Part 11 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's Injury Is Not the Type That Occurs Absent Negligence on the Part of the Defendants. Thus, the Burden of Persuasion Shifts to Dr. Lee to Come Forward with Evidence to Disprove His Negligence.

During the course of the cholecystectomy and the subsequent treatment by the Defendants in this matter, Plaintiff sustained the following 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. (See Dr. Green's June 16, 2006, Operative Report; see also, Dr. Smith's Operative Report, June 28, 2008.) The injuries discovered on the 28th to the abdominal aorta and iliac vein are iatrogenic injuries (instrument caused), which do not occur absent someone's negligence.

Although all the defendants in this case deny their own culpability, each admits that these injuries were iatrogenic. Thus, plaintiff is entitled to a res ipsa loquitur presumption and the burden shifts to the defendants to produce evidence which establish they did not cause one, or all, of plaintiff's injuries.

The foundational or basic facts of the res ipsa loquitur presumption are well established. They are that the injury (1) is of a kind that ordinarily does not occur in the absence of someone's negligence; (2) is caused by an agency or instrumentality within the exclusive control of the defendant; and (3) is not due to any voluntary action or contribution on the part of the plaintiff... (Slater v. Kehoe (1974) 38 Cal.App.3d 819, 829; Ybarra v. Spangerd (1944) 25 Cal.2d 486, 490.) When these prerequisites are met, the trier of fact is allowed to assume existence of presumed fact unless defendant introduces evidence to contrary. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943.)

Continue reading " San Francisco Man Suffers Cardiac Arrest During Negligent Surgery, Part 10 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.)

There is a Triable Issue of Fact as To Whether Dr. Lee's Negligence Was a Substantial Factor in Causing Plaintiff's Injuries.

On June 24th Plaintiff was found to have suffered a massive bleed in his abdomen. Earlier in the day, 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. Assuming during the placement of these line, Dr. Lee lacerated the posterior wall of the abdomen aorta and the adjacent area of the left common iliac vein, it would be a breach of the standard of care and a substantial factor in causing plaintiff's injuries. Dr. Lee has presented no conclusive evidence confirming that his placement of the line did not cause injury.

Dr. White's declaration fails to adequately address the manner or method by which Dr. Lee placed the lines. Dr. White simply states that had Dr. Lee caused these injuries, plaintiff's condition would have rapidly deteriorated, thus, Dr, Lee could not have caused the injuries. What Dr. White ignores is the fact that following the surgery on the 24th, Plaintiffs condition did deteriorate, he almost died. The injuries sustained by Plaintiff do not occur in the absence of someone's negligence and there is a question of fact as to whether or not it was Dr. Lee's negligent placement of the lines caused the injuries.

However, even assuming Dr. Lee did not cause the injuries, as the vascular surgeon taking part in the laparotomy on the 24th, Dr. Lee was responsible for determining the source of the hemorrhage, including ruling out injury to the abdominal aortic bifurcation and the anterior wall of the left common iliac vein.

Continue reading " San Francisco Man's Gallbladder Surgery Leads To Malpractice Suit, Part 9 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.)

Assuming For Argument's Sake That This Court Finds That Dr. Lee Has Met His Initial Burden of Proof, Plaintiff Has Demonstrated The Existence of A Triable Issue of Material Fact as to Negligence and Causation.

As set forth above, only if defendant is successful in meeting his burden of proof does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, citing Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) The evidence of the party opposing the motion must be liberally construed. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal. App.4th 184, 189.)

Assuming for the sake of argument that Dr. Lee did meet this burden, the burden of proof then shifts to plaintiff, who has made a prima facie showing of the existence of a triable issue of material fact through the declaration of his expert, vascular surgeon Keith Chin, M.D. Thus, a triable issue of fact exists as to whether or not Dr. Lee's conduct fell below the standard of care and whether that conduct was a substantial factor in causing plaintiff's njuries.

There Is a Triable Issue of Fact as to Whether Dr. Lee's Conduct Fell Below the Standard of Care.

As a Board Certified General Surgeon with a fellowship in vascular surgery, Dr. Chin is intimately familiar with the anatomy of the abdominal and thoracic cavities, including the management of diseases and trauma affecting all parts of the vascular system, arteries and veins, except that of the heart and brain, and the standard of care required by a vascular surgeon. Dr. Chin's opinions are substantiated by the evidence, including plaintiffs medical records and the deposition testimony of Dr. Green, Dr. Smith, Dr. Lee, Dr. Stuart, and Dr. Stein.

Continue reading " San Francisco Surgeon's Procedure Fell Below Standard Of Care, Part 8 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.)

The court in Johnson v. Superior Court, supra, confirmed the Kelly court's holding and rationale. It held: [A]n expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Ciation.] (Johnson v. Superior Court, supra, (2006) 143 Cal.App.4th 297, 308.)

As in Kelly and Johnson, supra, Dr. Lee submits the declaration of Dr. White in support of his motion for summary judgment. Dr. White concludes Dr. Lee's conduct was within the standard of care. However, Dr. White's declaration consists solely of legal conclusions, is unsupported by adequate factual underpinnings, and is therefore deficient. Dr. White's declaration fails to address Dr. Lee's affirmative duty, as a vascular surgeon, to inspect, discover and repair all the sources of bleeding.

Dr. White acknowledges Plaintiff had a laceration of the bifurcation of the abdominal aorta and an anterior wall laceration; however, he ignores the fact that Dr. Lee failed to identify these lacerations during the surgery on June 24th. Dr. White offers no explanation as to when, if not on the 16th or the 24th, these injuries occurred. Further, Dr. White offers no explanation as to how these injuries occurred or who, if not Dr. Lee, caused them. Or, if Dr. Smith, Dr. Green or Dr. Stuart caused the injuries, then why did Dr. Lee fail to discover them? Moreover, Dr. White fails to discuss how the procedures employed by Dr. Lee, including but not limited to the placement of the arterial and femoral lines, could not have caused plaintiff's injury, he simply concludes it did not.

Continue reading " San Francisco Vascular Surgeon Sued For Malpractice, Part 7 of 11 " »