San Francisco Medical Malpractice Lawyer Blog

The following blog entry is written to illustrate an example of a medical malpractice case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court. 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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 results of the blood workup would be reported to her primary care provider within three days. Three days later, Plaintiff went to her clinic, along with her whole family, to find out what those tests showed and to see whether it was okay to go on their vacation. Her symptoms were continuing, but now she complained of a swollen tender sternum. The nurse practitioner looked through the results of the tests and saw that the laboratory found two out of two bottles positive for Streptococcus Viridans. According to Plaintiff and her ten-year-old son, the nurse practitioner commented words to the effect, “Oh, by the way, they found some Strep in the tests, but that must be a skin contaminant. Go on your vacation, have a great time, and when you come back if you are still feeling ill, then you can have more blood work done.”

In the meantime, the nurse practitioner gave Plaintiff another Z-pak, just in case she still had a lingering low-grade infection, another prescription for Maxalt and a prescription for percocet for pain. The nurse practitioner testified in her deposition that she suggested that Plaintiff could stop by the hospital for a blood test on the way to her family vacation. Plaintiff denied that the nurse practitioner made such a suggestion, and there was nothing in the nurse's notes to that effect. Again, the Z-pak provided only temporary relief of Plaintiff's symptoms. Her family cut short their vacation and she returned once more to the clinic only to be prescribed another ineffectual antibiotic.

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

Continue reading "San Francisco Medical Malpractice Case Arises After Failure to Diagnose, Part 2 of 3" »

The following blog entry is written to illustrate an example of a medical malpractice case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court. 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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.)

TEXT:
2007 - Plaintiff, female age 45, had worked as a surgical nurse until 10 years ago when the first of her four boys was born. She intended to go back to nursing sometime after her youngest was in school. Beginning in mid-November 2007, Plaintiff went in to her local clinic complaining of an occasional fever of 102.5, general aches and fatigue. The nurse practitioner suspected influenza. Six days later, Plaintiff returned and told the nurse practitioner that her continuing symptoms were making it hard for her to care for her children. Although she did not have a fever at that time, the nurse practitioner suggested that Plaintiff might wish to get checked out at the local hospital, but that she could prescribe a Z-pak to see whether that would work. A Z-pak is a general spectrum of oral antibiotic. Plaintiff chose to try the Z-pak. The Z-pak seemed to temper Plaintiff's symptoms over the next week, but then the symptoms reappeared along with other symptoms.

Plaintiff returned to the clinic, and this time, she reported a headache, muscle aches, fatigue, night sweats, chest tightening and an unproductive cough. She said that the night sweats were so bad that she was wrapping herself in towels to keep from soaking her bed. The doctor told her that she was likely pre-menopausal, despite the fact that she was still having regular periods. He also told her that overweight people often sweat at night. As to her feeling so fatigued, the doctor noted that after all, she had four active boys. He thought her headaches might be from migraines, and so he prescribed Maxalt.

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

Continue reading "Failure to Diagnose Leaves San Francisco Mother With Extensive Injuries, Part 1 of 3" »

The following blog entry is written to illustrate an example of a medical malpractice case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court. 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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.)

First, she created a large, 8-square-inch open wound on the foot of a diabetic patient, knowing that even tiny open wounds can quickly become infected. However, she failed to prescribe antibiotics to guard against such infection. Knowing the potential for infection, she took a culture of the wound, which she sent to the San Francisco Hospital lab.
Further, she tightly covered the open wound with multiple layers of gauze and elastic. Among other things, this made it impossible for the condition of the wound to be observed by the patient or anyone else. It also may have diminished plaintiff's otherwise-healthy circulation in that foot.

Worst of all, she made no provision for frequent observation of the wound to monitor its status. She could have hospitalized plaintiff or could have arranged to have his wound checked either at her office or by another provider. By failing to provide for such observation, and, indeed, forbidding the patient to remove the elastic dressings, she prevented plaintiff's infection from being discovered and remedied at a point in time when his leg could have been treated and saved. At some point between the 12th and the 16th, the foot became unsalvageable, but if it had been properly monitored, he could have been started on IV antibiotic treatment immediately upon observation of infection (if not before), and the leg could have been saved.

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

Continue reading "Diabetic Gets Leg Amputated In San Francisco Medical Malpractice Case, Part 3 of 3" »

The following blog entry is written to illustrate an example of a medical malpractice case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court. 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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.)

At the February 16 appointment, plaintiff's foot was unwrapped and was found to be infected and necrotic. Plaintiff went immediately to Clovis Community Hospital, where he was diagnosed with a Staph infection and placed on IV antibiotics. He remained at Clovis for one day before being transferred to the Fresno Heart and Surgical Hospital.

When he arrived at Fresno Heart, he came under the care of vascular surgeon Amy Parish, M.D. Dr. Parish immediately realized plaintiff was septic and that his infected left lower limb would have to be amputated. She explained to plaintiffs that plaintiff would die of sepsis within a few days if the foot/leg were not amputated, and they consented to the surgery, which took place that same night, February 17, 2008.

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

Continue reading "San Francisco Medical Malpractice Lawsuit Arises From Failure To Treat, Part 2 of 3" »

The following blog entry is written to illustrate an example of a medical malpractice case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court. 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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.)

TEXT:
CASE INFORMATION
FACTS/CONTENTIONS
According to Plaintiff: Plaintiff, a 52-year-old Operations Manager, presented at defendant Physician's office on February 7, 2008 with pain in his left foot, due to having taken a misstep a day or so before. Plaintiff had Type-II diabetes and had been treating with defendant since June 2006 for diabetic foot care relating to his right foot.

On February 7, defendant diagnosed a Lisfranc fracture, with possible Charcot, placed him in a walking boot and sent him home, telling him to stay off the foot as much as possible.

On February 12, plaintiff returned on an urgent basis because of greatly increased pain in the foot. Defendant removed the walking boot and found a large blister covering the entire top of his foot. She drained and debrided the entire blister, creating a 2.5″ x 3.5″ open wound on the dorsum of the foot.

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

Continue reading "San Francisco Fails to Diagnose Diabetic Properly in Medical Malpractice Case, 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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.)

Civil Code Section 3333.1 Permits Defendants To Introduce Evidence Of Collateral Source Benefits.

Subsequent to the alleged malpractice by defendants, plaintiff received insurance benefits. Under Civil Code section 3333.1, defendants can introduce evidence of these benefits at trial. Subdivision (a) of section 3333.1 provides, in pertinent part:

"In the event the defendant so elects, in an action for personal injury against a health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to United States Social Security Act, any state or federal income disability or worker's compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental or other health care services ... "

Section 3333.1, subdivision (a) suspends the common law "collateral source rule," under which a defendant is ordinarily precluded from introducing evidence of compensation and benefits that plaintiff receives from other sources, such as medical and disability insurance. (See, e.g., Arrambula v. Wells (1999) 72 Cal.App.4th 1006, 1009; Rotolo Chevrolet v. Superior Court (2003) 105 Cal.App.4th 242.)

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

Continue reading "Improper Follow-up Care By San Francisco Orthopedic Surgeon Leads To Malpractice Suit, 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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.)

ALLEGATIONS

Plaintiff contends that Dr. Hall's surgeries and follow-up care fell below the standard of care and were the cause of her injuries and that she suffered pain as a result of two unnecessary surgeries performed by Dr. Hall on January 27 and May 28, 2008. However, plaintiff herself has stated that after the November 2005 total left knee replacement by Dr. Jones, she has made a complete recovery and healed well. Presently, she experiences very little pain other than pain she characterizes as consistent with her age.

As stated above, the defendants have designated an expert who will testify on the issue of causation. These experts will opine that plaintiff has not been injured by any action, or claimed inaction, by the defendants.

The Defendants' Alleged Medical Negligence Was Not The Proximate Cause Of The Plaintiffs Injuries.

If a result to a patient would have occurred in the ordinary course of events anyway and independently of anything done or not done by a physician, the result cannot be said to have been caused by the physician. (Huffman v. Lindquist (1951) 37 Cal.2d 465, 479; Deckard v. Sorenson (1960) 177 Cal.App.2d 305, 308; Bennett v. Los Angeles Tumor Institute (1951) 102 Cal.App.2d 293, 296 and Frantz v. San Luis Medical Center, supra.

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

Continue reading "Negligence By San Francisco Surgeon Results In Malpractice Suit, 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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 November 2, 2008, plaintiff returned to Dr. Lee for a second opinion, as she was experiencing burning pain radiating down the lateral aspect of the lower leg from the knee to her ankle. Dr.Lee examined plaintiff and discovered full knee extension and flexion to 115 degrees with the patella tracking laterally. Dr. Lee told her she needed more time to heal after plaintiff stated she wanted to review the x-rays ordered by Dr. Hall on October 6th. Plaintiff requested a third opinion and Dr .Lee offered to refer her to Dr. Michael Davis, a physician not affiliated with Universal Medical Clinic.

Dr. Davis examined plaintiff on December 8, 2008. He noted a problem with lateral tracking of the patella. Plaintiff complained of pain in the anterolateral and lateral aspect of the left knee and lateral aspect of the left leg. He recommended studies including a standing long leg alignment from hip to ankle of both legs, merchant views of both knees, and possibly a CT scan of both hip and distal femur. It should be noted that an x-ray taken on January 1, 2005 shows the patella sitting fine and in good position.

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

Continue reading "Knee Replacement Nightmare For San Francisco Woman Leads To Medical Malpractice Action, 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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. Hall for a postoperative visit on June 7, 2008. Plaintiff complained her stitches were bugging her and that they were tearing. Dr. Hall noted the incision was clean and dry and that plaintiff could do an SLR. An immobilizer was applied. Post op on June 14, 2008, Dr. Hall saw plaintiff for a follow-up visit. Plaintiff reported that she was doing okay. Plaintiff could do a SLR. By June 28, 2008, plaintiff presented to Dr. Hall for a follow-up visit. Plaintiff complained of left knee stiffness. Dr. Hall noted plaintiff had good quadriceps and the patella was centralized. Plaintiff had 75% flexion and appeared to be healing well.

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

Continuing, on July 19, 2008 plaintiff complained of left knee pain. Plaintiff could perform a good SLR but displayed a 10-degree lag. He also noted plaintiff had good flexion and the patella was tracking centrally. By August 16, 2008, however, plaintiff complained of soreness and tightness in her left knee. Dr. Hall noted her quadriceps range of motion and stability were excellent. Plaintiff discussed returning to work and Dr. Hall released her to return to work and follow-up as needed.

Continue reading "San Francisco Woman Needs Several Surgeries to Repair Knee Damage In Malpractice Suit, 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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 24, 2008, plaintiff returned to Dr. Hall for a follow-up visit. Plaintiff complained of pain when trying to walk without a splint. Dr. Hall noted an extensor lag when plaintiff attempted an SLR and also noted maltracking of the patella. Clinically, her knee was locking. Dr. Hall's impression was patellar instability with subluxation. X-rays showed slipping of the prosthetic patellar component onto the lateral side. He advised plaintiff that unless her knee showed improvement, she should undergo a patellar revision and quadriceps repair.

Plaintiff next presented for a follow-up visit on April 14, 2008, complaining that her patella had drifted laterally. Dr. Hall recommended a revision patellar arthroplasty, and discussed with plaintiff the risks and benefits of the procedure. Plaintiff elected surgery.

On May 28, 2008, Dr. Hall, with Dr. Lee assisting, performed a quadricepsplasty and quadriceps realignment of the left quadriceps. A complete lateral release was carried out from the tibia proximally on the lateral aspect, which helped to control the mild tracking and subluxing, but did not completely settle the patella in its groove.

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

Continue reading "San Francisco Hospital Sued After Patient Undergoes Multiple Knee Surgeries, 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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.)

As instructed, on January 12, 2008, plaintiff presented to Dr. Hall for another follow-up visit. Plaintiff complained of left knee and left heel pain. Dr. Hall windowed the heel of the cast to relieve pressure and decrease plaintiff's pain. Dr. Hall discussed the possibility of a lateral release of the patella with scope. He explained the risks and benefits of the procedure to plaintiff.

Dr. Hall saw plaintiff for a pre-operative evaluation at which time she reported pain in her left knee. She was able to perform an SLR but there was maltracking of the patella. Dr. Hall and plaintiff discussed the risks and benefits of an arthroscopy and lateral release with possible medial repair. The arthroscopy with lateral release of plaintiffs left patella was performed on January 27, 2008. The scope showed maltracking and subluxing laterally. In addition, flexion was limited. The lateral release was performed and improved the position and tracking of the patella significantly with 90 to 95 degrees of flexion achieved.

On February 5, 2008, plaintiff presented to Dr. Hall for a postoperative follow-up visit. Plaintiff complained of pain in her left knee but reported that it felt stronger. She was able to perform a SLR with little assistance. The knee was placed in an extension splint. X-rays taken on this date do not show any complications with the tibial and femoral components.

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

Continue reading "Medical Center In San Francisco Must Defend 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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 November 17, 2007, the plaintiff was discharged from Universal Community Hospital and was ambulating well without any significant problems noted. On that same day, plaintiff was transferred and admitted to Community Care and Rehabilitation Center ( CCRC ). On November 20, 2007, Dr. Hong (no longer a defendant in this matter) briefly evaluated plaintiff and ordered that she continue to mobilize with her left leg until re-evaluated. Plaintiff was discharged from CCRC on November 26, 2007.

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

Plaintiff presented to Dr. Hall on December 1, 2007 for a two-week follow-up visit. He noted plaintiff had problems with flexion and instability. Plaintiff could not perform a seated leg raise ("SLR") and the medial side of her knee showed some "bogginess." Dr. Hall stated that the wound felt boggy and soft on palpation. Dr. Hall decided to place plaintiff in a cylinder cast in extension because of her inability to perform an SLR.

Continue reading "San Francisco Surgeon Botches Knee Surgery, Commits Malpractice, 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial 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.)

Trial Brief of Defendants William Hall, M.D., and Universal Medical Clinic.

PARTIES

Plaintiff Sandy White is represented by the ABC Law Offices in San Francisco.

Defendants William Hall, M.D., and Universal Medical Clinic are represented by the XYZ Law Firm of San Francisco.

STATEMENT OF FACTS

Dr. Hall is an Orthopedic Surgeon practicing at Universal Medical Clinic in San Francisco. On February 21, 2007, plaintiff underwent a right total knee replacement surgery performed by Dr. Hall at Universal Community Hospital. On February 25, 2007, Dr. Hall discharged plaintiff from Universal Community Hospital after she had been doing well and ambulating with physical therapy. There were no postoperative complications and the outcome was satisfactory as plaintiff was noted to have recovered very well from the right total knee replacement.

On November 5, 2007, plaintiff presented to Dr. Hall at Universal Medical Clinic for a preoperative visit concerning a left total knee replacement. Dr. Hall noted that the left knee possessed a valgus deformity and pain upon flexion. According to Dr. Hall, plaintiff was a candidate for the surgery due to arthritis in all three components of the knee and three years of left 13 knee pain. He discussed the risks, benefits and alternatives with plaintiff.

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

Continue reading "San Francisco Woman Files Medical Malpractice Suit Against Surgeons, Part 1 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

Parents of 2-year-old Malyia Jeffers are suing Sacramento's Methodist Hospital after alleged ER negligence resulted in the amputation of their daughter's hands and feet.

"At this point she couldn't walk," the girl's father, Ryan Jeffers, told KXTV. "I was carrying her around for another hour-and-a-half. They tell us we're next, so we're figuring we're next. Still, hours went by so I really told them that ... you have to see her now. Her fever's gone up, hasn't gone down from the Motrin or Tylenol."

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

Once seen by medical staff, Malyia's condition required that she be flown to Stanford University Hospital, where she was diagnosed with septic shock. The shock resulted in the loss of her feet, her left hand and part of her right hand.

In rare, more aggressive types of strep, the streptococcus bacteria that causes the illness can move from the throat to the bloodstream and the resulting sepsis can lead to the loss of extremities, says Dr. Ari Brown, a pediatrician in Austin, Texas, and co-author of "Baby 411."

Continue reading "Toddler Malyia Jeffers Now In Bay Area Hospital After Catastrophic ER Malpractice" »

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

THE CARE RENDERED BY DEFENDANT IN NO WAY CAUSED OR CONTRIBUTED TO THE INJURIES COMPLAINED OF BY PLAINTIFF

In addition to proving that the defendant fell below the standard of care, to prevail in a medical negligence claim, the plaintiff must demonstrate that the defendant's malpractice caused injury to the plaintiff. Bolen v. Woo (1979) 96 Cal.App.3d 944, 953. The standard for establishing causation in a medical malpractice action was set forth in Jones v. Ortho Pharmaceutical Corporation (1985) 163 Cal.App.3d 396. In Jones, the court held that causation must be proven by reasonable medical probability based upon competent expert testimony. The court noted that a mere possibility is insufficient to establish a prima facie case and distinguished a reasonable medical probability from a medical possibility:

There can be many possible causes, indeed an indefinite number of circumstances which can produce an injury or death. A possible cause only becomes probable when in the absence of other reasonable causal connections, it becomes more likely than not that the injury was a result of its action.” Id. at 402-403. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

In the instant action, plaintiff alleges that defendants committed professional malpractice in that they performed procedures "in a negligent manner and below the standard of care," and that despite plaintiff's history of diabetes and gradually worsening condition of his cut, defendants, including Richard Brown, M.D., "conservatively treated and/or failed to properly diagnose and treat [plaintiff's] medical condition," resulting in severe and painful gangrene to his right foot.

Continue reading "San Francisco Doctor's Malpractice Results In Foot Amputation, Part 8 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 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

In this case, the attached declaration of Darla King, M.D. provides competent expert testimony as to the applicable standard of care. Dr. King is a very qualified, Board Certified vascular surgeon. The expert testimony of Dr. King should be taken as conclusive as to the issues in this lawsuit. Importantly, an expert's own declaration is sufficient to show the absence of triable issues for purposes of summary judgment, and the motion shall not be denied on the grounds of credibility if the party is otherwise entitled to summary judgment. Learner v. Superior Court (1970) 70 Cal.App.3d 656, 660, 130 Cal.Rptr. 51, 54. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Here, the only material issues raised are whether or not Dr. Brown fell below the standard of care and, if so, whether this resulted in injury. However, the undisputed facts demonstrate that Dr. Brown's care and treatment of plaintiff, including his recommendation of a right below-the-knee amputation, was proper and correct and, therefore, at no time did Dr. Brown fall below the standard of care in the community where he practices, nor did he cause or contribute to plaintiff's injuries. In fact, as the declaration of Dr. King illustrates, Dr. Brown's care and treatment of plaintiff was both correct and within the standard of care required of a reasonable vascular surgeon practicing in the professional community.

Continue reading "San Francisco Man Fights Hospital After Negligent Foot Amputation, Part 7 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 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

EXPERT TESTIMONY IS ESSENTIAL TO DETERMINE LIABILITY IN A MEDICAL MALPRACTICE ACTION

In a medical malpractice action, the requisite standard of care is determined by the applicable standard of care then existing in the particular professional community. Barton v. Owens (1977) 71 Cal.App.3d 484, 139 Cal.Rptr. 494. In Linderos v. Flood (1976) 170 Cal.3d 399, 551 P.2d 389, 131 Cal.Rptr. 69, the Supreme Court determined that the standard of care against which the acts of physicians are measured is a matter within the knowledge of experts and can only be proven by their testimony. The rationale for requiring expert testimony in medical malpractice actions was succinctly stated by the court in Barton:

In most instances there is a need for expert testimony on the subject of just what constitutes medical negligence, because the average judge or juror does not possess the necessary level of knowledge about medical malpractice to decide on its own whether the doctor was negligent.
Barton at 494, 139 Cal.Rptr. at 499. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Continue reading "Patient Files Lawsuit Against San Francisco Doctors For Medical Negligence, Part 6 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 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

SUMMARY JUDGMENT MUST BE GRANTED AS A MATTER OF LAW WHEN NO TRIABLE ISSUE AS TO ANY MATERIAL FACTS EXIST

It is well-established that a motion for summary judgment shall be granted when the moving party demonstrates that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code of Civil Procedure Section 437c(c). In making this determination, the court may rely on affidavits, declarations ... and matters of which judicial notice shall or may be taken. Code of Civil Procedure section 437c(b). For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

The summary judgment statute was revised as of January 1, 1993, and now specifies that a party bringing a motion for summary judgment need only establish a defense or only negate a necessary element of the challenged cause of action to justify entry of summary judgment. Code of Civil Procedure Section 437c(n); cf. Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1050.

Continue reading "San Francisco Hospital Patient Suffers Negligent Below-The-Knee Amputation, Part 5 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 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

Thereafter, on April 23, 2006, plaintiff underwent a right leg arteriogram, performed by Dr. Brown, and skin oxygen saturation studies of his right lower extremity in order to determine the extent of the vascular disease. These studies revealed the blood supply in plaintiff's ankle and proximally to the lower portion of the anterior tibia and peroneal arteries was very poor. In addition, the ulceration had extended laterally, including some of the heel area and involving all of the toes, and the oxygen saturation was only adequate from the ankle upward. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Accordingly, due to the lack of blood supply and tissue oxygenation, severe sepsis, and the intolerable pain plaintiff was experiencing, Dr. Brown recommended that a below-the-knee amputation be performed. That same day, April 23, 2006, Dr. Woo, assisted by Joe Black, M.D., performed a right below-the-knee amputation of plaintiff's right foot. Plaintiff tolerated the procedure well and there were no complications.

Notwithstanding, as elaborated infra, plaintiff cannot prove the essential elements of a breach of the standard of care or causation against the moving defendant.

Continue reading "Physician's Negligence Results In San Francisco Man's Catastrophic Injury, Part 4 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 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

STATEMENT OF FACTS

On or about April 21, 2006, plaintiff was seen in the emergency department at Universal Medical Center. At that time, he was assessed as having gangrene of the right foot, diabetes mellitus, and sepsis. The plan was to admit plaintiff under the services of his attending physician, Mary Smith, M.D., and to have plaintiff seen by surgeon, Paul Woo, M.D. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Thereafter, on April 21, 2006, a physical examination performed by Dr.. Woo revealed that plaintiff's right foot had no palpable pulsation on either of the dorsalis pedis, nor the posterior tibial artery. At that time, Dr. Woo's impression was gangrene of the right foot, and he recommended non-invasive studies of the arteries of the right lower extremity. Accordingly, on April 22, 2006, right lower extremity radiological studies revealed no significant stenosis and no occlusion, and that plaintiff's right foot gangrene was due to small vessel disease.

Continue reading "San Francisco Hospital Sued For Medical Malpractice, Part 3 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 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

On July 4, 2007, plaintiff Travis Lee filed a complaint against several medical defendants, including defendant Richard Brown, M.D. In his First Cause of Action, plaintiff alleges that in or about March of 2006, he presented himself at Universal Medical Center, under the care of defendant Mary Smith, M.D., complaining of a cut he received in his right foot. Subsequently, plaintiff alleges that he presented himself to the emergency room at National Medical Center due to severe pain and discoloration in his right foot and, thereafter, was San Francisco personal injury lawyer, Moseley Collins.">diagnosed with gangrene and an amputation was recommended. Plaintiff further alleges that defendant America INS refused to authorize the amputation and, accordingly, he was transported to Universal Medical Center where he underwent a right below-the-knee amputation on April 23, 2006. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Specifically, plaintiff alleges that each of the defendants committed professional malpractice in that defendants performed procedures "in a negligent manner and below the standard of care," and that despite plaintiff's history of diabetes and gradually worsening condition of his cut, defendants, including Richard Brown, M.D., "conservatively treated and/or failed to properly diagnose and treat [plaintiff's] medical condition," resulting in severe and painful gangrene to his right foot.

Continue reading "Negligent San Francisco Doctors Amputate Man's Foot, Part 2 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 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

Notice of Motion and Motion for Summary Judgment by Defendant Richard Brown, M.D. (C.C.P. §437c); Memorandum of Points and Authorities in Support Thereof.

This Motion will be made upon the grounds that there are no triable issues of material fact in this action in that the care and treatment rendered by defendant Richard Brown, M.D., to plaintiff Travis Lee, complied, at all times, with the applicable standard of care. Moreover, the care and treatment of defendant in no way caused, or contributed to, plaintiff's alleged injuries and damages. Defendant Richard Brown, M.D., is, therefore, entitled to judgment as a matter of law. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Continue reading "San Francisco Man Files Medical Malpractice Suit, 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 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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

Further, in the case Cottle v. the Superior Court of Ventura County (1992) 3 Cal.App.4th 1367, the Court of Appeal denied the plaintiff's petition for a writ of mandate seeking review of the order of the trial court which required plaintiff to produce evidence establishing a prima facie claim for personal injury. Accordingly, the plaintiffs in Cottle were required to show that they could sustain a prima facie case against defendants prior to the start of trial. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

In this matter, Defendants contend that Plaintiff is unable to sustain her cause of action against Defendants because Plaintiff lacks the required standard of care expert to prove her case of professional negligence. Accordingly, should the Court be disinclined to grant Defendants' motion to preclude standard of care testimony by Dr. Strong, Defendants respectfully request that a Cottle hearing or a 402 hearing be held to determine the qualification of Dr. Strong or Plaintiff's ability to sustain her case against Defendants, prior to jury empaneling in this matter.

Continue reading "San Francisco Female Needs Surgery After Chiropractic Malpractice, Part 9 of 9" »

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

IN THE ALTERNATIVE, THE COURT SHOULD CONDUCT A COTTLE HEARING OR SECTION 402 HEARING TO DETERMINE WHETHER OR NOT PLAINTIFF CAN MAINTAIN THEIR PRIMA FACIE CASE AGAINST DEFENDANT PRIOR TO JURY SELECTION.

Under California Evidence Code section 402:

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.
(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury...
(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

CAL.EVID.CODE section 402 (emphasis added). Further, California Evidence Code section 400 states in pertinent part:

Continue reading "San Francisco Medical Malpractice Victim Sues Her Chiropractor, Part 8 of 9" »

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

In this matter, Plaintiff is presenting expert, Steven Strong, M.D,. as her medical malpractice standard of care expert. Dr. Strong, however, is clearly unqualified to render standard of care opinions as to the conduct of Defendants in this matter. Specifically, in his deposition testimony, Dr. Strong demonstrated that he has absolutely no knowledge of how chiropractors, such as Dr. Davis, conduct themselves on a day to day basis, nor does he have any training in chiropractics or have contact with chiropractors, to have any familiarity of the standard of care that governs that field of medicine. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In deposition, Dr. Strong testified on June 8, 2008 and his second session on August 6, 2008, that he does not read any chiropractic journals. Further, Dr. Strong was unable to name any chiropractor that he has referred his patients to, which was also minimal. Moreover, he is not a member of any chiropractic organization. Dr. Strong has never practiced as a chiropractor. Dr. Strong has never gone to chiropractic school. He has never been taught any chiropractic techniques used to reduce subluxations. He has never used any chiropractic techniques to treat subluxations. He is not aware of any of the names of techniques used by chiropractors to correct subluxations.

Continue reading "Battle Of Medical Experts In San Francisco Chiropractor Malpractice Suit, Part 7 of 9" »

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

Whether a witness qualifies as an expert in a given field, and thus whether that witness's testimony as an expert will be admitted into evidence at trial, are fundamental issues for this Court to decide. The Court's exercise of its discretion to allow or exclude expert testimony will not be disturbed on appeal absent manifest abuse of discretion. Huffman v. Lindquist (1985) 37 Cal.2d 465, 476-478; Putensen v. Clay, supra, 12 Cal.App.3d at 1081. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Further, in Mann v. Cracchiolo (1985) 38 Cal.3d 18, the court emphasized the need for the expert to have a connection to the "field of the defendant." In the Mann case, the California Supreme Court's ruling reflects a careful analysis of the proposed expert witness's qualifications and cites specific evidence of the expert's qualifications to render expert testimony in the fields of medical malpractice at issue in that litigation. Id. At 38-40. Having analyzed the proposed expert witness's qualifications, the Court concluded:

Continue reading "San Francisco Chiropractor's Malpractice Causes Patient's Severe Injuries, Part 6 of 9" »

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

The competency of a witness to testify is a preliminary fact to be determined by the Court, not the trier of fact. Evidence Code sections 403, 405; Cooper v. Bd. Med. Exam (1975) 49 Cal.App.3d 931, 945. Courts have the obligation to contain expert testimony within the area of professional expertise, and to require adequate foundation for the opinion. Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523 [reversible error to admit foundationally defective expert testimony]. Upon challenge, an expert witness's qualifications must be established before that witness is permitted to testify. Evidence Code section 720(a). The burden is on the proponent of the expert testimony to demonstrate the witness's qualifications to testify. Evidence Code section 720. The incompetency of a witness to testify to certain matters renders that witness's testimony inadmissible. Evidence Code section 720. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

Case law establishes that a medical doctor is not automatically qualified to render expert opinions in all areas of medicine.

Continue reading "San Francisco Chiropractor Balks At Medical Malpractice Expert, Part 5 of 9" »

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

While there is no general rule for what qualifies an individual under section 720(a) to render an expert opinion in a medical malpractice case, the Supreme Court explained that the expert must have a general foundation for his testimony, basic education, training, occupational experience as well as practical knowledge of what is customarily done by the health care provider under similar circumstances:
The proof of that standard is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wigmore has classified as occupational experience - the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood.

Continue reading "Injured San Francisco Woman Files Suit Against Her Chiropractor, Part 4 of 9" »

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

The role of expert testimony in a medical malpractice action was explained in Willard v. Hagenmeister, (1981) 121 Cal.App.3d 406:

Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of care and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skills is not a matter of general knowledge and can only be supplied by expert testimony. Willard, supra, at page 412; citations omitted. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

See also Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943 (holding that the standard of care in a professional negligence case can be proven only by expert testimony); Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1250-1251 (discussing presentation of expert testimony with respect to the standard of care in an elder abuse case.)

Continue reading "San Francisco Chiropractor Fights Expert In Malpractice Lawsuit, Part 3 of 9" »

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

DR. STRONG IS NOT QUALIFIED TO RENDER EXPERT OPINION TESTIMONY AS TO THE STANDARD OF CARE APPLICABLE TO DEFENDANTS

To prevail against Defendants in this professional negligence action, Plaintiff has the burden of proving that Defendants' care and treatment fell below the standard of care, and further, that Defendants' conduct, if below the standard of care, caused or substantially contributed to Plaintiff's alleged injuries. The prevailing standard of care applicable to defendants can be introduced only through the use of qualified expert testimony. Flowers v. Torrance Memorial Medical Center, 8 cal.4th 992 (1994); Munro v. Regents of the University of California, (1989) 215 Cal.App.3d 977, 983-984; and Jones v. Ortho Pharmaceutical Corp. (1985) 63 Cal.App.3d 396, 402. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

The requisite standard of care is determined by the applicable standard of care that exists in a particular professional community. Barton v. Owen (1977) 71 Cal.App.3d 484. Thus, a health care provider is only required to exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances Mann v. Cracchiolo, (1985) 38 Cal.3d 18, at 36.

Continue reading "Woman Requires Surgery After Malpractice By San Francisco Chiropractor, Part 2 of 9" »

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, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

PLEASE TAKE NOTICE PLEASE TAKE NOTICE that Defendants, Paul Davis, D.C. and Universal Chiropractic, Inc. (hereinafter "Defendants"), hereby move this Court in limine before jury selection or the trial's commencement for an order precluding Plaintiff's expert, Steven Strong, M.D., from providing any standard of care testimony against Defendants on the ground that Dr. Strong is not qualified to render such opinions. This motion is based upon the accompanying Memorandum of Points and Authorities, the records and files of this action, and such further evidence or argument as may be submitted before or at the time of the hearing of this matter. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiff, Sylvia White (hereinafter "Plaintiff"), sought chiropractic care and treatment with Defendant, Paul Davis, D.C., at his facility, Universal Chiropractic, Inc., on an intermittent basis between July 2004 and October 2006. Plaintiff filed an action for professional malpractice against the defendants based on professional malpractice and intentional infliction of emotional distress related to the underlying alleged malpractice.

Continue reading "San Francisco Woman Sues Chiropractor For Malpractice, Part 1 of 9" »

(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.

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(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" »