Sacramento Injury Lawyer Blog

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

DEFENDANTS HAVE FAILED TO MEET THEIR BURDEN AND THEREFORE SUMMARY JUDGMENT MUST BE DENIED

Defendant submitted a Declaration by James Greene, M.D., to support the Motion for Summary Judgment. This "evidence" is insufficient, and therefore defendant's motion must fail. The declaration is improper, lacks foundation, and constitutes improper opinion testimony. Dr. Greene completely ignores those portions of the medical records that do not support his contentions, e.g., that Dr. Hall lacked experience with this type of surgery; that defendants should have halted the procedure after several drops in blood pressure attributed to "tugging on the lead;" and that he was "captain of the ship."

While expert opinions are given tremendous weight in Summary Judgment proceedings in medical malpractice cases, statements made without any notable foundation can not simply be accepted because they are made by a purported expert. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff is entitled to have a degree of scientific reliability applied to the defendants' expert declarations. Mere statements without any explanation or foundation other than I'm the expert, trust me are not persuasive. These "experts" have not been deposed in order to discover the basis for their opinions, nor have they provided any such basis in their declarations. This testimony is inadequate for purposes of summary judgment as it does not meet any kind of scientific reliability standard. See, e.g., Daubert v. Merrill Dow Pharmaceuticals. Inc. 509 U.S. 579 (1993); Frye v. United States 293 F. 1013 (D.C. Cir. 1923).

Continue reading "Doctor's Experts Present Weak Evidence In Sacramento Malpractice Case, Part 7 of 13" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

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 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.) Because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts (Sinz v. Owens (1949) 33 Cal.2d 749, 753), expert testimony is required to prove or disprove that the defendant performed in accordance with the standard of care unless the negligence is obvious to a layperson. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)

However, the expert testimony must be based on such matter as may be reasonably relied upon by an expert in forming an opinion on the subject. (Ibid.) With regard to a standard of care derived from a professional practice the induction of a rule from practice necessarily requires the production of evidence of an ascertainable practice. (Wheeler v. Bd. of Forestry (1983) 144 Cal. App.3d 522, 528, fn. 5.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

FAILURE TO MEET THE PREVAILING STANDARD OF CARE IN A MEDICAL COMMUNITY IS GROUNDS FOR MALPRACTICE

As is stated in Brown v. Colm (1974), 11 Cal. 3d 639; 114 Cal. Rptr. 128, the Supreme Court held that proof of the standard of care is ordinarily provided by another physician, and if a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes to the weight of his testimony rather than its admissibility. 114. Cal. Rptr., at 130.

Continue reading "Sacramento Physicians Failed To Meet Local Standard Of Care In Patient's Death, Part 6 of 13" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

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).) Where, as here, the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that the material fact was true. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

In this case, plaintiff has the burden of proving by a preponderance of the evidence that defendants' treatment fell below the standard of care. To be entitled to Summary Judgment in their favor, defendants were required to present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care. Only if defendants were successful in meeting this burden does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Family From Sacramento Presents Strong Malpractice Case Against Local Doctors, Part 5 of 13" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

GENERAL LAW OF SUMMARY JUDGMENT

The court's sole function on a Motion for Summary Judgment is issue finding ... not issue determination. The law and motion judge must simply determine from the evidence submitted whether there is a "triable issue as to any material fact." Code of Civil Procedure §437(c)(d); Weil and Brown, Civil Procedure Before Trial (1992), pages 60-65.

The function of a trial Court on a Motion for Summary Judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. Molko v. Holy Spirit Association (1988), 46 Cal. 3d 1092; 252 Cal. Rptr. 122.

If there is a single issue of fact in conflict, the motion must be denied (emphasis added). Versa Technologies. Inc. v. Superior Court (1978), 78 Cal. App. 3d 237; 142 Cal. Rptr. 570. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A material fact is a fact which must relate to some claim or defense in issue under the pleadings. Also, it must be essential to the judgment, or if proved, would change the outcome of the case. Pettus v. Standard Cabinet Works (1967), 249 Cal. App. 2d 64; 57 Cal. Rptr. 207.

Continue reading "Surgeon's Errors Lead To Death Of Sacramento Woman, Part 4 of 13" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

Ms. Smith was a relatively young (44 years) woman with three minor children who had recovered from her cardiomyopathy. Her previous echo was normal and she was asymptomatic. She did not require continued use of a defibrillator. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Use of lasers to extract leads requires experience and judgment to make the determination as to how much pulling to use on a lead, how long to pull on a lead, etc. Dr. Hall had never performed this procedure and Dr. Stephen Lee had only performed it 6-7 times per his deposition. Dr. Hall has responsibility for Ms. Smith's death as captain of the ship . He was monitoring the blood pressure, and he was the surgeon in charge. Per standard of care Dr. Hall should have halted the procedure when complications arose and if necessary obtain cardiology consultation to evaluate the situation and take the proper steps. Continuing the procedure caused the major injury to the vessels which led to Ms. Smith's death. The defendant physicians were not sufficiently experienced to perform this procedure.

Continue reading "Woman Dies In Sacramento Hospital As Result Of Medical Malpractice, Part 3 of 13" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

Decedent was scheduled for pacemaker and lead extraction secondary to the infection at Memorial by surgeon David Hall, M.D., on January 19, 2009. This was a percutaneous laser lead extraction.

Surgery began at 1532, with purulence encountered in the pseudocapsule. The generator was explanted, and around 1655 problems began. There is a handwritten note at 1700 stating there was easy removal of A-lead, but there were problems with the V-lead. Decedent had sudden loss of blood pressure which improved with released traction, but then dropped again. The surgeons apparently attributed the drop in blood pressure to tugging on the lead. The procedure continued producing another sudden drop in blood pressure and which point sternotomy was performed.

The decision was made to open up decedent's chest. There was absolutely no blood in the pericardium. Right chest was filled with blood. Large bore catheters were placed including one on the atrium. Rapid blood and fluid infusion was implemented. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On exploration, Dr. Hall found shearing of the right subclavian vein, innominate vein and complete shredding of the superior vena cava. The AICD lead (i.e. the V-lead) was found to have a large swath of superior vena cava and parietal pleura. The azygos vein had been sheared and retracted deep into the chest and was bleeding swiftly. Consequently, Ms. Smith died as a direct result.

Continue reading "Sacramento Woman Dies In Hospital Due To Malpractice, Part 2 of 13" »

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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

Plaintiff's Opposition to Defendant David Hall's Motion for Summary Judgement; Memorandum of Points and Authorities in Support Thereof. (CCP § 437c)

This opposition is based on the grounds that the care and treatment provided by defendants was below the standard of care, caused harm, and that triable issues of material fact exists mandating denial of the Motion for Summary Judgment.

These papers will be based upon this Opposition; the attached Memorandum of Points and Authorities; the Separate Statement of Disputed and Undisputed Material Facts; the Declaration of John Brown, M.D.; the Declaration of Michael Jones, Esq.; upon all of the pleadings, papers and files in this matter; and upon such other and further evidence as may be presented at the time of the hearing of this matter.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This is a medical malpractice case. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Decedent, Kim Smith developed pregnancy related cardiomyopathy in 2004 and was fitted with a AICD (Automatic Implantable Cardioverter Defibrillator). She had three children - aged 3, 9 and 12 years.

Continue reading "Sacramento Family Files Wrongful Death Suit Against Hospital, Part 1 of 13" »

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

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Plaintiffs' Claim for NIED Is Well Pled

Negligent infliction of emotional distress ("NIED") as a cause of action is especially useful in nursing home cases because the cause of action belongs to the resident's individual family members and is not part of the survival action or the wrongful death action. California Elder Law Litigation: An Advocate's Guide (Cal CEB 2005). Section 2.64.2 of the treatise provides,
"In direct victim cases, the plaintiff need not personally observe the negligent conduct, but the defendant must owe a duty of care directly to the plaintiff who claims the emotional distress, not just to the patient or other individual who is physically injured, [citations]. One can argue that a nursing home has a direct duty to a resident's family to take good care of the resident as a service to the family, not just to the resident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A nursing home has a duty to a patient's family members to notify them regarding changes in the patient's condition, [citations] If a school district deliberately conceals from parents a known risk to a student, it usurps the parents' prerogative to protect the child, and so is liable to the parents as direct victims when the child is injured, [citations] If a skilled nursing facility operator deliberately conceals from the patient or family members developing changes in the patient's condition, a parallel argument can be made that the family's prerogative to protect the patient has been usurped."

Continue reading "Reckless Abuse By Sacramento Nursing Facility Leads To Family's Lawsuit, Part 12 of 12" »

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

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Plaintiffs' Claim for Violation of the Patients Bill of Rights Is Well Pled

In their second cause of action, Plaintiffs made a claim for violation of the Patient Bill of Rights set from in Title 22 of the California Code of Regulations, Section 72527. Section 72527 provides that [p]atients have the rights enumerated in this section and the facility shall ensure that these rights are not violated ... and it specifically enumerates some 25 patient's rights, including the right to be free from abuse. However, there is not limitation set forth in Section 72527 that suggests that a cause of action lies only where the State has taken action and the action has not been corrected as suggested by Defendants. (Demurrer 8:20 - 25.)
In fact, Section 72527(b) provides, [a] patient's rights, as set forth above, may only be denied or limited if such denial or limitation is otherwise authorized by law. Reasons for denial or limitation of such rights shall be documented in the patient's health record. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In contrast, the statute cited by Defendants is Health & Safety Code Section 1417 et seq., also known as the Long-Term Care, Health, Safety, and Security Act of 1973 (hereafter the Long Term Care Act ). The intent of the Long Term Care Act was to establish a citation system for the imposition of civil sanctions by the State against long-term health care facilities in violation of state and federal laws and regulations. There is nothing in the Long Term Care Act that limits a patient's rights under Title 22 of the California Code of Regulations, Section 72527.

Continue reading "Sacramento Woman's "Patients Bill Of Rights" Violated By Nursing Facility, Part 11 of 12" »

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

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Defendants Have Improperly Interjected New Facts in Their Demurrer

Defendants assert in their Demurrer that Abbey had severe co-morbidities which included Parkinson's and dementia, which specifically prevented her own ability to eat. (Demurrer 6:7 - 9.) Those claims by Defendants are not supported by the facts set forth in the FAC. Defendants repeated references of Abbey's "co-morbidity" (i.e., the coexistence of two or more disease processes) is nothing more than a red herring and appears an attempt to suggest that because Abbey had Parkinson's and dementia then she must have been near death. That is simply untrue.

Rather, in paragraphs 30 and 31 of the FAC, Plaintiffs alleged that Defendants should have been aware of the serious risks associated with dysphagia (difficulty swallowing) since Abbey had Parkinson's and the skilled nursing facility and its nurses needed to carefully monitor her swallowing abilities. They did not, which failure was a clear breach of the applicable standard of care of care. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants also state, "glaringly," plaintiffs simply gloss over the fact that Ms. Albert had several significant co-morbidities, but attempt to articulate that she was relatively healthy. (Demurrer 6:26 - 28.) Defendants again attempt to direct the focus outside of the FAC.

Continue reading "Parkinson's Patient At Sacramento Nursing Facility Subjected To Abuse, Part 10 of 12" »

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

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Defendants’ Fraudulent Mis-Charting Has Been Sufficiently Pled

In their Demurrer, Defendants suggest that Plaintiffs' "failed miserably" at identifying a single instance of mis-charting. In their FAC, Plaintiffs pled that Defendants engaged in false charting. Specifically, [o]n Sunday, April 13, 2008, the first nurses' entry was not until 2 p.m., a full 24 hours after a prior entry regarding Abbey's sleepiness and refusal of breakfast and lunch. By 4:45 p.m. on April 13, 2008, Abbey was noted as being lethargic and nonresponsive to verbal stimuli but responsive to painful stimuli with labored breathing ... During the time period of April 12 and April 13, 2008, there are a number of factual inconsistencies that clearly demonstrates blatant mis-charting by Defendants in an attempt to cover up and conceal their neglect. (FAC, paras. 36 - 37). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, Plaintiffs have informed Defendants of the exact time of the mis-charting and they have provided them with the basis of the mis-charting. However, since the Decedent died as a result of Defendants' neglect, and since Defendants are in possession of the original records (which have not yet been produced in full), Plaintiffs will need to conduct discovery to get the exact details of the false charting (i.e., once they have the opportunity to take Defendants' nurse and caregiver staff depositions.)

Continue reading "Sacramento Nursing Care Facility Covered Up Faulty Charts In Elder Abuse Case, Part 9 of 12" »

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

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(8) Defendants' nurses and caregivers were absolutely reckless in not receiving proper doctor's orders for Abbey on April 8, 2008, which is the time they were definitely on notice of Abbey's rapid and substantial weight loss and her inability to swallow (FAC, paras. 35, 42);

(9) Abbey's family insisted that she be taken to the hospital on April 13, 2008, where she was diagnosed with severe dehydration (FAC, para. 38);

(10) It was an absolute breach of the applicable regulations to have allowed Abbey to become so severely dehydrated, which neglect was reckless in that Defendants' exhibited a conscious disregard for the high probability that Abbey would suffer injury (FAC, para. 38 - 40); For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(11) Defendants' nursing staff and caregivers were aware that Abbey was not drinking and yet they did nothing (FAC, para. 40);

(12) Abbey was so severely dehydrated that she had a free water deficit of a whole gallon of water (or some sixteen, 8-ounce glasses), which fluids her body desperately needed but did not receive (FAC, paras. 39 - 40);

Continue reading "Dehydrated Sacramento Nursing Facility Patient Dies, Part 8 of 12" »

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

It is also worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(2) Defendants' Nurses Notes were charted inaccurately or the nurse completely failed to perform any charting whatsoever (both serious breaches of the applicable regulations since the absence of any charting is absolute and unequivocal evidence of neglect) (FAC, para. 29);

(3) Defendants' failed to order a speech therapist or speech language pathologist evaluation (an intentional violation of the regulations) for Abbey on or about April 8, 2008, when they knew that she was not swallowing and had lost considerable weight (inability to swallow and substantial weight loss are both changes of condition, both of which required notification to Abbey's family and physician so that these issues could be addressed) (FAC, para. 31); also, a nursing facility must ensure that a resident receives prescribed therapies, including physical therapy, occupational therapy, and speech therapy. 42 CFR § 483.45; For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(4) Abbey's inability to swallow and/or her delayed swallowing should have been critically important warning signs of dehydration, which Defendants recklessly ignored causing her swallowing problems to worsen (FAC, para. 32);

Continue reading "Neglect By Sacramento Nurses And Staff Result In Actionable Elder Abuse, Part 7 of 12" »