Posted On: October 31, 2010

Sacramento Family Sues For Medical Malpractice, Part 3 of 5

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, UC Davis Medical Center, Mercy, or Sutter.

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

The purpose of Civil Code § 3333.1(a) has generally been viewed as an attempt to eliminate the so-called double recovery obtained by plaintiffs who have their medical expenses paid by their own health insurance and still obtain damages for such expenses from defendant tortfeasors. Barme v. Wood (1984) 37 Cal.3d 174, fn.5. Subsection (a) overrides the collateral source rule to a considerable extent in medical malpractice cases, allowing a health care provider to introduce evidence of benefits payable to the plaintiff from the following collateral sources: private health, sickness, accident, or disability insurance, state disability insurance (SDI), workers' compensation, Social Security survivor's insurance, Social Security disability insurance (SSDI), or the Supplemental Security Income (SSI) program.

When a defendant chooses to introduce such collateral source evidence under Section 3333.1(a), the plaintiff may introduce evidence of the amounts she has paid, in insurance premiums for example, to secure those collateral source benefits. For more information you are welcome to contact , Moseley Collins.

The collateral source provision is one of the provisions of MICRA, which was intended to reduce the cost of medical malpractice insurance.

Continue reading " Sacramento Family Sues For Medical Malpractice, Part 3 of 5 " »

Posted On: October 27, 2010

Medical Malpractice By Sacramento Physicians Causes Veteran's Death, Part 2 of 5

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, UC Davis Medical Center, Mercy, or Sutter.

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

Facts

Ms. Hill is receiving at least $1,158/month in the form of a VA death benefit, $288/month as a partial retirement payment based on the decedent's years of service/date of death, and an additional $60/month as a "family survivor" benefit. Plaintiff seeks economic damages including lost contribution based on decedent's earnings and projected work life expectancy.

For more information you are welcome to contact , Moseley Collins.

Argument

The Collateral Source Rule

Under the traditional collateral source rule, a jury, in calculating a plaintiff's damages in a tort action, does not take into consideration benefits, such as medical insurance or disability payments, which the plaintiff has received from sources other than the defendant, i.e., collateral sources, to cover losses resulting from the injury. California Civil Code § 3333.1 alters this rule in medical malpractice cases and in wrongful death cases brought by the heirs of medical malpractice victims. Civil Code § 3333.1(a) provides an exception to the collateral source rule in medical malpractice cases. That section states that in the event the defendant so elects, in an action for a personal injury against a healthcare provider based upon professional negligence, she may introduce evidence of:

Continue reading " Medical Malpractice By Sacramento Physicians Causes Veteran's Death, Part 2 of 5 " »

Posted On: October 24, 2010

Sacramento Veteran Suffers Wrongful Death By Negligent Doctors, Part 1 of 5

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, UC Davis Medical Center, Mercy, or Sutter.

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

Defendant Medical Center Foundation Hospitals, Inc.'s Opposition to Plaintiff's Motions in Limine

GENERAL OBJECTIONS

Defendants object to the format of Plaintiffs motions to the extent that they fail to comply with any relevant requirements indicated in the Evidence Code, Code of Civil Procedure and the Rules of Court.

OPPOSITION TO PLAINTIFF'S MOTIONS IN LIMINE NO. 2 AND NO. 21 REGARDING COLLATERAL SOURCE BENEFITS

Introduction

Plaintiff seeks to exclude at trial all reference to the fact that any death benefit life insurance, Department of Veterans' Affairs benefits, or other benefits were paid (or will be paid in the future) to Plaintiff. (Plaintiff's Motion in Limine No. 2.) Plaintiff also seeks to exclude at trial all references regarding whether David Hill or Stella Hill, or both, received any compensation, insurance payment, or benefit from a collateral source as to the payment of medical, hospital, health care provider expenses. (Plaintiffs Motion in Limine No. 21.) For more information you are welcome to contact , Moseley Collins.

A governing principle under MICRA is to disallow plaintiff from recovering amounts for medical expenses in excess of the amount paid or incurred. The reason for the collateral source rule is that such evidence gives the jury a more complete picture of the extent of damages and reimbursement already provided to the plaintiff.

Continue reading " Sacramento Veteran Suffers Wrongful Death By Negligent Doctors, Part 1 of 5 " »

Posted On: October 21, 2010

Sacramento Hospital's Nursing Staff Part Of Malpractice Suit, Part 9 of 9

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

It is also 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.

The definitive criteria in guidance of the trial court's determination of the qualifications of an expert witness are recognized in Sinz v. Owens, supra, 33 Cal.2d 749, at page 753, 205 P.2d at page 5, to rest primarily on "occupational experience," as stated: The proof of that standard (the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances) 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. 2 Wigmore on Evidence 3d Ed., § 556, p. 635.

He must have had basic educational and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the that is of controlling importance in determining competency of the expert to testify to the degree of care against which the treatment given is to be measured.'' (Emphasis added.) Pearce v. Linde (1952) 113 Cal.App.2d 627, 630-631. For more information you are welcome to contact , Moseley Collins.

There seems little reasonable basis for Defendant Smith's position that he intends to elicit expert opinion testimony from Dr. Lee clearly concerning plastic surgery or nursing.

3) The Law of the Case is that Experts May Not Testify to any Opinions they did not Testify to at their Depositions

Continue reading " Sacramento Hospital's Nursing Staff Part Of Malpractice Suit, Part 9 of 9 " »

Posted On: October 18, 2010

Sacramento Hospital's Doctors Commit Medical Malpractice, Part 8 of 9

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

It is also 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.

The standard of care in a requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412, 175 Cal.Rptr. 365.)

It is also established that a nurse's conduct must not be measured by the standard of care required of a physician or surgeon, but by that of other nurses in the same or similar locality and under similar circumstances. (See Fein v. Permanente Medical Group (1985) 38 CalJd 137, 150-151, 211 Cal.Rptr. 368, 695 P.2d 665; Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 341, 160 Cal.Rptr. 246.) Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215. For more information you are welcome to contact , Moseley Collins.

A medical expert is not qualified as a witness unless it is shown that he is familiar with the standards required of physicians under similar circumstances. Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 8 A.L.R.2d 757; Moore v. Belt, 34 Cal.2d 525, 532, 212 P.2d 509.

Continue reading " Sacramento Hospital's Doctors Commit Medical Malpractice, Part 8 of 9 " »

Posted On: October 16, 2010

Sacramento Girl Disfigured By Plastic Surgeon's Malpractice, Part 7 of 9

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

It is also 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.

In the present case, the standard of care for the specialty fields of plastic surgeons and nursing, as well as whether Dr. Goldberg and the nursing staff complied with same, are matters exclusively for the province of expert testimony (unless the doctrine of res ipsa loquitur applies).

A physician's standard of care is the key issue in a and can only be proved by expert testimony unless the circumstances are such that the required conduct is within the layperson's common knowledge. (Landeros v. Flood (1976) 17 Cal.3d 399, 410, 131 Cal.Rptr. 69, 551 P.2d 389; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 CaUth 992, 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142.) For more information you are welcome to contact , Moseley Collins.

The common knowledge exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 CaUth at p. 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142, fn. omitted.) Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800-801.

Continue reading " Sacramento Girl Disfigured By Plastic Surgeon's Malpractice, Part 7 of 9 " »

Posted On: October 14, 2010

Plastic Surgeon's Negligence Results In Sacramento Malpractice Suit, Part 6 of 9

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

It is also worth noting that situations similar to those described in this 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.

California Evidence Code section 720 further defines the necessary foundational requirement before a witness will be allowed to testify as an expert in a particular area:

(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

(b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony. (Calif. Evid. Code section 720.)

As discussed in greater detail below, there can be no doubt that Dr. Lee is not a qualified expert in plastic surgery or nursing. He has no special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Clearly, if Plaintiffs were proposing that Dr. Lee should be permitted to testify regarding the standard of care for plastic surgeons and nurses, and whether this was complied with in the present case, both Defendant Smith and the Court would not allow it. For more information you are welcome to contact , Moseley Collins.

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.

Continue reading " Plastic Surgeon's Negligence Results In Sacramento Malpractice Suit, Part 6 of 9 " »

Posted On: October 12, 2010

Medical Experts Battle Over Malpractice Action In Sacramento, Part 5 of 9

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

It is also worth noting that situations similar to those described in this 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.

Allowing Dr. Lee to testify regarding the standard of care for the plastic surgeon or the hospital would constitute clear reversible error as he is not a qualified surgical or hospital standard of care expert.

Here, it is readily apparent that regardless of what opinions Dr. Lee may have expressed in his declaration (in a matter which was taken off calendar and never truly even addressed), it would be clearly improper to knowingly elicit expert opinion testimony from Dr. Lee in specialty medical fields in which he clearly is not a qualified expert.

The California Evidence Code and cases clearly provide for a mechanism to exclude such an improper opinion, and further make it clear that Dr. Lee should not be permitted to opine at trial in areas where he is not a qualified expert. For more information you are welcome to contact , Moseley Collins.

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

Continue reading " Medical Experts Battle Over Malpractice Action In Sacramento, Part 5 of 9 " »

Posted On: October 9, 2010

Malpractice At Sacramento Hospital Causes Young Girl's Injury, Part 4 of 9

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

It is also 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.

DISCUSSION

1) Allowing Dr. Lee to Testify regarding the Standards of Care for the plastic surgeon or the hospital, would violate the holdings of Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919; Jones v. Moore (2000) 80 Cal.App.4th 557; and Bonds v. Ray (1999) 20 Cal.4th 140.

In Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919, the Fifth District held that where the plaintiff sought to elicit causation opinion testimony of an expert at trial, where that expert was not designated to give expert opinion testimony regarding causation, and where that expert had said he had no opinion regarding causation at three prior depositions, exclusion of this new area of testimony is required. For more information you are welcome to contact , Moseley Collins.

Kennemur was followed by the legal malpractice case of Jones v. Moore (2000) 80 Cal.App.4th 557, and the of Bonds v. Roy (1999) 20 Cal.4th 140. In Jones, the Plaintiff's expert testified at deposition he had an opinion about whether the defendant complied with the standard of care in negotiating a divorce decree, but not in other areas. At trial, the trial court, as in the present case, excluded any opinions of the expert outside the opinions testified to at his deposition. The Second District held that under California law, the expert was limited to those areas he had testified to at his deposition. Id at p. 564-565.


.

Continue reading " Malpractice At Sacramento Hospital Causes Young Girl's Injury, Part 4 of 9 " »

Posted On: October 7, 2010

Doctors At Sacramento Hospital Sued For Malpractice, Part 3 of 9

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

It is also worth noting that situations similar to those described in this 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.

Despite the clear lack of expertise of Dr. Lee regarding the standard of care for plastic surgery and nursing, the clear designation of Dr. Lee, Dr. Lee's deposition testimony that he had no such opinions, and the fact that they are acting in contradiction to their own motion and the Order of the Court, Defendant Smith now wishes to call Dr. Lee at trial and elicit opinions regarding the standard of care for the surgeon and hospital and whether same were violated.

Counsel for Defendant Smith cites to a declaration filed early in the action, in which Dr. Lee acknowledges he has no expertise regarding the standard of care for surgeons and hospital staff but nonetheless volunteers some opinions regarding a few surgeon issues and nursing matters. This declaration was submitted only to the Court in a law and motion matter, and not to a jury, and since Defendant Smith withdrew their motion for summary judgment, the matter was never ruled upon. For more information you are welcome to contact , Moseley Collins.

Whether Dr. Lee expressed any opinions in his declaration regarding the plastic surgeon's and nurses' standard of care, is a moot point. Clearly, he is not qualified to opine in these areas and it would be a blatant violation of California Evidence Code sections 720 and 801 to allow or to force Dr. Lee to testify regarding topics about which he is not a qualified expert.

Continue reading " Doctors At Sacramento Hospital Sued For Malpractice, Part 3 of 9 " »

Posted On: October 4, 2010

Sacramento Surgeons Sued For Malpractice, Part 2 of 9

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

It is also 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.

On March 27, 2008, Dr. Lee was designated by Plaintiff Ana Black to testify regarding anesthesiology issues, including the standard of care and causation issues pertaining to anesthesiology. Nowhere was there any designation/declaration that Dr. Lee would testify regarding the , or whether the plastic surgeon or nurses in the present case complied with the applicable standard of care. The obvious reason was that Dr. Lee is an anesthesiologist, not a plastic surgeon or a nurse, and he is not qualified to render an opinion in these other fields of medicine.

Likewise, Defendant Smith's expert, Dr. Greene has similarly stated that he is neither an expert regarding the standard of care for surgeons or nursing, and that he does not intend to give any opinions in these areas. For more information you are welcome to contact , Moseley Collins.

On April 16, 2008, Dr. Lee was deposed, and not only once, but twice, testified that he would not be giving testimony regarding the standard of care of the surgeon or the hospital.

Q. Do you intend to give testimony as to the standard of care as it applies to Dr. Goldberg, the plastic surgeon?
A. No.

Q. Do you intend to give standard of care testimony with respect to the hospital?
A. No.

Continue reading " Sacramento Surgeons Sued For Malpractice, Part 2 of 9 " »

Posted On: October 2, 2010

Sacramento Girl's Family Files Medical Malpractice Action, 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 case and its proceedings.)

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

Plaintiff Ana Black's Memorandum of Points and Authorities in Opposition to Defendant Smith's Intent to Elicit Improper Opinion Testimony from Richard Lee, M.D.

Plaintiff Ana Black, a minor, by and through her Guardian Ad Litem, Madeline Black, respectfully submits the following memorandum of points and authorities in opposition to Defendant Smith's expressed intent to elicit expert opinions from Plaintiff's expert, anesthesiologist Richard Lee, M.D., regarding the applicable standard of care for plastic surgeon Donald Goldberg, M.D., and the nursing staff of Memorial Hospital (hereinafter "MH"), and to opine regarding whether same complied with their applicable standard of care. For more information you are welcome to contact , Moseley Collins.

INTRODUCTION

Plaintiff's expert, Richard Lee, M.D., is a highly qualified anesthesiologist. He is Board Certified in anesthesiology. He has a long history in this field, and the entirety of his practice of medicine has been limited to anesthesiology and pain medicine.

Dr. Lee is not a plastic surgeon or a nurse; he has never been board certified in either of these two fields. He has no education, residency or internship in these fields; he has never received any training in these fields, and has never worked in either field.

Continue reading " Sacramento Girl's Family Files Medical Malpractice Action, Part 1 of 9 " »