San Jose Medical Malpractice Lawyer Blog

San Jose Woman Improperly Diagnosed Results in Terminal Cancer, Part 1 of 2

Wed, 01 Feb 2012 07:20:38 -0800

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 San Jose area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor 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 lawsuit and its proceedings.)

CASE INFORMATION
According to Plaintiff: Plaintiff, currently a 42-year-old accountant at a bank, underwent a mammogram on June 30, 2006 read by defendant radiologist. The study was interpreted as a BI-RADS 1, within normal limits. She was instructed to return for an additional screening mammogram one year later, but did not.

Plaintiff next underwent a screening mammogram on April 5, 2008. That study was read as showing a density in the right upper breast on the MLO view only. The report stated that the density had increased in size from the 2007 study. The study was read as BIRADS 0, additional studies needed. Plaintiff then underwent a diagnostic mammogram and ultrasound on April 20, 2008. These studies were interpreted by defendant as benign, BI-RADS III, follow up in four months requested.

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

San Jose Man Sues Hospital in Medical Malpractice Suit, Part 3 of 3

Wed, 25 Jan 2012 07:15:23 -0800

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

The defense denied liability, asserting that the stroke was related to Serreno's diabetes, rather than the injection of Phenergan into the artery. Counsel also contended that the line was not arterially placed, but properly placed in the vein.

Following the injury, Serreno was placed on disability and claimed that he will likely be unable to engage in employment that requires standing, walking or balancing. He alleged that the injury had a substantial effect on his career as a security guard and police officer, and that he is now limited to potential desk jobs. He further claimed that even a desk job would be difficult, due to the extremely limited use of his left, non-dominant arm.

Serreno claimed past lost earnings of $113,862, and future lost earnings of $1,653,031, based on a loss of earning capacity of $50,320 a year. He further sought pain and suffering damages of $250,000 (capped by MICRA). He did not seek medical costs.

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

San Jose Lawsuit Against Hospital for Negligent Practice, Part 2 of 3

Wed, 11 Jan 2012 07:13:07 -0800

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

Immediately after injection, Serreno developed difficulty breathing, had a stroke and was then intubated. The central line was then placed on a pressure transducer, which indicated that it was arterially placed. The central line was then discontinued, and an MRI revealed that Serreno had a serious brain injury.

Serreno sued the County, which controlled ABC Regional and its county employees, accusing Emmerson of medical malpractice, specifically negligent injection.

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

San Jose Medical Malpractice Case For Man With Brain Injury, Part 1 of 3

Wed, 04 Jan 2012 07:07:47 -0800

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

INJURIES: Serreno experienced a right watershed infarct in his brain with a distribution involving the middle cerebral artery and left parietal, resulting in hemiplegia. The condition resulted in left-side bodily weakness and permanent left-side brain damage.

Facts:
On March 21, 2009, plaintiff, Bob Serreno, 33, an unemployed security guard, went to ABC Regional Medical Center in Sacramento with complaints of abdominal pain. He was admitted into the intensive care unit after being diagnosed with diabetic ketoacidosis. After having two different IVs inserted in his arm, a nurse paged first-year resident John Emmerson to place a central venous catheter in Serreno. Emmerson responded roughly one hour and 45 minutes later, and attempted to insert the central line. Emmerson was unable to do so, and opted to place the line in Serreno's internal jugular vein, and believed he succeeded after checking for pulsatility and the color of the blood in the line.

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

San Jose Woman Must Battle Her Surgeon In Malpractice Lawsuit, Part 8 of 8

Mon, 31 Jan 2011 06:58:25 -0800

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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor 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 COURT'S POWER

California Code of Civil Procedure Section 437c gives this court the power to grant this motion upon showing that there are no triable issues of material fact.

The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107. It is pointless to declare in the abstract that summary judgment is a disfavored remedy. Reader's Digest Association v. Superior Court (1984) 37 Cal.3d 244, 252. On summary judgment, the moving party's burden is more properly one of persuasion rather than of proof, since he must persuade the court there is no material fact for a reasonable trier of fact to find, and not prove any such fact to the satisfaction of the court itself as if it were sitting as the trier of fact. Molko, supra at 372-374.

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

California's highest court clarified the law that courts must apply in ruling on motions for summary judgment, bringing this state's law closer to its federal counterpart in order to liberalize the granting of such motions. Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855, 859 (emphasis added). The Supreme Court made clear that a defendant moving for summary judgment is no longer required to conclusively negate an element of the plaintiffs cause of action. Id. at p. 864. All the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action. Id. The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. Id. at p. 865.

San Jose Doctors Defend Malpractice Suit By Claiming Plaintiff Had Prior Injuries, Part 7 of 8

Thu, 27 Jan 2011 06:56:06 -0800

(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.)

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

PLAINTIFF CANNOT CAUSALLY RELATE DEFENDANT'S CONDUCT TO ANY
PURPORTED DAMAGES OR INJURIES

A medical malpractice plaintiff must show that defendant caused his/her injury. Causation provides the essential link between the negligent act and the damage suffered by the party seeking recovery. The Court of Appeal has held that "a plaintiff, in order to establish liability, must prove more than abstract negligence unconnected to the injury." Noble v. Los Angeles Dodgers (1955) 168 Cal.App.3d 912, 916. It is plaintiff's burden to plead and prove the element of causation to support his claim for damages. In Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, the Court observed:

"The law is well settled in a personal injury action, causation must be proved within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is not sufficient to establish a prima facie case." (Citations omitted.) That there is a distinction between a reasonable "probability" and a "possibility" needs little discussion. There can be many possible "causes," indeed, an indefinite number of circumstances which can produce injury or disease.

San Jose Woman Alleges Surgeon Failed To Meet Malpractice Standard Of Care, Part 6 of 8

Sun, 23 Jan 2011 06:55:03 -0800

(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.)

DEFENDANT'S CONTENTIONS

The care and treatment provided by Dr. Smith at all times complied with the applicable standard of care in the community and there was nothing that Dr. Smith did or failed to do that caused, contributed to, or was a substantial factor in any injury alleged by plaintiff. The surgeries by Dr. Smith, follow up care, recommendations and treatment were appropriate and within the standard of care. Plaintiff had pre-existing complaints including complaints of the left upper extremity due to prior surgeries. Additionally, plaintiff was totally disabled prior to the ATV accident on December 22, 2008.

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

Defendant further contends that plaintiff's tests indicate that there is no objective cause for her symptoms. However, assuming that she does have complex regional pain syndrome, it was not caused, contributed to or aggravated by anything which Dr. Smith did or failed to do. This condition can occur with any type of trauma, including the trauma sustained by plaintiff on December 22, 2008, and it is a condition which occurs in the absence of negligence.

THIS MOVING DEFENDANT, OWEN SMITH, M.D, MET
THE APPLICABLE STANDARD OF CARE

San Jose Surgeons Sued for Malpractice After Patient's Beach Mishap, Part 5 of 8

Fri, 21 Jan 2011 06:54:11 -0800

(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 subsequently presented to Joe Ross, M.D., at the Center for Rehabilitation Medicine apparently as a referral by attorney Reginald Hill. Plaintiff reported to Dr. Ross that following the surgery with Dr. Smith she had good sensation throughout the fingers with good motion of the fingers. When Dr. Ross saw plaintiff on July 22, 2004, he noted an assessment of complex regional pain syndrome, left wrist and hand; traumatic left median and ulnar neuropathy and fracture, left distal radius with subsequent operative reduction and pinning. It was his opinion that plaintiff sustained a second injury to the left upper extremity on January 14, 2004, by an approximate 4 hour period where the left wrist was in a forced flexed position. He noted that her injury was preventing her from returning to work as a physical therapist.

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

A nerve conduction study which had been done on July 5, 2004, by Dr. Jones showed very mild delay in distal latency seen on left side . Thereafter, on October 14, 2004, Dr. Ross noted an assessment of post traumatic neuropathic pain, hypersensitivity, left wrist, hand and fingers and he again recommended that the patient follow through with a complete electrodiagnostic study of the left upper extremity.

EMG and nerve conduction studies were done on November 16, 2004, by Dr. Miles at Northern Neuro Center. Dr. Miles noted that motor and sensory nerve conduction studies revealed normal distal latencies, amplitudes and conduction velocities for left median and ulnar nerves. There was no significant side to side difference in sensory nerve study that was noted.

San Jose Doctor Sued For Malpractice After Woman's ATV Accident, Part 4 of 8

Wed, 19 Jan 2011 06:52:58 -0800

(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 10, 2004, Dr. Smith noted that plaintiff had 80% of normal range of motion and was to continue with therapy and return after seven (7) weeks. Thereafter, on May 19, 2004, plaintiff complained of tingling along a branch of the radial nerve. She had full pro-supination. X-rays showed that she was healed and there was mild articular irregularity. The radiology report noted there to be diffuse osteopenia and mild deformity of the lateral aspect of the distal radius, likely related to the known fracture. Dr. Smith had an extensive discussion with plaintiff regarding her prognosis and the fact that she could follow up with him as needed. He also discussed the need for aggressive therapy. He noted "patient non-compliant with OT protocol."

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

Plaintiff returned to plastic surgeon, Dr. Lee on March 4, 2004, at which time she complained of left breast pain. At that time she stated that because her systemic symptoms had improved, she had become more active and got herself into shape. She was noted to be teaching water aerobics among other physical activities. She had lost weight and increased her activity and as a result of the weight loss she began noticing rippling and wrinkling of both breasts.

Wrist Surgery On San Jose Woman Leads To Medical Malpractice Suit, Part 3 of 8

Mon, 17 Jan 2011 06:52:01 -0800

(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. Smith on December 29, 2008, approximately seven (7) days following the accident. X-rays showed a fractured distal radius which was displaced. Dr. Smith noted that the patient previously had lots of pain in the left arm related to silicone implants. The plan was to perform surgery to repair the fractured distal radius, left wrist. Thereafter, on December 31, 2008, Dr. Smith performed a closed reduction and percutaneous K-wire fixation of plaintiff's fractured left wrist. It was noted that plaintiff had an intra-articular radial styloid fracture and volar avulsion fracture of the distal radius with moderate displacement. Plaintiff was made aware of risks, benefits and complications and informed consent was obtained. Prophylactic IV antibiotics were given at the time of surgery. A soft bandage and forearm splint was applied. Plaintiff tolerated the procedure well.

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

On January 7, 2004, plaintiff returned to Dr. Smith at which time she was one week postop and a referral was made to The Hand Center for removal of the brace and clamshell splinting, physical therapy and pin care education. TENS treatment for pain was given and a clamshell from Spica was fabricated. Range of motion exercises were taught by the therapist. It was noted that since the breast reconstruction in September 2002, she had had pain, burning and weakness in the left arm and she had been unable to grasp with force.

Botched Hand Surgery Leads To San Jose Medical Malpractice Action, Part 2 of 8

Fri, 14 Jan 2011 06:51:04 -0800

(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.)

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiff fractured her left wrist in an ATV accident on December 22, 2008. She claims that moving defendant, Dr. Smith fell below the standard of care in his care and treatment of plaintiff and that he caused or contributed to her alleged injuries.

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

STATEMENT OF FACTS

Plaintiff, Anna Brown's prior medical records reflect that she had pre-existing symptoms and complaints of the left upper extremity following a skydiving accident and breast reconstructive surgery. In fact, plaintiff was apparently totally disabled and on disability.

On or about December 22, 2008, plaintiff was involved in an ATV accident at which time she fractured the left distal radius. She was initially treated at Universal Hospital and instructed to follow up with an orthopedic specialist in the Sacramento area. Plaintiff presented to the Orthopedic Institute the following day on December 23, 2008, at which time she was evaluated by Donald Ward, M.D. During that visit, plaintiff related that on December 22, 2008, while at the beach and riding an ATV quad motorcycle, she tried to use the brake but her left hand could not grip due to prior nerve damage and breast reconstruction.

San Jose Woman Files Malpractice Lawsuit Against Local Surgeon, Part 1 of 8

Mon, 10 Jan 2011 06:47:54 -0800

(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.)

Notice of Motion and Motion for Summary Judgment By Defendant, Owen Smith, M.D.; and Declaration of Ben Lee, M.D.

Defendant, Owen Smith, M.D, will move this Court for an order granting Summary Judgment in favor of defendant, Owen Smith, M.D. and against plaintiff, Anna Brown, in this medical malpractice action.

This Motion is made pursuant to California Code of Civil Procedure Section 437c and is based upon the grounds that Plaintiff's Complaint has no merit and there is no triable issue as to any material fact warranting trial with respect thereto because this moving defendant met the standard of care and did not cause or contribute to the injuries claimed by Plaintiff.

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

Pursuant to Evidence Code Section 452, moving defendants request judicial notice of all pleadings and records in the Court file in this action.

Negligent San Jose Hospital Fights Family's Wrongful Death Lawsuit, Part 6 of 6

Wed, 01 Sep 2010 07:49:57 -0800

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 wrongful death case and its proceedings.)

It is worth noting that situations similar to those described in this medical negligence action could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Plaintiff Must Join All Persons Necessary for Just Adjudication

A complaint shall state the names, if known to the pleader, of any persons who, by their absence, may leave the defendant subject to risk of incurring multiple or inconsistent obligations. If such persons are not joined as parties, the pleader must state in the complaint why they are not joined. C.C.P. §389(a) & (c).

If any person is allied in interest with plaintiff, but refuses to join as a co-plaintiff, he or she may be sued as a defendant. In such cases, the complaint must state the reasons why such person was so joined. C.C.P. §382. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff alleges that he is the "surviving heirs (sic) at law" of decedent. It is unclear whether there are other persons with standing to bring suit in this wrongful death action.

San Jose Healthcare Facility's Negligence Results In Patient's Wrongful Death, Part 5 of 6

Tue, 24 Aug 2010 07:22:07 -0800

(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, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

Plaintiff's Complaint is Uncertain Because There Are No Facts to Support a Cause of Action for Unfair Business Practices

Business & Professions Code §17200 (aka Unfair Competition Law or UCL ) prohibits unfair competition, which includes any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with section 17500) of Part 3 of Division 7 of the Business and Professions Code. An unfair business act occurs if it offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. To plead Business & Professions Code §17200, plaintiff must state with reasonable particularity facts to support the statutory elements of the violation. Khoury v. Malv's of California, Inc. (1993) 14 Cal.App.4th 612.

Here, plaintiff's complaint, at page 5, sets forth a claim titled Unfair Business Practices and alleges that plaintiff's allegations as set forth before and general allegations below constitute the facts in support of this claim. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

San Jose Woman's Son Files Malpractice Action Against Hospital, Part 4 of 6

Mon, 16 Aug 2010 07:11:12 -0800

(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.)

Plaintiff's Complaint for Professional Negligence is Barred by the Statute of Limitations.

A complaint is subject to a demurrer under Code of Civil Procedure § 430.10, subparagraph (e), if the facts alleged in the complaint and matters of which the court is entitled to take judicial notice show the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995; Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

The statute of limitations for medical malpractice claims is set out in Code of Civil Procedure §340.5. It provides, in pertinent part:

In an action for injury or death by a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through use of reasonable diligence should have discovered, the injury, whichever occurs first. C.C.P. §340.5. (emphasis added)