Articles Posted in Medical Malpractice


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In a recent California medical malpractice case, the California Court of Appeals dismissed a case after the plaintiff failed to comply with the requirements for notifying a public entity of a claim. The plaintiff claimed that a surgeon negligently performed a surgery to remove her gallbladder at a California hospital, and that she was permanently injured as a result. Evidently, the surgery was performed on February 17, 2017, and on January 31, 2018, she served the hospital with a notice of intent to file a medical malpractice claim. The hospital claimed the notice was filed late, and rejected the claim. On April 6, 2018, the plaintiff submitted an application for leave to present a late claim to the hospital, and on April 24, 2018, the plaintiff filed the medical malpractice claim in court.

Under Section 945.4 of the California Government Code, to pursue a claim against a public entity, a written claim must first be made with the entity. Under Section 911.2, in the case of a personal injury claim, the claim must be made within six months of the accrual of the cause of action. If the claim is not made within six months, the claimant can make a written application to the public entity for leave to present the claim, which must be made “within a reasonable time not to exceed one year” of the accrual of the cause of action. If the application for leave is denied by the public entity, the claimant can petition the court to hear the case.

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In a recent case, a California appellate court dismissed a plaintiff’s medical malpractice claim because the expert declaration failed to sufficiently support the plaintiff’s claim. According to the court’s opinion, the plaintiff fell and broke her wrist, and was later referred to an orthopedic surgeon. The orthopedic surgeon put the plaintiff’s wrist in a cast. The cast was removed a few weeks later, but because the plaintiff’s wrist looked slightly malformed, a splint was put on her wrist, and she underwent physical therapy. The plaintiff’s wrist did not improve, and she eventually had two surgical procedures performed by another surgeon to correct the problem.

The plaintiff sued the original orthopedic surgeon for medical malpractice based on the surgeon’s treatment of her broken wrist. She claimed that the surgeon was negligent in failing to perform or recommend surgery on her wrist, rather than placing a cast on her wrist, and that choosing to do so worsened the plaintiff’s injury. The issue before the court was whether the plaintiff provided sufficient evidence on the element of causation based on an expert declaration she submitted in support of her claim.

Expert Declarations in Medical Malpractice Cases

In California, if a plaintiff claim raises the issue of medical negligence, they must produce an expert declaration if the defendant provides an expert declaration. Otherwise, the plaintiff’s case will be dismissed at summary judgment. An expert can provide testimony if the testimony would assist the jury or judge, and if the subject is beyond common experience. To be considered, the testimony in an expert declaration must be admissible if admitted at trial.

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A woman and her four children sued two doctors and a medical group, alleging a cause of action for the wrongful death of the woman’s husband from medical malpractice during surgery. The doctors and their medical group filed a joint motion for summary judgment, with the doctors invoking the “Good Samaritan Law” (see Bus. & Prof., § 2396) and their group arguing that, absent liability on the doctors’ part, it could have no vicarious liability as their principal. The trial court granted the defendants’ motion. The family appealed, and California’s Second District Court of Appeal affirmed.On May 15, 2012, the husband underwent scheduled, elective shoulder surgery at a hospital in East Los Angeles. A doctor performed the surgery. At the same time that a doctor was performing his shoulder surgery, two other doctor was performing heart surgery in an adjacent operating room.

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A patient sued a dentist for dental malpractice, alleging that his negligence in performing a dental implant procedure permanently damaged a nerve in her jaw. He moved for summary judgment based on the one-year limitations period that Code of Civil Procedure section 340.5 establishes for all professional negligence claims against health care providers. The trial court granted the motion and entered judgment against the patient. The Fourth District Court of Appeal affirmed.Section 340.5’s one-year limitations period starts when the plaintiff discovers or reasonably should have discovered both her injury and that someone’s wrongdoing likely caused it. The patient testified she felt an electric shock as the dentist drilled the socket for her implant, and she immediately thought he had done something wrong. On the next day, she returned to his office to complain about the pain.

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Celebrity dentist Sherri L. Worth has been temporarily prohibited from practicing dentistry in California. The state dental board suspended Worth’s license this month, based on allegations that she put her patients in danger. On February 2, Worth’s attorney and Deputy Attorney General Shannon Brubaker signed a Stipulated Interim Suspension of License to “save time and expense.” Through this, Worth has waived the right to a hearing and is prohibited from practicing dentistry until the suspension is terminated.According to the Dental Board complaint, seven patients alleged that Worth committed incompetence, numerous acts of negligence and gross negligence, fraud, excessive treatment, and over-diagnosis. Examples include billing over $11,000 for two patients’ laser surgeries that were never performed, falsifying dental records, performing expensive restorations to already healthy teeth, and Photoshopping a digital x-ray to cover up two defective crowns. Worth’s actions, the board claims, demonstrated “a gross lack of clinical skill and diagnostic ability” and rendered her an immediate danger to patients.

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The California Court of Appeals for the First Appellate District recently reversed a lower court’s grant of summary judgment for a defendant doctor in a medical malpractice lawsuit, holding that the lower court incorrectly found the plaintiff’s expert was unqualified simply for being licensed outside the United States. Plaintiff Lidia C. Borrayo sued defendant Dr. G. James Avery, alleging he engaged in medical malpractice during the course of her treatment for a condition called thoracic outlet syndrome (TOS). Avery moved for summary judgment, which the trial court granted after sustaining his objection to her sole expert witness’ declaration. On appeal, the plaintiff argued that this expert witness — a physician licensed to practice medicine in Mexico — was qualified to provide an opinion about the standard of care to which the defendant was held.

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