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daddy needs help

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droopi2728

Guest
I live in california, my father was admitted to the hospital on june 3 2004 and was hit by a car while riding his bike, they proceeded to stablize him, but the question I have is this he was not paralyzed when he had his first set of x-rays now he is they ( the doctors and nurses) are telling me they must have missed the two vetibrae clinging together but they never once mention he was paralyzed until two days ago now if they missed this big thing how can i prove malpractice? because he moved his body up until 3 weeks ago. the nurses were moving him on his sides alot because the doctors requested it i am real worried it happened at this hospital what steps do i need to take if any to prove else or otherwise? :( how do i even aquire his x rays?
 


Shay-Pari'e

Senior Member
You should really slow down a little bit. (Deep Breath). There is a person who posts here by the name of "Elliance" I believe that can give you some guidence on this issue. I might of spelled her name wrong, but she know's her stuff.
 
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ellencee

Senior Member
droopi2728
daddy needs help
May I just say, AMEN.

Now, on to your post--

If your father was hit by a car while he was riding a bike, chances are he should have been on neuro-protective status while in the hospital. How long this status should have lasted is dependent on his neuro status and whether or not he had any deficit or any changes. You don't mention his status until "two days ago" and do not state why he has been in the hospital for three weeks.

The initial x-rays should be available as should subsequent x-rays. A radiologist should have read the x-rays initially, or if one is not on duty at all times in this facility, then a radiologist must read the x-rays as soon as possible (normal hours). If the vertebal injury and, or spinal cord compression/injury was visible on the x-ray and was not detected and diagnosed, then the radiologist may have been negligent. If the ER doctor or the treating doctor 'read' the x-ray initially and the injury was apparent, then that doctor may have been negligent. In the latter instance, spinal injury precautions should have been instituted and maintained until such time as the x-rays were read by a radiologist and your father was seen by the appropriate MD (such as a neurologist and, or orthopedic surgeon).

It raises my suspicions as to why the hospital waited three weeks to tell anyone that your father is paralysed. It suggests a cover-up attempt.

If your father is mentally competent and not under the influence of narcotic medication or medication that would affect his mental competency, your father can verbally instruct the staff to allow you access to all of his records, etc. or he can put it in writing. The patient representative should be able to help your father do this.

I suggest that you or your father call a medmal attorney in your area and ask the attorney to consult with you and your father at the hospital (if your father is still in the hospital). From your description that the doctors and nurses are stating they "missed' the injury, I infer that they have admitted negligence. It would not be impossible to miss an injury on x-ray; but, in this case, it seems unlikely that a prudent x-ray interpretation would overlook such and it seems unreasonable to fail to protect the spinal cord from injury or further injury.

EC
 

rmet4nzkx

Senior Member
I agree you need to consult an attorney because you have two major issues, the actual accident with the responsibility to the driver of the car and possible malpractice. How old is your father, was he on medications prior to his accident, what was his general health, have you been there to see him? I ask this because you report that they didn't mention the most recent injuries until 3 days ago with an injury more than 2 months ago, I would think that you would know if he were able to move in that time. Is your father in a coma? Who is responsible for him if he is not able to direct his care?
 
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RandallFabiano

Guest
Okay... First above all this should help you out

When examining this from a legal perspective, I would suggest you request in writing a Notice to Release records here is the following suggested format

NOTICE TO RELEASE MEDICAL RECORDS

Pursuant to section §123100 Of the Health and Safety Code of the State of California, this notice is being sent to request copies of the Medical Records for (Name of Patient) on (Date of Hospitalization) at (Name of Hospital) being stored or housed at (address of hospital). (State your authority to request the records)

Scope of Access Requested
All documentation (Enter Hospital) and / or (Doctor's Name), including the other physician's original patient records, now has to the date of this notice with respect to the patients' confidential Medical Records pertaining to the patient, including but not limited to medical charts, lab results, hospital records, consent documents, financial documents,x-rays and information on who has viewed the documents, and or where such information has been viewed, sent to, or divulged by electronic means. If such records do not exist or are missing please indicate in writing as to the reasons why such documentation is unavailable or missing.

Time Sensitive
Statutory provisions entail that (Insert Hospital) to have ready all documents requested, no later than (5) Five days from the date of this notice to release the original records.

Patient Summary
Due to the nature of the request for medical records, which shall be withheld at this time, a physician summary will not suffice. If summary is presented it may force the requestors to get a court order to release the original documents that are so requested.

Costs of Copies
It is agreed that such documentation as so requested above will include reasonable clerical fees which the patient will agree to pay.

Additional Request to Limit Access
After such records, this request shall also serve as notice to limit access to such records and access shall be limited and not be disclosed without the written permission of the patient.

I duly swear that I am the person below under penalty of perjury signed this, the _______day of _________ in the city of ____________, in the State of _________, in the United States. I swear by penalty of perjury that I have the rights to access such files.

__________________________ ____________
(Relationship) Date
This is a general format, just fill in the information as it applies to you... Second, Mal-practice requeires that a standard of care has been breached. Here is the BAJI essentials that you must look at when it comes to Mal-practice... If you feel like you answer this as true then contact an attorney today because of there is limitations of time and filing procedure.

Essential Factual Elements
In medical malpractice or professional negligence cases.
Sources and Authority
c From a theoretical standpoint, “medical negligence” is still considered
“negligence”: “With respect to professionals, their specialized education
and training do not serve to impose an increased duty of care but
rather are considered additional ‘circumstances’ relevant to an overall
assessment of what constitutes ‘ordinary prudence’ in a particular
situation.” (Flowers v. Torrance Memorial Hospital Medical Center
(1994) 8 Cal.4th 992, 997–998, [35 Cal.Rptr.2d 685, 884 P.2d 142].)
Accordingly, “ince the standard of care remains constant in terms of
‘ordinary prudence,’ it is clear that denominating a cause of action as
one for ‘professional negligence’ does not transmute its underlying
character. For substantive purposes, it merely serves to establish the
basis by which ‘ordinary prudence’ will be calculated and the
defendant’s conduct evaluated.” (Flowers, supra, 8 Cal.4th at p. 998.)
c The distinction between “professional” as opposed to “ordinary”
negligence is relevant in relation to certain statutory provisions such as
the statute of limitations and Medical Injury Compensation Reform Act
(MICRA). (Flowers, supra, at pp. 998–999.)
c Code of Civil Procedure section 340.5, which sets the statute of
limitations for medical malpractice cases based on professional
negligence, and Civil Code sections 3333.1 and 3333.2 (MICRA)
define “professional negligence” as “a negligent act or omission to act
by a health care provider in the rendering of professional services,
which act or omission is the proximate cause of a personal injury or
wrongful death, provided that such services are within the scope of
services for which the provider is licensed and which are not within
any restriction imposed by the licensing agency or licensed hospital.”
The statutory definition of “professional negligence” “focuses on
whether the negligence occurs in the rendering of professional services,
rather than whether a high or low level of skill is required. [Citation.]”
(Bellamy v. Appellate Dep’t of the Superior Court (1996) 50
Cal.App.4th 797, 807 [57 Cal.Rptr.2d 894.)
c A formal physician-patient relationship is not always a prerequisite to
bringing a malpractice action: “[E]ven in the absence of a physicianpatient
relationship, a physician has liability to an examinee for
negligence or professional malpractice for injuries incurred during the
examination itself.” (Mero v. Sadoff (1995) 31 Cal.App.4th 1466,
1478.)
 
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RandallFabiano

Guest
Standards of Care

501. Standard of Care for Health Care Professionals
A [insert type of medical practitioner] is negligent if [he/she] fails
to exercise the level of skill, knowledge, and care in diagnosis
and treatment that other reasonably careful [insert type of medical
practitioners] would possess and use in similar circumstances.
[When you are deciding whether [name of defendant] was
negligent, you must base your decision only on the testimony of
the expert witnesses [including [name of defendant]] who have
testified in this case.]
Directions for Use
This instruction is intended to apply to nonspecialist physicians, surgeons,
and dentists. The standards of care for nurses, specialists, and hospitals are
addressed in separate instructions.
The second paragraph should be used except in cases where the court
determines that expert testimony is not necessary to establish the standard
of care.
See Instructions 219–221 on evaluating the credibility of expert witnesses.
Sources and Authority
c “With unimportant variations in phrasing, we have consistently held
that a physician is required to possess and exercise, in both diagnosis
and treatment, that reasonable degree of knowledge and skill which is
ordinarily possessed and exercised by other members of his profession
in similar circumstances.” (Landeros v. Flood (1976) 17 Cal.3d 399,
408 [131 Cal.Rptr. 69, 551 P.2d 389]; see also Brown v. Colm (1974)
11 Cal.3d 639, 642–643 [114 Cal.Rptr. 128, 552 P.2d 688].)
c “The courts require only that physicians and surgeons exercise in
diagnosis and treatment 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, 36 [210 Cal.Rptr. 762, 694 P.2d 1134].)
c In Hinson v. Clairemont Community Hospital (1990) 218 Cal.App.3d
1110, 1119–1120 [267 Cal.Rptr. 503] (disapproved on other grounds in
Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1228 [23
Cal.Rptr.2d 397, 859 P.2d 96]), the court observed that failure to
possess the requisite level of knowledge and skill is negligence,
although a breach of this portion of the standard of care does not, by
itself, establish actionable malpractice.
c “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.”
(Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215 [6
Cal.Rptr.2d 900].)
c “ ‘Ordinarily, the standard of care required of a doctor, and whether he
exercised such care, can be established only by the testimony of
experts in the field.’ ‘But to that rule there is an exception that is as
well settled as the rule itself, and that is where “negligence on the part
of a doctor is demonstrated by facts which can be evaluated by resort
to common knowledge, expert testimony is not required since scientific
enlightenment is not essential for the determination of an obvious
fact.” ’ ” (Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6 [23 Cal.Rptr.2d
86], internal citations omitted.)
c “We have already held upon authority that the failure to remove a
sponge from the abdomen of a patient is negligence of the ordinary
type and that it does not involve knowledge of materia medica or
surgery but that it belongs to that class of mental lapses which
frequently occur in the usual routine of business and commerce, and in
the multitude of commonplace affairs which come within the group of
ordinary actionable negligence. The layman needs no scientific
enlightenment to see at once that the omission can be accounted for on
no other theory than that someone has committed actionable
negligence.” (Ales v. Ryan (1936) 8 Cal.2d 82, 93 [64 P.2d 409].)
c The medical malpractice standard of care applies to veterinarians.
(Williamson v. Prida (1999) 75 Cal.App.4th 1417, 1425 [89 Cal.Rptr.2d
868].)
 
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RandallFabiano

Guest
Special Note on Mal-Practice

Quite often in california, Lawyers are very reluctant in Mal-PRactice cases because of the amount of money they can get off the case. Our good ol' insurance companies have made sure that lawyers get very little, so as a result most lawyers want to see extreme clear cut cases of failure that would not require a huge amount of medical experts to prove their case. Mal-practice cases are limited to actual damages and a 250,000 cap with little or no punitive damages. Which of course you would have to ask the courts to allow as part of your claim. Unless you can find that the doctor or hospital were grossly negligent, then collecting is often very hard. I will say that your case looks good! However, Mal-Prac claims are very rarely taken on contingency. Also, Doctors won't most likely settle, because their settlements are tracked. So you will need to actually go through the court process which could take quite a long time.... Just some friendly advice...
 
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RandallFabiano

Guest
Failure to diagnose Success not required!

Woops... Actually this is something different...
505. Success Not Required

A medical practitioner is not necessarily negligent
just because [his/her] efforts are unsuccessful or [he/she] makes
an error that was reasonable under the circumstances. A [insert
medical practitioner] is negligent only if [he/she] was not
as skillful, knowledgeable, or careful as other reasonable [insert
type of medical practitioners] would have been in similar
circumstances.

Directions for Use
Plaintiffs have argued that this type of instruction “provides too easy an
‘out’ for malpractice defendants.” (Fraijo v. Hartland Hospital (1979) 99
Cal.App.3d 331, 343 [160 Cal.Rptr. 246].) Nevertheless, in California,
instructions on this point have been sustained when challenged. (Rainer v.
Community Memorial Hospital (1971) 18 Cal.App.3d 240, 260 [95
Cal.Rptr. 901].)
Sources and Authority
c “While a physician cannot be held liable for mere errors of judgment
or for erroneous conclusions on matters of opinion, he must use the
judgment and form the opinions of one possessed of knowledge and
skill common to medical men practicing, in the same or like
community and that he may have done his best is no answer to an
action of this sort.” (Sim v. Weeks (1935) 7 Cal.App.2d 28, 36 [45
P.2d 350].)
c “The ‘law has never held a physician or surgeon liable for every
untoward result which may occur in medical practice’ but it ‘demands
only that a physician or surgeon have the degree of learning and skill
ordinarily possessed by practitioners of the medical profession in the
same locality and that he exercise ordinary care in applying such
learning and skill to the treatment of his patient.’ ” (Huffman v.
Lindquist (1951) 37 Cal.2d 465, 473 [234 P.2d 34] [internal citations
omitted].)
c It is appropriate to instruct a jury that “they do not necessarily adjudge
whether there was negligence in terms of the result achieved. . . .”
(Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 800 [182 Cal.Rptr.
855].)
c “[A] physician and surgeon is not required to make a perfect diagnosis
but is only required to have that degree of skill and learning ordinarily
possessed by physicians of good standing practicing in the same
locality and to use ordinary care and diligence in applying that learning
to the treatment of his patient.” (Ries v. Reinard (1941) 47 Cal.App.2d
116, 119 [117 P.2d 386].)
c “A doctor is not a warrantor of cures nor is he required to guarantee
results and in the absence of a want of reasonable care and skill will
not be held responsible for untoward results.” (Sanchez v. Rodriguez
(1964) 226 Cal.App.2d 439, 449 [38 Cal.Rptr. 110].)
 
C

Consentlaw

Guest
I would likely agree with Randall

See when evaluating a case of Negligence you have to weigh three options.
1) What am I hoping to get?
2) What was the proximate cause of the negligence? (I.E. did it cause damages or was it likely that damages could have happened)
3) Do I have a couple of years to prove this case? And do I have a lot of money to prove my case? Medical Malpractice is rarely taken on contingency because of the monitary caps placed on the victim.

I wish I could be of more help, but your case sound's unclear and not necessarily negligent.
Ask IamAlwaysLiable, he seems to be able to take cases that involve no legal basis and turn them into factual cases. IIAL actually stands for
In All Ambulance Litigation,
He's actually chasing cases right now.
 

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