Facts

Plaintiff Martha Perez, a 39-year-old unemployed at the time of the incident, was a patient of Leroy Reese, M.D. at White Memorial OB/GYN Medical Group. As of February 2005, the plaintiff was diagnosed with a leiomyomata in the lower segment of her uterus. The tissue in that area became necrotic and resulted in prolapse. Dr. Reese performed surgery on plaintiff to correct this problem.

A week later, the plaintiff returned to the clinic because of ongoing pain and bleeding. Defendant Dr. E. Lawrence Spencer-Smith was covering for Dr. Reese. The plaintiff was admitted to the hospital for pain management and observation. A hysterectomy was indicated, and the plaintiff wanted to go forward with the procedure due to the severe pain. Dr. Spencer-Smith performed the procedure without apparent incident.

Post-operatively, the plaintiff complained of numbness in her right anterior and lateral thigh. A neurology consultation was performed and it was determined that there was some damage to plaintiff's femoral nerve, etiology unknown. She continued to improve in this regard during her stay at White Memorial. After discharge, she underwent physical therapy and had a number of nerve conductivity studies, which showed marked improvement over time. By the time of trial, the plaintiff had essentially no motor nerve dysfunction, but she continued to complain of sensory nerve impairment and weakness.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that the defendant negligently placed the retractor, which resulted in pressure of the psoas muscle, which resulted in damage to the femoral nerve. Alternatively, it was contended that the blades of the retractor moved during the procedure and were not repositioned by the defendant, which caused pressure on and damage to the femoral nerve.

DEFENDANT'S CONTENTIONS:
The defendant contended that he complied with the standard of care and that the injury complained of can, and in this case did, happen under the best of circumstances during pelvic surgery.

Settlement Discussions

The plaintiff made no settlement demand. The defendant offered a waiver of costs and any right to sue for malicious prosecution.

Injuries

Damage to femoral nerve in the right leg.

Other Information

According to plaintiff's counsel, Judge Kalin denied plaintiff's motion to excuse three panelists for cause; each of whom stated he/she would not follow the law regarding plaintiff's burden of proving case by preponderance of evidence; each requiring a higher burden of proof. Additionally, Judge Kalin denied plaintiff's motion for cause to excuse a physician-panelist of 44 years who volunteered he could not be a fair juror in a medical malpractice case, and would substitute his knowledge for defense expert testimony. Judge Kalin overruled plaintiff's objection to expert medical testimony of "possibilities" (plaintiff cited Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396 and the court's pre-trial ruling to exclude such testimony per plaintiff's motion in limine) on the basis that plaintiff was presenting a case of res ipsa loquitur, and then denied CACI 518 (medical malpractice res ipsa instruction), stating that res ipsa loquitur does not apply to medical malpractice actions. When plaintiff cited recent res ipsa medical malpractice case Fields v. Yusuf (2006) 144 Cal.App.1381 and the court's contrary evidentiary ruling, Judge Kalin's reply was that plaintiff should appeal his ruling. FILING DATE: May 16, 2006. INSURANCE CARRIER FOR DEFENDANT: SCPIE

Deliberation

30 minutes

Poll

12-0 (defense)

Length

4.5 days