Healthcare and Business Litigation Partner Michael A. Zuk is pleased to report that the Second District Court of Appeals sustained the Trial Court’s Order sustaining the demurrer filed to a Second Amended Complaint for elder abuse in Hubbard v. Zargarian, M.D. (B207427).  In the underlying case Mr. Zuk was successful in having the demurrer sustained, without leave to amend, in an alleged elder abuse action which involved allegations of elder abuse involving an alleged failure to treat Stage IV Ducubitus (down to the bone) ulcers and failing to evaluate and care for the decedent’s skin while she was under the care of Dr. Zargarian in the hospital.  Moreover, the Complaint alleged that Dr. Zargarian was responsible for the implementation by nursing personnel of appropriate care. 

The Court of Appeal rejected this argument indicating in order that to state a claim against the physician, the ultimate facts alleging knowledge of the high degree of probability of injury and deliberate disregard of the same are required to be pled, and further noted that as a cardiologist, Dr. Zargarian had no duty, as argued by Mr. Zuk, to supervise nursing personnel.

Product Liability Chair and Business Litigation Attorney Craig Winterman argued the matter before the Second District Court of Appeal.

Healthcare and business litigation parter, Michael A. Zuk, Esq. Successfully defended a physician accused of permanently disabling a web printer by allegedly failing to remove sufficient bone during a second shoulder surgery performed on the patient.  The patient was a successful web printer, who, based upon his earnings, claimed to have lost in excess of $1 million, present cash value, over his work life expectancy.  Plaintiff contended that Dr. Beck failed to appreciate shoulder impingements syndrome caused by Dr. Beck’s previous failure  to remove enough bone during his initial shoulder surgery.  The second shoulder surgery was necessitated by a setback plaintiff suffered and allowed Dr. Beck to re-explore the area of the previous surgery.  Dr. Beck did not believe, according to his operative report, that there was sufficient impingement to warrant intervention.  The patient then left his carrier  and went to a subsequent treating orthopedic surgeon who re-operated on the patient because of continuing complaints of pain, weakness and lack of range of motion.  The patient reported substantial improvement shortly following the third surgery by the subsequent treating physician who was quite critical in his criticism of Dr. Beck.  At trial, the jury was convinced that Dr. Beck utilized his judgment and did not fall below the standard of care even if he failed to remove more bone during either of his two surgeries. Moreover, the defense was able to successfully prove that plaintiff failed to comply with the regime of physical therapy that Dr. Beck planned following the second surgery and was deprived of the opportunity to follow the patient through when he left his care.  The jury returned a unanimous verdict in less than one hour in deliberation time.  This was the fourth defense verdict obtained by Michael A. Zuk this year and the third in three months.   

Partner Michael A. Zuk successfully defended a physician accused of wrongfully causing the death of plaintiff’s decedent in this matter.  The patient was admitted to the hospital under the care of Dr. Kumar with progressive shortness of breath, fever, weakness, and fatigue.  He was a chemotherapy patient who was treated for multiple myeloma and had responded well to his chemotherapy.  Even though statistically the patient was at a higher risk for developing deep vein thromboses and was also at risk for pulmonary embolism, based on the patient’s profile, Dr. Kumar did not believe it necessary to order prophylactic anti-coagulant medication at admission.  Plaintiff’s experts were critical of his decision not to do so.  Moreover, plaintiff’s experts believed that the patient had potential for pulmonary embolism based on the presenting symptoms and faulted Dr. Kumar for not ordering appropriate screening tests.  While hospitalized, the patient underwent surgery to remove one of the sources of his infection which was located in the jaw.  Approximately one day following the surgery the patient deteriorated and Dr. Kumar diagnosed pulmonary embolism.  Plaintiff’s experts were critical of his response to the changing condition, claiming that Dr. Kumar waited too long to run appropriate diagnostic tests to rule in pulmonary embolism and failed to order the appropriate therapeutic medication in a timely fashion.  The defense was able to establish that since the patient was post-operative, Dr. Kumar needed to definitively rule in pulmonary embolism before starting medication for the patient’s deterioration, which could have been explained by other, albeit less likely, possibilities.  Further, the defense was able to establish that Dr. Kumar’s judgment in not ordering prophylactic mediation for the patient was an appropriate judgment decision based on the entirety of the patient’s presenting situation.  Plaintiff’s decedent was an extremely successful businessman earning well over a quarter million dollars per year, and plaintiffs’ contended he would work 5 to 10 more years had he survived the hospitalization.  The three week trial in Van Nuys, CA resulted in an 11-1 defense verdict following three and ½ hours of deliberations. 

This case involved the alleged failure to diagnose and treat glaucoma resulting in permanent and disabling vision loss. The patient was an extremely sympathetic individual who claimed he was not advised of a diagnosis made of the onset of glaucoma and early nerve damage made by defendants years before it was incidentally diagnosed as a result of a severe beating he suffered while he was attacked at work while he was a security guard. He claimed the lengthy delay (more than 3 years) caused him permanent and disabling vision loss. The case was tried in Compton, CA, and as a result of discovery and investigation, the case was bifurcated and tried on the Statute of Limitations prior to trial of the case in chief.

The defense of Shammas and Peters and the Shammas Eye Medical Clinic was able to establish that the appropriate diagnosis was made, the patient was in fact, told of his diagnosis, and prescribed medication for it.  The patient/plaintiff was impeached as a result of the investigation and discovery, and the testimony of other physicians he had been to, to whom he made statements which were inconsistent with his trial testimony.  Moreover, due to substantial and thorough investigation, the defense was able to find a physician can witness who, due to disability, had ceased practicing medicine and left the area, leaving virtually no trail.  The testimony of this physician was corroborative of the defense and was essential to the presentation of the defense case.

The jury deliberated for less than three hours before returning and 11/1 verdict on behalf of the defendants.

Craig L. Winterman and Gary S. Yates, along with Les Williams of Herzfeld & Rubin PC, successfully defended a products liability suit brought against Bentley Motors, Inc. and Bentley Motors, Ltd.  Plaintiff, Fredric Ascari, a 40-year old attorney who was rendered a quadriplegic, contended that the seat in the 1990 Bentley Turbo R that he was driving was defectively and negligently designed.  Mr. Ascari lost control of the Bentley as he was driving on the McArthur Blvd. on-ramp for the northbound SR 73 freeway.  The Bentley collided with the metal guardrail that was adjacent to the on-ramp.  Mr. Ascari argued that his seat collapsed when the rear of the Bentley struck the guardrail.  As a result, Mr. Ascari ramped up the seat back striking his head into the rear window.   Mr. Ascari sustained fractures to his C -5 and C-6 vertebral bodies and a 50 cm scalp avulsion.  Plaintiff was represented by Gerry Spence’s former partners, Ed Moriarty, Brad Booke and Shandor Badaruddian, and San Diego attorney, Mary Downey.   They asked the jury to return a $70,000,000 verdict.  After a five-week trial, an Orange County Superior Court jury rendered a unanimous defense verdict after only 2 hours of deliberations.  This was the first products liability trial in the United States involving a Bentley automobile.

This case involved the claimed lengthy delay in the diagnosis of ovarian cancer resulting in the death of a 32-year-old wife and mother of a one-year-old child.  Dr. Bier was a radiologist who read and interpreted a pelvic ultrasound in order to determine the status of an ovarian mass, which had been previously diagnosed and was being monitored by plaintiff’s OB/GYN (also a defendant), her perinatologist, (also a defendant) and her primary care physician (also a defendant).  The allegations against Dr. Bier were that he failed to appreciate the nature of the abnormally enlarged ovaries and failed to adequately report the abnormality because he failed to obtain the appropriate diagnostic studies to define the ovarian masses.  Plaintiffs contended while the mass had been appreciated earlier by other physicians and had been monitored, Dr. Bier had the “last clear chance” to provide information sufficient to allow the other physicians to obtain a definitive diagnosis and perform curative surgery, which had at least a 70% to 80% success rate as of the time Dr. Bier performed his study.

Defense of Dr. Bier was able to establish that the ultrasound reading was appropriate, within the standard of care, and contained all information requested by the clinicians and all information needed to allow them to make a diagnosis and recommend a treatment regimen immediately.  Furthermore, Dr. Bier was able to establish that his study was both adequate and sufficient to define the nature and extent of the ovarian masses.

The jury returned a defense verdict on behalf of Dr. Bier and found the perinatologist negligent but not responsible for the death of plaintiffs’ decedent.  The OB/GYN and PCP were found negligent, and their negligence was responsible for the death of plaintiffs’ decedent.  The jury awarded $4,000,000 in damages.

The California Court of Appeals, Second Appellate District affirms the grant of summary judgment that was authored by Partner, Gary S. Yates.

Plaintiffs, Luis and Heather Barbarena, appealed from the granting of a summary judgment and dismissal in favor of Defendant, Keyes Audi, a local Audi dealership.  The lawsuit involved a 2005 Audi A4 which stalled on the Ventura Freeway and was rear-ended by an automobile driven by co-defendant, Matthew Salzberg.  As a result of the collision, Luis Barbarena sustained neck, back and shoulder injuries necessitating a lengthy course of treatment.  Heather Barbarena, who owned the Audi, sued for property damage and loss of consortium.
 

Plaintiffs contended that the Audi stalled as a result of a defectively and negligently designed fuel system and also asserted a breach of warranty claim. In the summary judgment, Mr. Yates argued that the Barbarenas had failed to furnish any competent evidence to support any of their theories of liability. The Appellate Court affirmed the Honorable Judge Richard Fruin’s granting of the summary judgment in favor of Keyes Audi.   Keyes Audi’s appellate brief was authored by Gary Yates and  Miriam Skolnick and Les Williams of Herzfeld & Rubin PC.

Partner Michael A. Zuk is pleased to report that the Second District Court of Appeal has sustains a successful Summary Judgment Motion brought in Lee vs. Jung (B206603).  In the underlying case Mr. Zuk was successful in obtaining a summary judgment in a medical negligence action which involved allegation of Medical Malpractice, negligence in hiring a home health care nurse and elder abuse.  Plaintiff claimed that the deceased patient was not properly monitored by the defendant physician and that his “hand selected” home health care nurse failed to give the patient her prescribed medicine, which caused her death.  In the motion, the defendant physician was able to establish that he did not cause or contribute to the death because his care was appropriate, he did not hire or supervise the home health care nurse, and there was absolutely no evidence upon which any issue of fact existed with respected to elder abuse.

Significantly, the motion was granted even in light of Kelly vs. Trunk and Garibay vs.Hemmat.  Additionally, the court sustained the granting of evidentiary objections to the declaration filed in opposition to the Motion for Summary Judgment.

The court noted that the declaration filed in support of the motion was appropriate and had and appropriate foundation under Kelly and Garibay and that the objections to the opposing declaration where well taken and the court appropriately granted them.

Therefore, the court upheld the granting of the Motion for Summary Judgment.

H&R is proud to announce its partner status with 4 The World and its direct donations of computer equipment and electronic communications devices to be distributed to schools in the developing world. 4 The World is a U.S.-based non-profit organization providing support to under-developed communities and schools throughout the world, by empowering local peoples to collaborate, learn new skills and improve their own communities. (www.4theworld.org). H&R and its employess are proud to be a partner in this collaborative effort. H&R partner, Michael A. Zuk, serves on the board of business advisors for 4 The World.