Weekly Law Resume - June 7, 2012: Defendant in a Personal Injury Action Must Prove Each of the Elements of a Claim for Medical Malpractice to Apportion Fault to a Non-Party Physician

by Low, Ball & Lynch
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Katerina Chakalis v. Elevator Solutions, Inc., et al.
Court of Appeal, Second District (May 18, 2012)

In Wylson v. Rittl (2003) 105 Cal.App.4th 361, the court held that a non-party medical doctor cannot be found comparatively at fault in a personal injury action unless the defendant uses expert testimony to prove the doctor failed to meet the applicable standard of care. The Chakalis decision expands the Wylson holding. The Chakalis court concluded that a non-party medical doctor cannot be found comparatively at fault unless the defendant proves all of the elements of medical malpractice and the jury is instructed concerning the requirements of a medical malpractice claim.

Plaintiff Katerina Chakalis sustained personal injuries after the elevator in an apartment building malfunctioned and fell six floors. Plaintiff sued the elevator maintenance company, the owner of the apartment building, the property manager and the property manager’s agent. Among her physical injuries, plaintiff claimed that she had been poisoned by the hydraulic oil which leaked from the damaged elevator. Plaintiff sought treatment from Dr. James Dahlgren, who diagnosed plaintiff with hydraulic oil poisoning. He placed her on a detoxification treatment plan and prescribed Provigil. Plaintiff contracted Stevens-Johnson syndrome, which causes a severe rash on the skin. Defendant’s expert physicians opined that Dr. Dahlgren’s diagnosis was incorrect and indicated that the prescription of Provigil had probably caused plaintiff to contract the Stevens-Johnson syndrome. Dr. Dahlgren was never a party in this lawsuit.

At trial, defendants’ medical experts were critical of Dr. Dahlgren’s treatment of plaintiff, but plaintiff’s attorney successfully objected to defense counsel’s question which would have elicited testimony from a defense expert that he believed Dr. Dahlgren’s treatment of plaintiff did not meet the standard of care for a treating toxicologist. Defendants argued that Dr. Dahlgren’s unnecessary treatment and incorrect diagnosis had caused much of plaintiff’s physical pain and mental suffering. Defendants did not request jury instructions regarding medical malpractice.

The jury found most of the defendants liable. The jury allocated 52% of fault to Dr. Dahlgren, which reduced plaintiff’s recovery of non-economic damages against defendants pursuant to Civil Code § 1431.2 (Proposition 51). Plaintiff’s motion for a new trial was denied, and plaintiff appealed the judgment. Plaintiff challenged the apportionment of fault to Dr. Dahlgren.

The Court of Appeal reversed the trial court judgment because the jury should not have been permitted to allocate fault to Dr. Dahlgren. While the Court of Appeal recognized that a jury can allocate fault to a non-party treating physician who is found to have committed medical malpractice, the defendants in this case had failed to prove each of the elements to establish a claim of medical malpractice against Dr. Dahlgren. The Court of Appeal recognized that defendants had not been given the opportunity to prove that Dr. Dahlgren had breached the standard of care, because the trial court had not allowed defendant to obtain the opinion testimony from a defense doctor. The Court of Appeal held that the trial court should have allowed the defense to receive the doctor’s liability opinion. Without this opinion, defendants had not been allowed to present the necessary expert testimony to show that Dr. Dahlgren committed malpractice and that Dr. Dahlgren’s treatment was a substantial factor in causing plaintiff’s injuries within a reasonable medical probability. Also, the jury should have been instructed on the requirements of a medical malpractice claim. The Court of Appeal held that the trial court should have granted plaintiff’s motion for new trial.

COMMENT

In order to receive a reduction in damages awarded to a personal injury plaintiff, a defendant can claim that one of plaintiff’s treating physicians has committed medical malpractice, without filing a cross-complaint against the doctor. The defendant has the burden of proving that the non-party physician committed medical malpractice and that the physician’s negligence was a substantial factor in causing plaintiff’s injuries. Also, the jury must be instructed on the requirements of a medical malpractice claim.

For a copy of the complete decision see: http://www.courtinfo.ca.gov/opinions/documents/B221531.PDF

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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