 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Paxton v. Stewart12/3/1998
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of San Diego County, Peter E. Riddle, Judge. Affirmed.
Cynthia Paxton and her husband Richard Paxton (plaintiffs) filed the instant action for medical negligence and loss of consortium against Doctors Linda Stewart, Robert Giarratano and Ronald G. Salzetti, and Mercy Hospital and Medical Center (Mercy) (collectively defendants). The complaint alleges Stewart, the obstetrician who attended the delivery of Paxton's daughter, committed medical malpractice by allowing Paxton to deliver vaginally instead of by cesarean section and by negligently repairing and treating the fourth degree perineal tear Paxton suffered as a result of the vaginal delivery.
At trial, plaintiffs sought to elicit expert opinion testimony regarding negligence and the standard of care from two of Paxton's treating physicians. Plaintiffs' expert witness designation stated the treating physicians had "not technically been retained by plaintiffs" but would "be called to testify at trial, as to liability, causation, and damages." The court ruled the treating physicians' opinion testimony was limited to that based on their personal observations. Based on that ruling, plaintiffs concluded they could not meet their burden of proof and consented to a judgment against them to facilitate this appeal. Plaintiffs contend the court committed prejudicial error by prohibiting the treating physicians from testifying as to the standard of care. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Paxton received prenatal care from defendants Giarratano and Salzetti. Plaintiffs' complaint alleges Giarratano agreed to deliver Paxton's baby by cesarean section due to her severe Kraurosis. However, when Paxton arrived at Mercy to deliver her baby, Stewart assumed her care as an on-call obstetrician for Giarratano.
Paxton vaginally delivered a healthy baby girl, but she sustained a fourth degree tear from her vagina to her rectum. Stewart repaired the tear immediately after the delivery. Two days later, Paxton expelled some vaginal packing which Stewart had placed during the repair procedure. The nurses caring for Paxton were unaware of the packing until Paxton expelled it.
After Paxton was discharged from Mercy, she developed a vaginal infection and a rectovaginal fistula. Stewart repaired the fistula in two separate outpatient surgeries performed at Mercy, as the sutures from the first surgery did not hold. Plaintiffs allege Stewart's negligent failure to perform a bowel preparation caused the sutures to tear out, leaving an open infected wound. Plaintiffs allege Paxton is bowel incontinent and cannot live a normal life as a result of defendants' negligence. Although it is not alleged in the complaint, plaintiffs presented evidence at trial that Paxton suffered a "web-like" abnormality in her vagina which could have been a consequence of reparative surgery to the vaginal opening.
Plaintiffs filed their complaint in May 1995 and served their first designation of experts under Code of Civil Procedure section 2034 in January 1996. Plaintiffs listed 10 experts, 9 of which were physicians who had treated her, including the defendant doctors. In her expert declaration, plaintiffs' counsel stated:
"The experts listed as 1 through 9 have not technically been retained by plaintiffs. They are plaintiff CYNTHIA PAXTON's present and past treating physicians who will be called to testify at trial, as to liability, causation, and damages. Their fees for providing deposition testimony are unknown at this time."
Regarding plaintiffs' 10th expert, Jo Ann Wegmann, plaintiffs' counse
Page 1 2 3 4 5 6 7 8 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|