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Eric Cox v. Peter B. Slabaugh et al

December 13, 2010


Plaintiff Eric Cox appeals from a judgment of the Alameda County Superior Court,(Alameda County Super. Ct. No. RG07330099) following the court's grant of summary judgment in favor of defendants Peter B. Slabaugh, M.D., and Alameda County Medical Center (ACMC) on Cox's medical malpractice claim against defendants.

The opinion of the court was delivered by: Kline, P.J.

Cox v. Slabaugh



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Cox contends that the court erred in granting summary judgment for defendants, due to Cox's failure to produce expert testimony regarding the standard of care and causation in opposition to the motion. He argues that triable issues of material fact exist as to whether defendants' negligence allowed his knee to become infected. Specifically, Cox argues (1) defendants' evidence did not negate his theory of liability; (2) the court erred in finding as an undisputed material fact that defendants met the standard of care; and (3) the court erred in refusing to allow Cox to rely on the doctrine of res ipsa loquitur to establish liability and causation. (4) Cox also contends that the court erroneously sustained defendants' objections to his documentary evidence. We shall affirm the judgment.*fn1


The following facts are undisputed. On May 22, 2006, Cox was injured in a motor vehicle accident at work, suffering a fracture of his right leg. He was taken to the emergency department at Highland General Hospital (Highland). Highland is one of the hospital campuses that is part of respondent ACMC.*fn3 X-rays showed a fracture of the top of Cox's right tibia at the knee joint. The fracture was very serious and surgery was needed to repair the knee. The surgery involved putting metal plates and screws into Cox's leg to repair the knee. Cox consented to the surgery.

Surgery was performed on May 24, 2006. Cox was discharged from Highland on May 30, and given a follow-up appointment for June 6, 2006. He was seen at the outpatient orthopedic clinic on June 6 by Dr. Justice, one of the orthopedists involved in his care while he was hospitalized at Highland. At the follow-up visit, Cox reported that he was not having any pain, his cast was removed and his incision was found to be clean, dry and intact. A new cast was put on his leg. On June 15, Cox was seen at Kaiser in Oakland for complaints of constipation, nausea and loss of appetite. He was not having any problems with his leg at that time. On June 22, 2006, Cox went to the emergency department of Kaiser after noticing that day that a brownish fluid was leaking through his cast at the area of his knee. Four days earlier, Cox had noticed an odor emanating from the cast. At the time he noticed the odor and fluid, he did not notice any increase in his pain. At Kaiser, doctors diagnosed an infection in Cox's knee. He was admitted to the hospital, given antibiotics, and several surgeries were performed to remove infected tissue. Cox was discharged from Kaiser on July 18, 2006, and he continued to receive antibiotics for a period of time after discharge.

Defendants stated as an undisputed material fact that the surgery was performed by Slabaugh, and by orthopedic residents Jun Yang, M.D. and Jennifer Peter, M.D.*fn4 Cox disputes that Slabaugh actually performed the surgery. However, he cites only to a part of Slabaugh's deposition testimony that is consistent with Slabaugh's having performed the surgery. At his deposition, Slabaugh acknowledged that he "[did not] have an independent recollection of the surgery itself"; however, as he "was the attending surgeon, and . . . based on the injury that occurred and the surgery that was done, I was most probably surgically scrubbed on the case and involved in it, along with the resident surgeons."

Defendants asserted that the "surgery was performed in an appropriate manner consistent with the standard of care," referring to Slabaugh's declaration and Cox's deposition testimony that the doctors told him the day after surgery that it had gone well.*fn5 Defendants also maintained that "[d]uring and after his surgery, [Cox] was given Ancef, an antibiotic, to reduce the risk of post-operative infection." Defendants relied upon the anesthesia record, the physician's orders, and Slabaugh's declaration that "the Highland records clearly show that the patient was given an antibiotic called Ancef during and after his surgery, which is the standard protocol for prophylactic antibiotic treatment to reduce the risk of post-surgical infection. Ancef is the most commonly used antibiotic for that purpose. To the extent that [Cox's] claim in this lawsuit is based upon a belief that he was not given antibiotics at Highland, it is simply not supported by the evidence contained in his medical records."

Defendants also asserted, based upon Slabaugh's declaration and the deposition of Dr. Kanwaljit Singh Gill, a board certified orthopedic surgeon at Kaiser, that "[p]ost operative infections are a risk of all surgeries, and the potential for such a complication cannot be eliminated completely, regardless of the precautions taken"; that Cox's risk for infection was somewhat increased due to the fact he was diabetic; and that the type of surgery performed on Cox has a greater risk of infection than many other types of surgeries.

Cox disputed that the surgery was performed in a manner consistent with the standard of care "as to the administration of antibiotics." Cox argued there was "no record that any antibiotics were actually administered or administered in the proper number of doses." Cox relied for this statement on the physician's orders showing that Ancef was ordered, but containing no express notation that the drug had been administered, and upon a letter from his own counsel stating Cox's claim included a "failure to administer antibiotics, resulting in infection." Cox also disputed defendants' assertion that Ancef was appropriate and administered in accord with the standard of care. He maintained that there was no evidence that Ancef was the "antibiotic of choice for a patient suffering with insulin dependent type II [diabetes]" who was admitted with multiple open wounds.

Cox also disputed defendants' statement that "[p]ost-operative infections are a risk of all surgeries, and the potential for such a complication cannot be eliminated completely, regardless of the precautions taken," as to the last clause, "regardless of precautions taken." Cox argued the clause was argumentative and he further challenged Slabaugh's ability to opine as an expert witness on this matter on the ground that Slabaugh was not a specialist in infectious diseases who was competent to express such an opinion. Cox challenged defendants' statement that the fact he developed an infection after surgery is not evidence that the treatment he received did not conform to the standard of care. Cox objected to the statement as argumentative and without foundation, as well as on the basis it was an "impermissible opinion on a legal question as to what direct or circumstantial evidence is competent to prove the standard of care." Cox challenged defendants' statement that the infection did not develop until some time after June 15, 2006, and that there was no evidence it was caused by treatment he received at Highland. Cox stated there was evidence of infection as early as June 6, 2006, referring to his deposition testimony that he had severe pain soon after his follow-up appointment and a medical treatise stating that infection may be characterized by symptoms such as "fever, chills, nausea, vomiting," among others.

Cox maintained in his undisputed material fact statement that defendants did not screen him for the potential for infection when he was first admitted and did not advise him of the risk of post-operative infection. He further asserted that pain and nausea and vomiting may be evidence of the presence of infection and that, on June 6, 2006, he was nauseous and vomited twice. The health care professional he contacted advised him if the vomiting became persistent to go to the emergency room. When he noticed the brown stain oozing from the cast and the accompanying foul odor, he went to the emergency room at Highland. Highland refused to treat him and he left and went directly to Kaiser, where he was admitted and placed on antibiotics.

Cox also asserted the following, based upon exhibit Nos. 3 and 11 that were excluded by the court upon defendants' objections: After his admission to Kaiser, and during one surgery there, Cox's knee was found to be full of pus. The postoperative diagnosis was "infected hardware, right knee." In a later surgery at Kaiser, the metal plate and screws defendants implanted were removed from his knee. Kaiser cultured Cox's wound and the hardware in his right leg. The cultures were positive for pseudomonas aeruginosa and staph. captits infections.

Cox also stated as undisputed that the plate and screws defendants implanted in his leg are shipped by the manufacturer to defendants in a non-sterile condition. (Cox also asserted that the new long cast Dr. Justice put on his right leg at the follow-up visit fit too tightly, and that at the follow-up appointment, he was experiencing throbbing pain, which he rated on a level of 10 at the time. These assertions were not included in his supplemental statement of undisputed facts. Further, the deposition excerpt to which he refers does not state he felt severe pain at the follow-up appointment itself, and Cox's assertion that he had pain at the follow-up appointment--as opposed to ...

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