1. My name is John P. Blumberg. I graduated from California State University, Long Beach in 1972 where I received by B.A. degree. Then, I attended Western State University College of Law where I received by J.D. degree in 1976. I was admitted to the practice of law in California upon passing the bar examination in 1976 and have continuously practiced law since that time. I am also admitted to practice in: the Federal Courts in California in the Eastern District, Central District and Northern District. I am also admitted to practice in the Federal District Court of Colorado. I am admitted to practice before the Ninth Circuit Court of Appeals and the United States Supreme Court.
2. In 1987, I was board certified as a civil trial specialist by the National Board of Trial Advocacy, which is recognized as a certifying organization by the State Bar of California, Board of Legal Specialization. In 2011, I was board certified as a specialist in Medical Malpractice Law by the American Board of Professional Liability Attorneys, which is recognized as a certifying organization by the State Bar of California, Board of Legal Specialization. In 2011, I was certified as a specialist in legal malpractice law by the State Bar of California, Board of Legal Specialization. I have maintained my specialist certification in the above three boards.
3. A copy of my professional resume is enclosed with this report which sets forth my education, memberships and leadership positions in professional organizations, professional honors, published articles and professional lectures/course faculty.
4. In formulating the opinions that I have relating to this litigation, I rely on my education, training and experience as well as upon my review of the following documents:
A. The file of Mr. M___ and his firm, M___, H____ and Associates;
B. The deposition of Mr. M___ taken on February 20, 2015;
C. Pleadings, motions, discovery, depositions and court documents in the underlying case;
D. Medical records and reports concerning [plaintiff] Mr. O___, and
E. Facts that I was requested to assume are true, including (1) that Mr. M___ never consulted with any medical expert other than Dr. K___, and (2) that at the time Mr. M___ filed his motion to be relieved, he did not tell his client that he only had approximately 90 days to amend the complaint to name Dr. W___, and that Mr. O___ was unware of this fact.
5. Although I am not admitted to practice law in Nevada, I am aware of the standards of care required of attorneys who represent plaintiffs in medical malpractice claims in Nevada and nationally. The reason I am aware of and competent to opine on the national standards of care is because (1) I passed the certifying examination for medical malpractice law that is given by the American Board of Professional Liability Attorneys, which is a national organization, (2) I am a member of the national board of directors of the American Board of Trial Advocates (ABOTA) and I have spoken with and shared information and strategies with fellow ABOTA attorneys who represent plaintiffs in medical malpractice in many different states, and (3) I am a member of the American Association for Justice, which is a national organization of plaintiff’s attorneys and have read its journals and case-study reports concerning medical malpractice litigation and attended courses in its National College of Advocacy. My knowledge of the standard of care in Nevada is because (1) such standards are national in nature and (2) I have also conferred with and shared litigation-based information with Nevada attorneys who practice in the area of medical malpractice and tort litigation.
6. Mr. O___ retained Mr. M___ to evaluate whether he had a medical malpractice claim against health care providers who were involved in surgeries he underwent, beginning on July 14, 2006. Mr. M___ sent medical records to Dr. K___, a general surgeon in California. Dr. K___ informed Mr. M___ that, in his opinion, the surgeon who operated on Mr. O___ on July 14, 2006 had not acted within the standard of care, resulting in medical complications that required numerous subsequent medical procedures. The medical records reviewed by Dr. K___ disclosed that the surgeon was Dr. W___. Thereafter, Dr. K___ signed an Affidavit on July 19, 2007 in which he stated, “ They did this [operation] thru [sic] a laparoscopic approach, which is within the standard of care, but from the chart operation report I feel that a sigmoid repair in an abscess cavity isn’t within the standard of care.” Dr. K___ mentioned that on July 23, 2006, Dr. B___, a radiologist placed a percutaneous CT guided drain, but did not mention that he fell below the standard of care. The complaint on behalf of Mr. O___ was filed by Mr. M___ on July 12, 2007, in which he named, as defendants Dr. B___, ___ Hospital, Inc., and fictitiously-identified defendants. On October 23, 2007, Dr. K___ signed a “Second Amended Affidavit” in which he repeated his opinion that the July 14, 2006 operation was not within the standard of care but also opined that Dr. B___ fell below the standard of care. In approximately November, 2007, a litigation paralegal who was a friend of Mr. O___ sent him a memorandum in which he advised, among other things: “Need to immediately retain a radiologist to review your case to provide an opinion as to whether Dr. B___ was negligent” and “Need to immediately sue Dr. W___ as a co-defendant. This memo was sent by Mr. O___ to Mr. M___, as evidenced by its presence in his file. Thereafter, Mr. M___ did not retain a radiologist to provide an opinion whether Dr. B___ was negligent and did not amend the complaint to add Dr. W___ as a co-defendant. Ultimately, a summary judgment motion was filed by Dr. B___ supported by the affidavit of a board certified radiologist and no radiologist could be found who would support a negligence claim against Dr. B___, resulting in the granting of the summary judgment motion. When an attempt was made by Mr. O___’s new attorney to amend the complaint to add Dr. W___ as a defendant, the motion was denied by the court as being untimely because Dr. W___’s identity and liability had been known at the time the complaint had been filed. Thereafter, the complaint was dismissed.
7. In his deposition, Mr. M___ testified, among other things, that:
A. His client instructed him to sue Dr. B___ and that “we took Mr. O___ at his word that Dr. B___ was the bad actor.”
B. He consulted a surgeon to determine the liability of a radiologist.
C. He never got an opinion that the surgeon was negligent.
D. He was aware of the Nevada comparative negligence statute.
E. He was unable to perform a complete analysis of medical liability because time was short between the initial consultation and receipt of records.
F. He chose not to amend the complaint for strategic reasons, i.e., that suing Dr. W___ would convert him from a friendly witness who would point the finger at the radiologist into a hostile witness who would collaborate with Dr. B___ against plaintiff.
8. In my opinion, Craig M___ fell below the standard of care that is required of attorneys who represent plaintiffs in medical malpractice claims. It is my further opinion that the negligence of Mr. M___ caused the court to deny the motion to amend the complaint to add Dr. W___ as a defendant. My opinions are based on the following:
A. An attorney who undertakes to advise a client whether he or she has a viable medical malpractice case must first obtain an opinion from a qualified medical expert. Mr. M___ consulted Dr. K___, a general surgeon, who told him that the surgeon (Dr. W___) fell below the standard of care. Dr. K___ also opined that Dr. B___, the radiologist was negligent. A lawyer who is going to sue a radiologist might be justified in relying on a general consultant if he doesn’t have time to do a more thorough review; however, after filing, the standard of care requires that he obtain an expert opinion from a subject matter specialist, i.e. a radiologist. By pursuing a cause of action against Dr. B___ without obtaining an expert opinion from a radiologist Mr. M___ fell below the standard of care.
B. Although Mr. M___ testified in deposition that he merely followed the instruction of his client to sue Dr. B___ – and even assuming that such was true, a lawyer complying with the standard of care does not blindly follow the instruction or belief of his client regarding whom to sue or not sue in a medical malpractice case. Typically, the client is unaware of what actually happened or where the negligence or causation occurred. It is the obligation of the attorney to make that determination.
C. Although Mr. M___ testified that he had made a strategic decision not to sue Dr. W___, such decision-process fell below the standard of care because he did not consult a radiologist which would be necessary to make the determination of where the primary liability lies.
D. Assuming that Mr. M___ desired to make a so-called strategic decision not to sue Dr. W___, to comply with the standard of care, he would have had to weigh the potential benefit of having Dr. W___ as an “ally” against the probability that Dr. B___’s lawyer would use the empty-chair defense to affix some or all of the blame on Dr. W___ with the result being that Mr. O___’s damages would be reduced by the comparative negligence assessed against Dr. W___ or that there would be a verdict in favor of Dr. B___. An attorney complying with the standard of care would know that it would be highly unlikely – in a close medical community, that Dr. W___ would support an accusation of negligence against Dr. B___. Moreover, Mr. M___ had no information from which he could have reasonably concluded that Dr. W___ would support the negligence claim against Dr. B___. Therefore, there was no legitimate basis for this so-called strategy and Mr. M___ fell below the standard of care in not naming Dr. W___ as a defendant.
E. Mr. M___ also fell below the standard of care because (1) he was aware that Dr. W___’s negligence had caused harm to Mr. O___, and (2) he had no expert radiology opinion that Dr. B___ had been negligent and, nevertheless, did not name Dr. W___ as a defendant when he filed the complaint and never took steps to amend the complaint to name Dr. W___ as a defendant.
F. Mr. M___ also fell below the standard of care because it is foreseeable that a general surgeon’s opinion regarding the acts and omissions of a radiologist would either (1) not be allowed by the court, or (2) not credible in comparison to the opinion of a defense radiology expert.
G. Mr. M___ also fell below the standard of care in delaying a consultation with a radiology expert because the passage of time would likely result in the denial of a motion to amend the complaint to name Dr. W___ as a defendant if the radiology expert’s opinion did not support a liability claim against Dr. B___.
H. Mr. M___ also fell below the standard of care by not informing his client that the time to amend the complaint to name Dr. W___ would expire soon. When an attorney is aware of approaching time deadlines that will affect his or her client, he has an obligation to inform the client of those deadlines so that the client does not suffer any prejudice. Mr. M___ was aware that his client wanted to sue Dr. W___ and when he made his motion to be relieved, he did not inform Mr. O___ that shortly after the hearing on the motion, the time within which to amend the complaint to name Dr. W___ would expire.
I reserve the right to amend and/or revise this report as additional information is obtained by me relating to the facts underlying my opinion. To the extent that any causation opinions are contained in this report, my opinions are based on reasonable probabilities.
Dated: May 12, 2015