Sacramento Birth Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

In its next First Amendment pronouncement, in Keenan v. Superior Court (2002) 27 Cal 4th 413, 117 Cal.Rptr. 2d 1, our Supreme Court held facially unconstitutional the "Son of Sam" law, Civil Code Section 2225(b)(l), concluding that these provisions of the California statute are facially invalid under both the free speech clause of the First Amendment in the Federal Constitution, as applied to the states through the 14th Amendment and the Liberty of Speech clause, of the California Constitution, Article I, Section 2, Subdivision(a).

Just about one year ago, the U.S. Supreme Court, in Tory v. Cochran (2005) 542 U.S. 965, struck down an injunction issued by a judge of this court (and upheld by the Court of Appeal), prohibiting petitioners from picketing, displaying signs, placards or other written or printed material, and from orally uttering statements about one Johnnie L. Cochran, Jr. and about Cochran's law firm in any public forum .

In so holding, the Supreme Court found that the injunction .... amounts to an overly broad prior restraint upon speech, lacking plausible justification, and that "Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." (Tory. supra) (Emphasis added.) (Citations omitted. )

Then, just two months ago, in ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 135 Cal.App.4th 841, Justice Epstein, for Div. 4 of our 2nd District, affirmed a courageous (conservative Republican) judge, (Stephen Peterson, who sits in Van Nuys) who held unconstitutional, strictly on 1st Amendment grounds, Civil Code. Section 2527, a statute compelling speech, with severe consequences for its violation.

Continue reading " Physician In Sacramento Sued For Causing Birth Injury, Part 5 of 5 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

IT IS APPROPRIATE FOR A PLAINTIFF TO INCLUDE A PRAYER FOR A SPECIFIC DOLLAR AMOUNT, AS WELL AS A PRAYER FOR PUNITIVE DAMAGES BECAUSE CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 425.13(a) (AS IS C.C.P. SECTION 425.10) IS PATENTLY UNCONSTITUTIONAL

Preventing plaintiffs from stating the amount of damages they seek violates a litigant's First Amendment right to free expression, as the two cited statutes command prior restraint on freedom of expression.

To put this matter in perspective, we start with the dissenting opinion of our late, beloved Justice Mosk, who, more than a decade past, in Schwab v. Rondel Homes, Inc. (1991) 53 Cal. 3d 428, 440-441, 280 Cal.Rptr. 83, wrote:

A statutory scheme that forbids a party to provide useful information-a form of compulsory silence-and that creates anomalous results ... urgently needs reexamination. Moreover, in a newsworthy case, a lawyer or party can always call a press conference and trumpet the claims to the heavens, or at least to the terrestrial media. Thus, not only are (CODE OF CIVIL PROCEDURE SECTIONS) 425.10 and 425.11 bad law and bad policy, they are an ineffective means of implementing the legislature's apparent intent. Nor can they be made effective: I cannot conceive of legislation that could constitutionally prevent plaintiffs with sensational personal injury damage claims from announcing those claims in any forum whatsoever. (Emphasis added).

Continue reading " Sacramento Family Seeks Punitive Damages For Birth Injury, Part 4 of 5 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

PLAINTIFF HAS PLEADED EACH AND EVERY ELEMENT OF A CAUSE OF ACTION
FOR WILFUL MISCONDUCT
Defendants David X., M.D. and Doctors Medical Group next demur to Plaintiff's third cause of action, for Wilful Misconduct.

Defendants' demurrer is replete with colloquy about how plaintiff has failed to plead any facts demonstrating that defendants' conduct rose above the level of mere negligence.

Defendants David X., M.D. and Doctors Medical Group have offered no judicial authority as to just why plaintiff's pleaded claim for wilful misconduct fails to meet the requirements of that well accepted tort.

The elements of wilful misconduct are as follows:
1. actual or constructive knowledge of the peril to be apprehended;
2. actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger; and
3. conscious failure to avoid the peril.

(Witkin, 6 Summary of California Law, 9th edition, Torts, section 761)

This standard was tested in New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681. New involved two motorcyclists who sued a landowner to recover for injuries sustained while they were riding their motorcycles on defendant's property. In upholding the jury's finding that defendant had acted wilfully or in conscious disregard of its duty to plaintiffs, the New court found that the trial court's instruction of wilful misconduct did no more than state the well-established objective component of the test of wilful misconduct. (New, supra at p. 681).

Continue reading " Wilful Misconduct By Sacramento Doctor Leads To Birth Injury, Part 3 of 5 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

ARGUMENT

IT IS WELL SETTLED THAT INCONSISTENT PLEADINGS ARE PERMITTED
Defendants' David X., M.D. and Doctors Medical Group's demurrer to Plaintiffs Complaint is based (initially) on the grounds that Plaintiffs first cause of action, for medical negligence, is duplicative of Plaintiff's second cause of action, for Wrongful Life.

It is well established that a plaintiff is entitled to plead inconsistent causes of action. Rader Co. v. Stone (1986) 178 Cal.App.3d 10.

Rader Co., supra, involved an appeal from an Order of dismissal following the sustaining of demurrers, without leave to amend.

In holding that inconsistent causes of action are appropriate, the Rader Co., supra, court, stated, at p.29, of 178 Cal.App.3d, as follows:

Moreover, Rader is not precluded by law from alleging in one cause of action the breach of a contract and an inconsistent theory of recovery in another cause of action. To the extent Rader's allegation in one cause of action of a fully executed contract with Stone is at odds with an allegation in a separate cause of action that PSR interfered in Rader's advantageous relationship with Stone, such inconsistency is not fatal to Rader's claims at the pleading stage, as a plaintiff is permitted to plead inconsistent or ..., alternative counts.

Continue reading " Mother and Daughter From Sacramento Sue for Birth Injury, Part 2 of 5 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' DAVID X., M.D, AND DOCTORS MEDICAL GROUP'S DEMURRER TO AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

INTRODUCTORY STATEMENT
In response to Plaintiff's Complaint, defendants David X., M.D. and Doctors Medical Group of Sacramento, California have filed a demurrer to, and Motion to Strike portions of, Plaintiff's Complaint.

Defendants' David X., M.D. and Doctors Medical Group argue that Plaintiff's First Cause of Action, for medical negligence, on the grounds that it duplicates the Second Cause of Action, for Wrongful Life.

As will be seen from the following Points and Authorities, inconsistent pleadings have long been permitted, and therefore defendants' David X., M.D. and Doctors Medical Group's demurrer, upon grounds of inconsistency, is without merit.

Defendants' David X., M.D. and Doctors Medical Group next contend that Plaintiff's Third Cause of Action, for Wilful Misconduct, fails to state facts sufficient to state a cause of action for this tort.

Again, as demonstrated by the following Points and Authorities, Plaintiff has properly pleaded each and every element of a cause of action for Wilful Misconduct, and defendants' assertions to the contrary are specious.

Continue reading " Sacramento Physician Sued For Causing Birth Injury, Part 1 of 5 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

DEFENDANTS' DESTRUCTION OF CRUCIAL RECORDS OR PREVARICATION ABOUT FACTS MAY SUPPORT EVIDENTIARY SANCTIONS OR AN INFERENCE OF LIABILITY
Universal's failure to produce legible copies of the fetal monitor strips is the equivalent of a failure to produce evidence and will support an evidentiary sanction so that the defendant cannot benefit from loss of the evidence. Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3d 877, 885, 217 Cal.Rptr. 602 (even unintentional loss of evidence justifies evidentiary sanctions sufficient to cure any advantage that party might gain over opponent); Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 739, 149 Cal.Rptr. 499; Caryl Richards Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 305, 10 Cal.Rptr. 377; Newland v. Superior Court (1997) 40 Cal.App.4th 608, 47 Cal.Rptr.2d 24.

Such orders may put the requesting party in the position it would have been in had the requested discovery been entirely favorable (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 227, 240 Cal.Rptr. 489, excluding all evidence of economic loss as sanction for failure to produce financial documents), or preclude any evidence which might have been impeached by the destroyed matter. People v. Michael L. (1984) 151 Cal.App.3d 1052, 199 Cal.Rptr. 207.

A jury may find that the hospital's records or Dr. X.'s account of the birthing procedure are so far from the actual facts as to constitute willful misrepresentation, or that they willfully falsified the medical records so as to conceal what really happened. A false exculpatory statement can be evidence of consciousness of liability, and evidence that a party falsely denied knowledge of a fact permits the jury to infer that he or she had guilty knowledge. Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1841, 41 Cal.Rptr.2d 192; Evidence Code §413; Biondi v. Amship Corp., supra, 81 Cal.App.2d 751.

Continue reading " Sacramento Physicians Mishandle Baby During Delivery Resulting In Birth Injury, Part 12 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

EVIDENCE OF TREATMENT BELOW THE STANDARD OF CARE REQUIRES DENIAL OF THE MOTION
The fundamental rule on summary judgment is that the motion may not be granted where there is any triable issue as to a material fact. There is direct controverting evidence as to defendants' neglect, and a clear causal connection between that neglect and the injuries suffered by Sean Taylor.

In a medical malpractice action involving a birthing injury against a hospital and delivering obstetrician, the appellate court reversed a non-suit granted to defendants based on plaintiffs' failure to sufficiently establish the element of causation. Espinoza v. Little Company of Mary Hospital (1995) 31 Cal.App.4th 1304, 37 Cal.Rptr.2d 541. The Court addressed the nature of plaintiffs burden of proof as follows:

Although a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is some substance to plaintiff’s evidence upon which reasonable minds could differ.... [Citations.] (Carson v. Facilities Development Co., supra, 36 Cal.3d at pp. 838-839, 206 Cal.Rptr. 136, 686 P.2d 656.) If the existence of facts sufficient to support a recovery can logically and reasonably be inferred from the evidence, the motion must be denied, regardless of whether the evidence is also susceptible to conflicting inferences. [Citation.]... When there is doubt in the court's mind about the inferences that may reasonably be drawn from the evidence it is the duty of the court to let the case go to the jury. [Citations.] [Citation.] (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611, 278 Cal.Rptr. 900, emphasis added.) [31 Cal.App.4th at 1313]

Continue reading " Malpractice At Sacramento Hospital Causes Birth Injury, Part 11 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

The declaration of defendant's expert herein is no more enlightening than that in Kelley as to the merits of Plaintiffs' case. The defense expert simply attests that he read the records and did not see anything in it that fell beneath the standard of care. He recites, for example, that the Woods corkscrew maneuver in the McRoberts position was applied, without any evidence that it was properly performed. In effect, he regurgitates the hearsay of the records and announces that the records do not contain any admission of neglect.

Nor has Universal's expert demonstrated his competence to attest to the standard of care governing nurses, stated what that standard is so that the Court can assess his opinion, or established that there is no evidence of nurse neglect in the Woods or McRoberts procedures.

Universal's failure to give its expert the photographs taken during delivery actually supports an inference against it. Hagy v. Allied Chemical & Dye Corp. (1953) 122 Cal.App.2d 361, 372, 265 P.2d 86 (defendant's failure to provide its expert with data regarding concentration of toxic fumes supports inference against it); Biondi v. Amship Corp. (1947) 81 Cal.App.2d 751, 185 P.2d 94.

Continue reading " Baby Injured During Delivery Due To Sacramento OB/GYN's Malpractice, Part 10 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

UNIVERSAL'S EVIDENCE FAILS TO CARRY ITS BURDEN AS TO DIRECT LIABILITY
Universal relies upon the recitation of medical records in the declaration of Peter Fine, concluding with the opinion that the conduct described therein complies with the standard of care. As Kelley v. Trunk (1998) 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122, held, conclusory declarations without sufficient factual foundations are not sufficient to demonstrate the absence of a triable issue regarding standard of care.

In Kelley, the defendant physician submitted an expert declaration citing the records reviewed and then, after three paragraphs describing the records, announcing that At all times.. Dr. Trunk acted appropriately and within the standard of care under the circumstances presented. (Id. at 522) The Court of Appeal found that the declaration was inadmissible and failed to carry defendant's burden on summary judgment.

Expert witnesses normally testify concerning the bases for their opinions, and the court may require the expert to state the bases before giving his opinion. (See Evid.Code, §§802.) Standard instructions give juries the common sense directive that [a]n opinion is only as good as the facts and reasons on which it is based.' (BAJI 2.40.) An expert's opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. (Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58, 45 Cal.Rptr. 129,403 P.2d 385; Griffith v. County of Los Angeles (1968) 267 Cal.App.2d 837, 847, 73 Cal.Rptr. 773 [expert opinions, though uncontradicted, are worth no more than the reasons and factual data upon which they are based]; BAJI 2.40 [ [Y]ou may not arbitrarily or unreasonably disregard the opinion testimony... which was not contradicted ... unless you find that it is not believable... ].)
Applying the foregoing standards here, we conclude that summary judgment was improperly granted.

Continue reading " Child Suffers Birth Injury At Sacramento Hospital, Part 9 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

Nothing in the moving papers addresses the question of whether Universal complied with its duty to assure the competence of physicians - including Dr. X. - practicing in its facilities. The bare assertion that plaintiffs cannot prove their anticipated claim is an improper attempt to shift initial burden to the responding party. To support summary judgment on a theory that plaintiff has no evidence to prove an element of his case (Rio Linda School District v. Superior Court (1997) 52 Cal.App.4th 732, 735, 60 Cal.Rptr.2d 710, Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 37 Cal.Rptr.2d 653), it is not enough to simply suggest that plaintiff cannot prove its case. Certain Underwriters at Lloyd's of London v. Superior Court (1997) 56 Cal.App.4th 952, 955-957, 960, 65 Cal.Rptr.2d 82.

Allowing the moving party to allege that the opposing party has no evidence would effectively place an initial burden upon the opposing party that would directly contradict the procedure for burden shifting expressly set forth in the amended statute. Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 81, 81 Cal.Rptr.2d 360. The moving party is required to make an affirmative showing of the absence of evidence to establish a prima facie case. (Id. at 83) To do so, the moving defendant should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186, 48 Cal.Rptr.2d 197. The burden does not shift until a review of all direct, circumstantial and inferential evidence available to the moving defendant establishes the absence of evidence to support the plaintiffs cause of action. Scheiding, supra, 69 Cal.App.4th at 83.

Continue reading " Physician At Hospital In Sacramento Sued For Medical Malpractice, Part 8 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

Universal Presents No Evidence Whatsoever as to Elam Liability
Universal's motion asserts that plaintiff has no evidence to support its liability under Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 183 Cal.Rptr. 156, under which a hospital may be held responsible for the negligent conduct of independent physicians who, based on their staff privileges, avail themselves of the hospital's facilities. Universal presents no evidence that it did anything to assure the competence of physicians practicing there, and thus offers nothing to disprove its liability under the Elam theory. It does not even raise the matter in its Separate Statement.

Elam recognizes, first, that case precedent establishes a hospital has a duty of reasonable care to protect patients from harm .., including the discovery and treatment of their medical conditions. Secondly, Elam holds that as a general principle, a hospital's failure to insure the competence of its medical staff through careful selection and review creates an unreasonable risk of harm to its patients. (Id. at 340) Reviewing the controlling statutes and regulations, the Court noted that:

Regarding staff selection, although the medical staff is to be self-governing, a hospital must provide procedures for selection and reappointment of the medical staff in accordance with JCAH standards, implying investigation of competency for initial appointment and periodic review of competency before reappointment. The hospital's duty to guard against physician's incompetency is further implied by requiring renewal of staff privileges at least every two years (implying a periodic competency review) and the periodic review of the medical records of hospital patients. Although these reviews are conducted by medical staff peer committees, the governing body of the hospital is responsible for establishing the review procedures. Finally, [Health and Safety Code] §32128 provides that the hospital rules shall include [s]uch limitations with respect to the practice of medicine and surgery in the hospital as the board of directors may find to be in the best interests of the public health and welfare... [Id. at 342]

In summary, we hold a hospital is accountable for negligently screening the competency of its medical staff to insure the adequacy of medical care rendered to patients at its facility. (Id. at 346)

Continue reading " Sacramento OB/GYN Sued For Birth Injury, Part 7 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

UNIVERSAL FAILS TO CARRY ITS INITIAL BURDEN ON SUMMARY JUDGMENT
On motion for summary judgment, defendant has the burden of producing evidence negating a necessary element of the plaintiff's case or establishing an affirmative defense. To succeed, a defendant moving for summary judgment must conclusively negate a necessary element of the plaintiffs case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial. Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1190, 260 Cal.Rptr. 49; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 10 Cal.Rptr.2d 748. Defendant must establish that there is no triable issue of fact with respect to any basis for liability under the complaint. United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 338, 282 Cal.Rptr. 368. The defendant has the burden of establishing that there was no room for a reasonable difference of opinion ... Rosh v. Cave Imaging Systems. Inc. (1994) 26 Cal.App.4th 1225, 1235, 32 Cal.Rptr.2d 136.

Where the Complaint alleges matters upon which a breach of duty may be based, failure of the moving party to address each factual theory supportable under the Complaint precludes summary judgment. Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 715-716, 52 Cal.Rptr.2d 821; Villa v. McFerren (1995) 35 Cal.App.4th 733, 741-746, 41 Cal.Rptr.2d 719. Where matters on which liability may be based are not conclusively disposed of by the moving papers, the motion must be denied even without opposition. Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830, 20 Cal.Rptr.2d 296.

Continue reading " Medical Malpractice Claim By Sacramento Family For Birth Injuries, Part 6 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

C.C.P. §340.5 GOVERNS DELIVERY MALPRACTICE AND EXTENDS THE LIMITATIONS PERIOD TO THE CHILD'S EIGHTH BIRTHDAY
It is firmly established that an infant's claim for medical malpractice - whether the injury is prior to, contemporaneous with or subsequent to birth - is subject to the limitations period of C.C.P. §340.5, governing medical malpractice actions generally and medical malpractice actions by minors specifically, and that C.C.P. §340.4 has no bearing on such actions.

3 Witkin, Cal. Procedure 4th, Actions §542, discussing prenatal injuries, observes that C.C.P. §340.5, part of the Medical Injury Compensation Reform Act, does not expressly refer to former Civil Code §29 or C.C.P. §340.4, but supplants their period of limitations in medical malpractice actions. (Emphasis in original.) Haning, Flahavan, Kelly, et al., California Practice Guide - Personal Injury (Rutter 2006) §5:138, likewise states:

Neither C.C.P. §352 nor C.C.P. §340.4 applies to minors' actions predicated on medical malpractice. Even if the claim alleges prenatal injury, the altogether different limitations period contained in C.C.P. §340.5 is controlling. [Young v. Haines (1986) 41 Cal.3d 883, 226 Cal.Rptr. 547; Photias v. Doerfler (1996) 45 Cal.App.4th 1014, 1018-1020, 53 Cal.Rptr.2d 202, 204-205]

Hence, C.C.P. §340.4 governs prenatal injuries from general negligence, products liability, etc., but not medical malpractice. It was enacted to abolish the common law rule that an unborn child has no independent existence and, therefore, no right of action for injuries suffered before its birth, but at a time when there was no distinction in limitations rules between medical malpractice and other negligence claims. Young v. Haines (1986) 41 Cal.3d 883, 892, 226 Cal.Rptr. 547. 5 Witkin, Summary Cal. Law 10th, Torts, §728, pg. 1053. The adoption of MICRA in 1975, with its distinct limitations rules, overrode any role that §340/4 might have had in medical malpractice cases.

Continue reading " Severe Birth Injury Due To Malpractice In Sacamento, Part 5 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

William Taylor describes his wife's legs as still in the stirrups while she was being instructed to again push, after which the baby's head popped out all the way to the neck before the shoulders. If a proper McRoberts position had been performed the mother's legs would have not remained in the stirrups.

Mr. Taylor saw Dr. Y. grab the infant by the head, with her thumb on his forehead and a hand around his neck, and turn him to the left. She was holding her hands outside the body and around the neck area. She did not go inside the vagina. A photograph clearly depicts the infant's head fully out of the vagina, facing upward, and shows the physician's hands around the head and necks, fully outside the vagina. This does not depict the Woods maneuver described in the Delivery Notes. The maneuver described by the father, and depicted in the photograph is beneath the standard of care in that it allows excessive rotation of the neck, which can cause the Erb's Palsy and brachial plexus injury that is described in Sean Taylor's records. Mr. Taylor saw Dr. X. turn the baby to the left causing a popping sound, leading Mr. Taylor to believe that Sean's neck may have been broken. Dr. Z. concludes that it is probable that this was the brachial plexus injury leading to the Erb's Palsy suffered by Sean, caused by excessive force and improper traction on the head and neck during the delivery.

Critical to the hospital's liability is the fact that the mother was not in the correct McRoberts position, but had her legs in the stirrups. The positioning of the mother for this procedure is the responsibility of the nurses, who assuredly should have recognized that the procedure was no being properly performed, and who assisted in this mangled form of delivery notwithstanding that the problems would have been evident to any obstetrics specialist present.

Continue reading " Medical Malpractice At Sacramento Hospital Leads To Birth Injury, Part 4 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

Sean's father, William Taylor, was present in the delivery room and photographed the delivery. His deposition testimony, and his photographs, provide direct evidence that is in direct conflict with the events described by Dr. X. in her delivery notes.

Q. Okay. Did he come out straight, his head, or was he sideways?

A. He came out straight. After she cut and told her to push, then his head came out just like I'm looking up straight up at the ceiling. It came out like that and stopped.

Q. Then what happened after his head came out?

A. She grabbed him by the forehead and put her hands around the neck part.

Q. Then what happened after his head came out?

A. She grabbed him by the forehead and put her hands around the neck part.

Q. You said grabbed him on the forehead?

A. Put her thumb on the forehead, you know, like you grab a football. You would grab a head like this, like -- I know you can't put like this on here (indicating). She grabbed his head and had her thumb on the forehead and had her hand around his neck, and then she turned him.

Q. So one hand, then was on his head; and the other hand was on his neck?

A. Right.

Q. Which hand was on his head?

A. I can't recall. I think it was the right hand. I think. I'm giving you an estimate.

Q. I don't want you to guess.

A. Well, I can't tell you for sure which hand was on his forehead.

Q. You do know that one hand was on his head and one hand was on his neck, correct?

A. That's right. That's correct.

Continue reading " Botched Delivery Results In Birth Injury For Sacramento Family, Part 3 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

STATEMENT OF THE CASE
This is medical negligence action arises out of serious nerve injury suffered by Sean Taylor during birth on 6/4/1998. Sean's mother, Edith Taylor, was under the care of obstetrician Dr. Vanessa X. when she was admitted to Sacramento's Universal Medical Center at 1:15 p.m. on June 3, 1998. Edith Taylor was then in early labor, at almost 41 weeks, based upon an estimated date of confinement of 5/29/98.

Dr. X. ordered induction of labor by Pitocin drip and artificial rupture of Edith's membrane, which reportedly resulted in the release of clear amniotic fluid. Epidural anesthesia was begun, and labor continued throughout the balance of that day and into the early morning hours of June 4. During that time, the patient was started on antibiotics for a temperature of 101.

At 3:40 a.m. on June 4, Pitocin was discontinued, and at 4:00 a.m. a vaginal examination revealed that the patient was 9 cm dilated and at 1 station. I.V. antibiotics were continued and the mother was instructed to continue pushing to assist in delivery, which occurred at 5:10 a.m.

The Popras 6 form for Delivery Data and Problems lists shoulder dystocia as a birth complication. The one minute Apgar scores were zero score for respirations, muscle tone and color, requiring emergency resuscitation. Erb's Palsy was noted at birth

Continue reading " Obstetrician Responsible For Birth Injury At Sacramento Hospital, Part 2 of 12 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)

Plaintiffs' Memorandum of Points and Authorities in Opposition to the Motions for Summary Judgment of Universal Medical Center and Vanessa X., M.D.

INTRODUCTION
Universal's statute of limitations argument has been clearly and conclusively rejected by the Supreme Court of this state, as well as all relevant decisions of the intermediate courts. An infant's claim for medical malpractice resulting in birth injuries is governed by C.C.P. §340.5, not §340.4 and may be filed at any time prior to the child's eighth birthday.

Universal’s contention that there is no evidence supporting its liability under the Elam rule requiring a hospital to assure the competence of physicians and surgeons with staff privileges is unsupported by even the hint of evidence, and the failure to negate such liability means that the

Court is required to deny the motion as to substantive grounds of no liability. The claim that there was no neglect in the provision of medical care is flatly contradicted by percipient and photographic evidence, and the assertion that there was no causal connection between that care and the minor's injuries is frivolous. This Court so held in denying the motion for summary judgment of Defendant Vanessa X., M.D. on May 15, 2007. This child suffered exactly the injuries that would be expected from the dangerous and improper extraction of the baby in the McRoberts position by twisting his head to extract him from the birth canal.

Continue reading " Sacramento Family Sues For Birth Injury, Part 1 of 12 " »