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/personal injury case and its proceedings.)

In Zavala v. Arce. 58 Cal.App.4th 915, 68 Cal.Rptr.2d 571 (4th Dist. 1997) an individual brought a medical malpractice action against her former obstetrician arising from the in utero death of plaintiff’s post-term fetus, seeking emotional distress damages on a "direct victim" theory of liability. The trial court granted summary judgment for defendant.

The Court of Appeal reversed the judgment and remanded the case to the trial court for further proceedings. The court held that the trial court, in granting summary judgment for defendant, erred in ruling as a matter of law that plaintiff could not state a claim for direct victim emotional distress damages. Because a pregnant woman who experiences negligent antenatal care is no bystander but a "direct victim" instead, the strictures of Thing v. La Chusa do not apply, and she may sue for her emotional distress even if she did not realize, while it was going on, that her doctor was acting negligently.

CONCLUSION
The plaintiffs cause of action is based on a direct victim rationale and not a bystander theory. The limitations asserted in Thing v. La Chusa are not applicable as for they only deal with actions asserted under a bystander theory. The plaintiffs pleadings are sufficient and the court should overrule the defendants’ demurrer.

Continue reading " Sacramento Hospital's Medical Negligence Results In Girl's Birth Injuries, Part 3 of 3 " »

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

The plaintiffs allege in paragraph 11 of their complaint that a contractual relationship existed between "plaintiffs and said defendants." Further, in paragraph 14 of the complaint it is alleged that the defendants negligently cared for plaintiff causing injury. Therefore a cause of action for medical negligence was pleaded for the plaintiff-parents due to the birth injury.

In Burgess v. Superior Court. 2 Cal.4th 1064, 1073, 9 Cal.Rptr.2d 615, 618, P.2d 1197 (1992) A mother filed a medical malpractice action against an obstetrician and a hospital after her child suffered permanent brain and nervous system damage, allegedly as a result of oxygen deprivation during the delivery. Defendants brought a motion for summary adjudication that the mother was not entitled to recover damages for emotional distress, since she did not contemporaneously observe the baby's injury as required for recovery in a bystander situation. The trial court granted defendants' motion. The Court of Appeal, granted the mother's petition for a writ of mandate to vacate the trial court's order, concluding that the mother was a "direct victim" rather than a bystander.

The Supreme Court modified the judgment of the Court of Appeal to direct the trial court, in addition to reversing its order of summary adjudication, to enter an order in accordance with the views expressed in the Supreme Court's opinion. The court held that the negligent causing of emotional distress is not an independent tort, but the tort of negligence, with the traditional elements of duty, breach of duty, causation, and damages. The court also held that in contrast to bystander cases in which a plaintiff seeks to recover for emotional distress caused by being a percipient witness to the injury of another, "direct victim" cases are those in which damages for serious emotional distress are sought as a result of a breach of duty owed to the plaintiff arising from a preexisting relationship between the plaintiff and the defendant. Inasmuch as the obstetrician owed a duty of care to the mother to avoid injuring her child, which arose from their physician-patient relationship, the obstetrician's alleged negligence breached a duty of care owed to the mother.

Continue reading " Newborn From Sacramento Suffers Birth Injuries, Part 2 of 3 " »

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

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO DEFENDANTS’ DEMURRER

INTRODUCTION
This is a medical malpractice action brought by plaintiffs Donna Smith and Peter Smith, the parents of their infant child Amanda Smith for medical malpractice arising out of the delivery and birth of Amanda. The negligence occurred as a result of the delivering doctor, Kenneth Brown, M.D. and Universal Hospital failure to administer antibiotics prior to delivery knowing that mother, Donna Smith was Group B Strep Positive. As a result of this negligence the virus was passed to the child and resulted in sepsis which required the child to be admitted to Neonatal Intensive Care Unit for 6 days.

The Plaintiffs filed a complaint for medical negligence and negligent infliction of emotional distress with this court on August 12, 2004. The Defendant Universal Hospital provided an answer on October 1, 2004. The Defendant Kenneth Brown, M.D., has responded with this demurrer claiming the parents Peter Smith and Donna Smith do not fit the criteria to recovery as under the bystander theory . Specifically the demurrer is based on the plaintiff-parents failure to satisfy the second prong of the three part test established in Thing v. La Chusa (1989) 48 Cal.3d 644.

PLAINTIFFS’ ACTION IS PREMISED ON A DIRECT VICTIM RATIONALE AND NOT BASED ON A BYSTANDER THEORY

Plaintiff-parents Peter Smith and Donna Smith assert that their right to bring a negligence action on a contractual direct victim rationale and not based on a bystander theory. A physician-patient contract existed between the parents and the defendant obstetrician with an end and aim of the birth of a healthy child and a normal reproductive experience for the parents.

Continue reading " Sacramento Parents Sue Physician For Daughter's Birth Injuries, Part 1 of 3 " »