Sacramento Birth Injury Lawyer Blog

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(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.)

It was exactly this type of NIED claim that led to the Supreme Court's unanimous opinion in Bird v. Saenz (2000) 28 Cal.4th 910, and bears repeating. There, the Supreme Court acknowledged the crucial point the Court of Appeal had overlooked - lay people, as a general rule, necessarily lack the ability to meaningfully comprehend medical errors when they occur. Being distressed by watching medical care rendered to a loved one is not enough to state a claim:
The Court of Appeal did not explain how a bystander without medical acumen, except in the most extreme case...could meaningfully be aware that a course of treatment is causing injury. In any event, a rule permitting bystanders to sue for NIED on account of unperceived medical errors hidden in a course of treatment cannot be reconciled with Thing's requirement that the plaintiff be aware of the connection between the injury-producing event and the injury. The Court of Appeal's rule would, moreover, impose nearly strict liability on health care providers for NIED to bystanders who observe emotionally stressful procedures that turn out in retrospect to have involved negligence. We may reject such a rule as inconsistent with Thing.

Thus, allowing the father to amend is futile, because he could not possibly have witnessed or meaningfully comprehended the transmission of a latent bacterial infection from mother to child during birth. The only way he could have known about the infection is to be told about it after the fact. The demurrer to his NIED claim should be sustained without leave to amend.

Continue reading " Sacramento Hospital Sued For Medical Negligence After Girl's Birth Injury, Part 4 of 4 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(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' DIRECT VICTIM THEORY WAS AN AFTERTHOUGHT, NOT SUPPORTED BY THE PRESENT ALLEGATIONS.
It bears repeating that the parents' status as "direct victims" was not pled, either directly or by reasonable inference. The only theory postulated by the parents to support their NIED recovery is based upon bystander status.) In order to pursue any direct victim claim they first have to plead it, which they did not do. The demurrer should be sustained on that basis.

THE FATHER CANNOT STATE A RIGHT TO RECOVER AS A DIRECT VICTIM AS A MATTER OF LAW, BECAUSE HE IS NOT A PATIENT.
The plaintiff-parents cite Burgess v. Superior Court (1992) 2 Cal.4th 1064 and Zavala v. Arce (1997) 58 Cal.App.4th 915 as support for their status as direct victims. Assuming leave to amend is granted, because the plaintiff-mother was a patient of Dr. Brown, she may qualify under Burgess as a direct victim; however, the father cannot possibly qualify.

So-called "Burgess" NIED recovery stemming from birth injury to a child is allowed only for the mother. This is because both mother and fetus are owed a duty of care, as both are the obstetrician's patients. No case has allowed a father to recover as a direct victim for injuries to a child during birth, because he is not a patient. Rather, in order for a father to sue for NIED based upon birth injury to a child, he must satisfy the bystander criteria.

Continue reading " Parents From Sacramento Witness Birth Injury To Daughter, Part 3 of 4 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(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 the absence of an express contract warranting a specific result, lawsuits against physicians resulting from negligent treatment are not based in contract, but in tort. Ibid; Custodio v. Bauer (1997) 251 Cal.App.2d 303; Schwartz v. Regents of the University of California (1990) 226 Cal.App.3d 129-father denied recovery for emotional distress as the alleged direct victim of a psychotherapist even though he participated in counseling sessions to improve the family relationship. The court also held that the simple existence of a contract between a parent and a medical caregiver to provide medical treatment for a child is not in itself sufficient to impose on the caregiver a duty of care owed to the parent. (Id. at 168.)

This was confirmed nearly forty years ago:
It is thoroughly settled in California that In the absence of an express contract the physician or surgeon does not warrant cures. By taking a case he represents that he possesses the ordinary training and skill possessed by physicians and surgeons practicing in the same or similar communities, and that he will employ such training, care, and skill in the treatment of his patients. In the absence of an expressed contract the general rule is applicable that those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.’ Custodio v. Bauer, supra, at 314-315

Any doubt about the parents inability to qualify as direct victims stemming from a contract is resolved by our Supreme Court in Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124. There the appellate court reversed a summary judgment granted to the defendant-pharmacy against the parents of an infant injured by medication the parents administered to him, based upon the pharmacist's erroneous directions to the parents who, unwittingly, administered five times the appropriate medication dose.

Continue reading " Sacramento Doctor's Negligence Results In Birth Injuries, Part 2 of 4 " »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(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.)

REPLY OF DEFENDANT KENNETH BROWN, M.D., TO PLAINTIFFS' OPPOSITION TO DEMURRER

This medical malpractice case involves allegations that the defendants negligently provided medical treatment causing the transmission of the bacteria Group B streptococcus to pass to [the minor-plaintiff] during birth.

The plaintiff-parents now deny they tried to allege a negligen infliction of emotional distress (NIED) cause of action based upon a bystander theory, though the allegations clearly demonstrate that was their intent. Rather, the plaintiff-parents argue that they stated a right to recover for NIED based upon a contractual direct victim duty. They have pleaded no direct victim claim, directly or by reasonable inference. The demurrer should be sustained, and as to the father, without leave to amend.

NO DUTY TO THE PARENTS CAN BE PREMISED UPON CONTRACT.
Plaintiffs cannot circumvent the body of law pertaining to parasitic NIED claims, by a bare allegation that their claim arises out of a duty imposed by a so-called contract. Plaintiffs argue that a contractual relationship was pled at paragraph 11 of their complaint, though review of those allegations seems to demonstrate otherwise. Even had plaintiffs plead the existence of a contract, the result is still the same, no tort duty can be premised thereon.

Continue reading " Parents Of Sacramento Newborn File Action for Birth Injury, Part 1 of 4 " »