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 medical malpractice/birth injury case and its proceedings.)

The Elements That Plaintiffs Must Prove To Establish A Prima Facie Case.

In CACI No. 513, the elements for proving a wrongful life claim are virtually identical to the elements required for proving a wrongful birth claim (CACI No. 512). The wrongful life elements are as follows:

[Plaintiff] claims that [defendant physician] was negligent because [he/she] failed to inform [p]laintiff]'s parents of the risk that [he/she] would be born [genetically impaired/disabled]. To establish this claim, [plaintiff] must prove all of the following:

1. That [defendant] negligently failed to diagnose and warn [plaintiff]'s parents that their child would probably be born with a [genetic impairment/disability];
2. That [plaintiff] was born with a [genetic impairment/disability];
3. That if [plaintiff]'s parents had known of the hereditary ailment or disability, [his/her] mother would not have conceived [him/her][or would not have carried the fetus to term]; and
4. That [plaintiff] will have to pay extraordinary medical or training expenses because of [his/her][genetic impairment/disability]. (CACI No. 513.)

Continue reading " Sacramento Mother And Child Face Consequences After Wrongful Birth, Part 5 of 10 " »

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

THE NATURE OF WRONGFUL LIFE/ WRONGFUL BIRTH ACTIONS

Wrongful Life And Wrongful Birth Actions Are Forms Of Professional Negligence Claims.

The courts in California recognize wrongful life and wrongful birth as a particular variety of the more common cause of action for professional or medical malpractice. (Barragan v. Lopez (2007) 156 Cal.App.4th 997, 1004.) The plaintiff in a wrongful life or wrongful birth action, like the plaintiff in a garden-variety professional negligence claim, must prove the following elements: (1) Defendant owed plaintiff a duty to use such skill, prudence and diligence of other members of his profession; (2) Defendant breached that duty; (3) A causal connection between the breach and any injury; and (4) Actual loss or damage resulting from the professional negligence. (Ibid.)

But the gravamen of the wrongful life/ wrongful birth claim is the claim that the child is born impaired with a genetic defect or medical condition and but for the defendant's negligence, the child would not have been born to suffer the defect. (Ibid.) Stated differently, wrongful life/ wrongful birth actions are essentially actions for malpractice based on negligent genetic counseling and testing. (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 883.)

The term wrongful life generally refers to an action brought by the child to recover damages incurred as a result of being born with the medical condition. (Turpin v. Sortini (1982) 32 Cal.3d 220, 225.) The term wrongful birth generally refers to an action brought by the parents to recover damages allegedly incurred as a result of the child being born impaired. (Turpin v. Sortini (1982) 31 Cal.3d 220, 225.) Here, this is a wrongful life action brought by the child plaintiff although the mother plaintiff also sues for negligence.

Continue reading " Wrongful Birth Suit Filed By Sacramento Family, Part 4 of 10 " »

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

SUMMARY OF PLAINTIFFS' INCORRECT THEORIES OF LIABILITY

Plaintiffs' primary theory of liability against Universal Hospital Medical Center is one of imputed liability based on an incorrectly collapsed theory of two separate and distinct tort principles: (1) Ostensible agency; and (2) Liability for subsequent negligent medical treatment.

Plaintiffs will begrudgingly admit that Dr. Brown was not an employee of Universal Hospital but they claim he was the ostensible agent of Universal Hospital Medical Center. According to plaintiff's, Universal Hospital is therefore liable for the wrongful acts and omissions of Dr. Brown. In addition, however, plaintiff's also take the position that because Dr. Brown's liability for plaintiff's' damages is imputed to Universal Hospital under ostensible agency concepts, Universal Hospital becomes an original tortfeasor who is then also liable for the injuries allegedly incurred as a result of all subsequent negligent medical treatment.

Plaintiffs claim, in effect, that even in the absence of actual fault, Universal Hospital Medical Center becomes vicariously, vicariously liable for the injuries allegedly caused by all defendants other than Dr. Brown, too.

Continue reading " Malpractice By Sacramento Physicians Results In Birth Injuries, Part 3 of 10 " »

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

SUMMARY OF FACTS

The undisputed facts follow. Patty Smith was a 36-year-old female who was three months pregnant when she came to the emergency department within Universal Hospital. This was not Mrs. Smith's first pregnancy, she had two children previously. Mrs. Smith underwent genetic counseling and testing, including AFP and amniocentesis, for advanced maternal age and Down Syndrome pregnancy a year or so before this pregnancy.

At the emergency department on May 5, 2005, Mrs. Smith complained of bleeding, cramping and the passage of a large blood clot. An ultrasound was performed and disclosed an almost 14-week pregnancy - a normal pregnancy. Mrs. Smith was so informed.

The emergency department physician, defendant Steven Brown, M.D. - not an employee of Universal Hospital Medical Center - then incorrectly informed Mrs. Smith that the ultrasound was negative for pregnancy, apparently telling her that there was a complete abortion. Mrs. Smith was discharged home with instructions to see her private physician within 24 hours for a re-evaluation.

Mrs. Smith went to Sacramento Medical Center the same morning of her discharge from the hospital. She saw defendant Ava Green, P.A. Mrs. Smith told Ms. Green that she was seen at Universal Hospital, had an ultrasound and was told that she had a complete abortion. Ms. Green advised pelvic rest for Mrs. Smith and asked Mrs. Smith to return in 10 days for family planning. When Mrs. Smith returned on May 16, 2005, Ms. Green performed a physical examination. She did not detect the ongoing pregnancy, which was obvious. Ms. Green did not order an ultrasound.

Continue reading " Doctors From Sacramento Misdiagnose Potential Birth Injuries, Part 2 of 10 " »

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

UNIVERSAL HOSPITAL'S TRIAL BRIEF REGARDING PRINCIPLES OF WRONGFUL BIRTH, OSTENSIBLE AGENCY, AND APPORTIONMENT OF FAULT

MEMORANDUM OF POINTS AND AUTHORITIES

SUMMARY OF ALLEGATIONS

Plaintiff Oliver Smith, a minor, by and through his guardian ad litem, Mike Smith, ("plaintiff Oliver") and plaintiff Patty Smith ("Mrs. Smith") seek damages for injuries allegedly resulting from the provision of medical care and treatment to Mrs. Smith during her pregnancy with her son. Specifically, plaintiff's allege the defendants were negligent in the pre-natal care of Mrs. Smith and, as a consequence, the baby was born with Down Syndrome.

The operative complaint states two causes of action by plaintiff Oliver and against Universal Hospital: (1) Professional negligence; and (2) Wrongful birth. Plaintiff Oliver alleges that Mrs. Smith hired the defendants to diagnose and treat her pregnancy and to provide pre-natal care, testing and advice. According to the allegations, the defendants were so negligent in the provision of care to Mrs. Smith that: (1) Mrs. Smith was not given the opportunity for MS-AFP testing; (2) Mrs. Smith was not offered the option of terminating the pregnancy; and (3) Plaintiff Oliver was born a Down Syndrome baby. According to the allegations of the complaint, but for the negligence of defendants, plaintiff Oliver would not have been born at all.

Continue reading " Sacramento Family Sues For Child's Birth Injuries, Part 1 of 10 " »