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.)

In Marina Emergency Medical Group v. Superior Court (2000) 84 Cal.App.4th 435, the defendant emergency room doctor was negligent in treating plaintiff's lacerated thumb and that injury was later aggravated by the negligence of plaintiff's personal physician. (Id. at p. 437.) At the trial against the ER doctor only, plaintiff successfully moved to exclude all evidence of the subsequent medical treatment, preventing the jury from allocating fault among the various individuals responsible for plaintiff's injury. (Id. at pp. 437-438.)

On appeal, plaintiff argued the ER doctor was an "original tortfeasor who was vicariously" liable to plaintiff for the subsequent tortfeasor's negligence. Therefore, according to plaintiff, the successive tortfeasor liability law eliminated the requirement of apportionment of fault under Proposition 51 in the same manner as respondeat superior eliminated apportionment in employer/employee cases. (Id. at p. 440.) The Second District Court of Appeal disagreed and held that the ER doctor was allowed to reduce his liability to plaintiff through apportionment of fault among all responsible parties.

The Marina Court distinguished the line of cases involving pure respondeat superior (i.e., employer/employee) or imputed liability based on statute. The Marina Court correctly recognized that the "subsequent medical treatment" liability theory is not vicarious liability as that term is normally understood. The original tortfeasor's liability for subsequent negligence is not derivative of the subsequent tortfeasor's conduct. (Id. at p. 440.) Rather, the law holds the original wrongdoer liability because it regards the subsequent medical treatment to be proximately caused by the original injury. (Ibid.)

Continue reading " Family Seeks Recovery From Sacramento Doctors For Birth Injuries, Part 10 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 JURY IS REQUIRED TO APPORTION FAULT AMONG THE UNIVERSE OF TORTFEASORS

Since the late 1970's California adopted a comparative fault system for tort liability whereby plaintiff's recovery in damages can be reduced in proportion to plaintiff's fault for the injury and defendants became jointly and severally liable for plaintiff's injury. (Wimberly v. Derby Cycle Corporation (1997) 56 Cal.App.4th 618, 625.) But these comparative fault principles allowed for defendants with virtually no share of fault with the obligation to pay the lion's share of plaintiff's damages. (Id. at p. 626.)

In 1986, Proposition 51 was passed by the voters and, as a result, Civil Code section 1431.2 now provides that each defendant shall be liable only for the amount of plaintiff's "non-economic damages" allocated to that defendant in direct proportion to that defendant's percentage of fault. (Civ. Code, § 1431.2.)

Since the passage of Proposition 51, there are a few instances where the courts will not apply Proposition 51 to apportion liability among the defendants to reduce a defendant's liability to plaintiff using comparative fault principles. For example, where there is true vicarious liability between an admitted employer and an employee, the courts will not apply Proposition 51 to reduce the employer's liability to plaintiff for the employee's wrongful conduct. (Miller v. Stouffer (1992) 9 Cal.App.4th 70, 84.) The same is true in the permissive user/vehicle owner context. (Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847.)

Continue reading " Sacramento Family Seeks Damages For Medical Malpractice, Part 9 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 IS NOT LIABLE FOR THE CONDUCT OF SUBSEQUENT TORTFEASORS AND, THEREFORE, PLAINTIFFS' DOUBLY-IMPUTED LIABILITY THEORY LACKS MERIT

As stated above, plaintiff's contend that not only is Dr. Brown's conduct imputed to Universal Hospital but the conduct of all subsequent tortfeasors should be imputed as well. Their contentions are incorrect.

The seminal case for subsequent medical treatment liability is Ash v. Mortensen (1944) 24 Cal.2d 654. The California Supreme Court in Ash held that the tortfeasor responsible for the original injury to plaintiff remained jointly and severally liable for injuries occurring during subsequent medical treatment for those injuries. This determination was based on a proximate cause analysis whereby the aggravated injury resulting from subsequent negligent medical treatment was considered foreseeable and a "normal part of the aftermath" of the original injury. (Id. at p. 657; Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1606.) As a consequence, the original tortfeasor becomes jointly and severally liable to plaintiff for those additional, subsequent injuries. (Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 1201-1203.)

In that regard, CACI Instruction No. 3929 provides:

If you decide that [defendant] is legally responsible for [plaintiff]'s harm, [he/she/it] is also responsible for any additional harm resulting from the acts of others in providing aid that [plaintiff]'s injury reasonably required, even if those acts were negligently performed. (Emphasis added.)

Continue reading " Malpractice At Sacramento Hospital Leads To Wrongful Life Action, Part 8 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.)

PRINCIPLES REGARDING OSTENSIBLE AGENCY

In California, an agency relationship between a principal and an agent can be actual or ostensible. (Civ. Code, § 2298.) An example of an actual agency relationship is the relationship between an employee (the agent) and an employer (the principal). (Civ. Code, § 2299.)

An agency is ostensible where the principal causes a third person - intentionally or through negligence - to reasonably believe that the agent is acting on the principal's behalf. (Civ. Code, § 2300.) Under Civil Code section 2334, a principal is bound by the acts of his ostensible agent but only to those persons, without fault, who have acted in good faith on the conduct of the agent. (Civ. Code, § 2334.) The issue of ostensible agency is normally a question of fact and the burden of proof rests with the party asserting the existence of that type of relationship. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1458; Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 502-503.)

In Mejia, the California Supreme Court addressed the principle of ostensible agency in the context of patients at hospitals. In Mejia, plaintiff sought treatment in an emergency room at Community Hospital of San Bernardino for neck pain and stiffness. Following X-rays, the radiologist reported that he saw a congenital fusion of the neck but nothing more. It was later discovered plaintiff's neck was actually broken and she was paralyzed. The hospital, who was not the radiologist's employer, obtained a nonsuit and Fourth District Court of Appeal reversed.

The Mejia Court examined prior judicial decisions and existing statutes applicable to ostensible agency and recognized that plaintiff must establish at least three elements in order to prove ostensible agency: (1) The patient deals with the physician with the belief that the physician is authorized to action on behalf of the hospital and the belief is a reasonable one; (2) The patient's belief is generated by some act or neglect of the principal/hospital; and (3) The patient relying on the agent's apparent authority is not guilty of negligence. (Id. at p. 1456-1457.)

Continue reading " Sacramento Hospital Proportionally Responsible For Birth Injuries, Part 7 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 Barragan Court recognized that a wrongful life action exists in favor of the plaintiff child where the child proves the defendant negligently failed to diagnose and warn the parents that their baby had a probability of being born with a genetic ailment or disability and where the baby is in fact born with that ailment or disability. (Id. at p. 1004.) In that case, however, neither element existed.

During the period of time where the mother had the right to abort her pregnancy, the pregnancy was progressing normally and there was no indication that the plaintiff twins had any defects that were substantially certain to occur. (Id. at p. 1005.) Therefore, Dr. Lopez had no duty to advise the mother that she had a right to abort her child. Stated differently, Dr. Lopez had no duty to advise the mother of a non-existent probability of harm to the twins. Once the mother began experiencing complications with her pregnancy, the twin fetuses were already viable and it would have been a breach of the standard of medical care to offer an abortion to the mother. (Id. at p. 1006.)

In addition, the medical expert testimony established that nothing done by Dr. Lopez caused any injury to the plaintiff twins. The expert testimony established both that cerebral palsy occurs in the absence of professional negligence and there was no test Dr. Lopez could have performed that would have predicted the twins would be born impaired. (Id. at p. 1006.) (See Part 7 of 10.)

Continue reading " Medical Malpractice In Sacramento Leads To Down Syndrome Child, Part 6 of 10 " »