Sacramento Birth Injury Lawyer Blog

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

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

MRS. SMITH'S ACTS CANNOT BE CONSIDERED ON MITIGATION.

Although the law does require a plaintiff in a personal injury action to use reasonable effort to care for their injuries or avoid further harm, such a duty to mitigate cannot and should not be inferred as an obligation of Emma through her mother's decision to seek additional opinions. An extensive amount of research has been done to determine if there is a California case addressing imputation of a duty to mitigate to a child. Counsel has been unable to locate such California authority. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

But the issue was decided by the Connecticut Supreme Court in the case of Lange v. Hoyt (1932) 114 Conn. 590. In that case, an eight-year-old child was struck by a bus. The mother refused hospitalization and surgeries for the child, and the minor's injuries were therefore aggravated. Holding that the mother's failure to mitigate was not a superseding or intervening act, the Connecticut Supreme Court stated as follows:

A child of the age of eight years is necessarily dependent upon her parents as regards the steps to be taken to bring about a recovery from an injury, and, if she is not herself guilty of any negligence or improper conduct, the failure of the parents to take proper steps to that end, by a parity of reasoning, cannot be such a cause of any portion of the injuries as will defeat a recovery for all the results of the defendant's wrongdoing. (Lange v. Hoyt, supra, 114 Conn. 590.)

Continue reading " Sacramento Child's Family Sought Multiple Opinions Re Her Birth Injury Diagnosis, Part 5 of 6 " »

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

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

This doctrine was again reviewed in the sentinel case of Haft v. Lone Palm Motel (1970) 3 Cal.3d 756, where defendants attempted to characterize imputing parental negligence as an intervening or superseding cause. In Haft, the negligent party attempted to argue that the alleged negligence of the father, Mr. Haft, in the death of his five-year-old son was a causation issue. They claimed that his failure to appropriately supervise was a intervening and superseding cause which broke the chain of proximate causation with respect to the deaths of father or son. (Haft v. Lone Palm Motel, supra, 3 Cal.3d 756, 769.) In response to same, the court stated as follows:

The fallacy of defendants' contentions as to "superseding cause" is perhaps most clearly illuminated by its application to the cause of action relating to the death of five-year-old Mark. In that context the claim that defendants' responsibility to Mark was cut off by Mr. Haft's alleged negligence is in reality no more than an attempt to resurrect the doctrine of imputed contributory negligence between a minor and his parent, a theory which the California courts have long repudiated. (Crane v. Smith (1943) 23 Cal.2d 288, 295,144 P.2d 356; Zarzana v. Neve Drug Co. (1919) 180 Cal. 32, 34--37, 179 P. 203) [FN15] The imputed contributory negligence formula transferred the negligence of a parent (in not carefully supervising his child, for example (see Hartfield v. Roper (N.Y. 1838) 21 Wend. 615, 34 Am.Dec. 273)) to a plaintiff child so as to bar the child's recovery against an admittedly negligent defendant; defendants seek to obtain a like dispensation through the jury's application (in reality, misapplication) to the nebulous superseding cause doctrine. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Sacramento Doctors Try To Blame Girl's Mother For The Child's Birth Injury, Part 4 of 6 " »

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

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

POINTS AND AUTHORITIES

SABRINA SMITH WAS NOT NEGLIGENT

In the case at bar, there is absolutely no evidence that Mrs. Smith was negligent. There is no evidence that she did anything other than advocate for her child's correct diagnosis. No witness has opined that she ever acted against medical advice. The record is devoid of evidence that by seeking additional opinions after physicians failed to treat and diagnose her child, she acted in any manner other than a reasonable person or parent.

To allow defense witnesses to imply that if she had taken an alternative approach and returned enough times to Dr. Hill, who did not make the diagnosis, the diagnosis would have been made, is pure speculation. Dr. Hill was not even at the University after February 2000! Evidence Code 352 precludes such speculation. Mrs. Smith cannot appear on the verdict form without proof of fault. The act of not returning to the same physician, unless this changing of doctor is against medical advice, is not negligence. Mrs. Smith had no duty to return to Dr. Hill. Duty is a question of law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading " Missed Diagnosis By Sacramento Physicians Led To Birth Injury, Part 3 of 6 " »

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

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

In October 2002, Mrs. Smith watched a television show regarding DRD. She immediately knew that the diagnosis her daughter had carried for nearly four years, made by Dr. Hill, of spastic diplegia due to birth trauma, was incorrect. She therefore called her pediatrician and was referred to endocrinologist, Bob Greene, M.D. On the same day as the appointment Dr. Greene prescribed a trial dosage of L dopa/Sinemet for Emma. Within literally hours Emma's symptoms began to disappear.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

THE ISSUE

During the deposition of the defense expert witness, Dr. Nancy Black, she commented repeatedly that Mrs. Smith did not bring Emma to the same doctor during this four year period. Quotes from the deposition representative of said comments are attached hereto as Exhibit 1. She states that "the kid has been everywhere. The mother was shopping around." Ultimately, she gives the opinion, based on nothing other than utter speculation, that Emma probably would have been diagnosed somewhat earlier had she just continued to follow up with the first neurologist.

Dr. Black gives this unfounded opinion despite the fact that she admits that Mrs. Smith had Emma participate in all testing ordered by Dr. Hill and that all the testing was normal. Admittedly Dr. Hill did not set a return appointment.

Continue reading " Sacramento Family Files Malpractice Suit Against Hospital For Birth Injuries, Part 2 of 6 " »

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

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

Plaintiff's Motion in Limine to Exclude any Reference or Comment by Defendants' Expert Witness Nancy Black, M.D. and of Any Other Witness that Emma Smith’s Delay in Diagnosis Was Contributed to or Caused by Her Mother's Failure to Return to Defendant Dr. Hill or Other Physicians

Plaintiff Emma Smith, through her Guardian as Litem, Sabrina Smith, brings the following motion in limine and requests that the court order as follows:

1. To exclude any and all comments concerning Sabrina Smith's failure to return Emma to the treatment of Dr. Hill or other health care providers;
2. To exclude any and all comments or opinions Emma would have been diagnosed sooner if she had returned to Dr. Hill or other health care providers;
3. To order defendant counsel to caution his witnesses as to the above referenced rulings;
4. To order defense counsel to approach the bench and make an offer of proof prior to soliciting any testimony that could elicit such an opinion or comment.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

INTRODUCTION

This case involves the failure to appropriately diagnose and treat an eight year old child, Emma Smith, for a primary dystonia, dopa responsive dystonia (DRD). The child, Emma, from the age of eight years and one month through age twelve years and four months, became progressively disabled as a result of this treatable and reversible disease. During this time frame she was cared for by her parent, Sabrina Smith.

Continue reading " Mother Fights For Health Of Sacramento Girl After Birth Injury, Part 1 of 6 " »