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, U.C. 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.)
CAUSES OF ACTION AND AFFIRMATIVE DEFENSES THAT WILL BE TRIED
In this case, plaintiffs have asserted causes of action for medical negligence, wrongful life and wrongful birth.
The affirmative defenses that will be raised (as asserted in the answer to the first amended complaint) are the first affirmative defense (failure to state facts sufficient to constitute a cause of action against defendants), the sixth affirmative defense regarding the applicability of the MICRA provisions pursuant California Civil Code Sections 3333.1 and 3333.2, California Code of Civil Procedure Section 667.7; the eighth affirmative defense (California Civil Code Section 1714.8.)
STIPULATION
Counsel have stipulated that plaintiff Nicholas Smith cannot recover general damages or assert a claim for loss of earnings or earning capacity. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
EVIDENTIARY ISSUES
The evidentiary issues that will be raised at trial are whether or not the defendants complied with the standard of care and whether or not the defendants care and treatment was a proximate cause of the plaintiffs' alleged injuries as well as issues pertaining to the plaintiffs' alleged damages.
]]> APPLICABLE LAWWhile plaintiffs are alleging a cause of action for wrongful life and wrongful birth, plaintiffs' action is in fact one for medical negligence. Turpin v. Sortini (1982) 31 Cal.3d 220, 229.
Courts have observed that, as in any medical malpractice action, the plaintiff must establish: (1) the duty of the professional to use such skill, knowledge and care ordinarily possessed and used by members of his profession in the same community under similar circumstances; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence. Gami v. Mullikin Medical Center (1983) 18 Cal.App.4th 870, 877. California case law doles not hold a doctor liable for any untoward result which may occur in the course of his medical practice. The standard of care demands only that the doctor have the degree of learning and skill ordinarily possessed by practitioners of the same medical community and that he exercise ordinary care and judgment in applying such learning and skill to the treatment of his patient. Huffman v. Lindouist (1951) 37 Cal.2d 465. (See Part 5 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>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, U.C. 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.)
The remainder of Ms. Smith's pregnancy was completely uneventful. The balance of her prenatal course was normal with the patient matching fundal height with gestational age.
On December 13, 2008, Ms. Smith had an spontaneous rupture of membranes. There were no uterine contractions following the rupture of membranes. The plaintiff was advised of the risk of infection due to prolonged rupture of membranes. The plaintiff opted to go to the hospital approximately six hours after her membranes ruptured. Ms. Smith was started on Pitocin augmentation. With Pitocin augmentation, the fetal heart rate showed decreased variability. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The plaintiff was advised to have a cesarian section which she agreed to and the infant was delivered by Dr. Brown during the early morning of December 14, 2008. Following his birth, the minor plaintiff was diagnosed with hemimeganencephaly, which is an enlargement of one cerebral hemisphere. All experts are in agreement that this is a very rare congenital malformation.
]]> No expert retained by the plaintiffs has criticized any of the care, treatment or judgment of Dr. Brown with regard to Nancy Smith's labor and delivery. (Dr. Woo was not involved in the labor and delivery.) (See Part 4 of 8.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>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, U.C. 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.)
STATEMENT OF FACTS
Plaintiff Nancy Smith was initially seen at Women's Health Group by Stanley Woo, M.D., on July 21, 2008. Ms. Smith reported a last menstrual period of March 24, 2008, and an estimated delivery date of December 31, 2008. Ms. Smith received her initial prenatal care at California Medical Center by Eric Goldberg, M.D., in Sacramento in May 2008.
At the initial prenatal visit, Dr. Woo noted Ms. Smith to be 16.2 weeks pregnant. On this visit, Dr. Woo performed an ultrasound to document a single viable intrauterine fetus. This was not a fetal anatomic ultrasound and thus no measurements were taken. Further, the testimony by defendants' experts will be that no measurements were required by the standard of care. Further, all experts agree that if measurements had been taken, they would have essentially shown a normal fetal anatomy. Additionally, all experts are in agreement that the defendants were not required by the standard of care to perform an ultrasound. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
At the initial office visit, blood was drawn for AFP screening. The test results were received on or about July 30, 2008, and were negative for open neural tube defects, Down's Syndrome, and trisomy 18. There was also no history of neural tube defects in the family. The plaintiffs were informed of the results on or about August 5, 2008.
]]> Nancy Smith's second prenatal visit was on August 11, 2008 with Elizabeth Brown, M.D. She was 20.2 weeks gestation by dates and fundal height was 20 cm. Thus, size equaled dates. An ultrasound was performed on that date by Dr. Brown because the plaintiffs wanted to know the sex of the fetus. On July 21, 2008, Dr. Woo was unable to confirm positively that the plaintiff Nancy Smith was pregnant with a male fetus. Thus, the ultrasound performed by Dr. Brown was, again, not an anatomical ultrasound and no measurements were taken. Defendants' experts are in agreement that no measurements were required by the standard of care. Further, plaintiffs' expert, Dr. Jones will testify that obstetricians do perform ultrasounds merely to ascertain the sex of the fetus. Moreover, the testimony by the experts will be that no gross abnormalities would have been seen on the ultrasound. Further, no brain abnormalities would have been detected at this stage by ultrasound and all experts are in agreement that the child's hemimeganencephaly would not have been capable of diagnosis at this stage. (See Part 3 of 8.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>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, U.C. 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.)
DEFENDANTS ELIZABETH BROWN, M.D., STANLEY WOO, M.D., AND WOMEN’S HEALTH GROUP’S TRIAL BRIEF (PRE-TRIAL REPORT)
INTRODUCTION
The instant action is one for medical malpractice, wrongful life and wrongful birth brought on behalf of the plaintiffs, Nancy Smith, Thomas Smith, and minor plaintiff Nicholas Smith, by and through his Guardian Ad Litem, Nancy Smith, for the failure to diagnose multiple congenital anomalies prenatally during ultrasounds performed on July 21, 2008, by defendant Stanley Woo, M.D., and August 11, 2008, by defendant Elizabeth Brown, M.D.
Plaintiffs allege that Drs. Woo and Brown failed to properly perform the ultrasounds by failing to obtain measurements. Plaintiffs allege that had the congenital anomaly that the plaintiff Nicholas Smith was born with, known as hemimeganencephaly, been diagnosed, plaintiffs Nancy Smith and Thomas Smith would have aborted the pregnancy and the minor plaintiff Nicholas Smith would not have been born. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The evidence will show that both Dr. Woo and Dr. Brown met the standard of care regarding the ultrasounds performed, both of which were limited ultrasounds and they were not required to evaluate the anatomy of the baby.
]]> The undisputed evidence will be that there was no medical indication for an anatomic, or structural ultrasound, or other more extensive testing, in this low risk pregnancy. There was therefore no indication for referral to a high risk specialist any time during the pregnancy. Further, the evidence will show that the child's congenital anomaly, hemimeganencephaly, would not have been diagnosable to a reasonable degree of medical probability at a point in time when the plaintiff Nancy Smith could have had a legal abortion in California. (See Part 2 of 8.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>(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.)
WHETHER ANY OF THE DEFENDANTS HAVE OR HAVE NOT BEEN SUED FOR PROFESSIONAL NEGLIGENCE IS NOT RELEVANT IN THIS ACTION
The only issue properly before the court and the trier of fact is whether or not the defendants breached the standard of care to these patients; whether or not said breach was a substantial factor in causing injury or damage; and the extent of that injury/damage. It is of no consequence that this case may, or may not be, the first in either of these individual defendants' career in obstetrics.
Comments, suggestions, or innuendo that defendants are good obstetricians or because of a non-existent lawsuit history will only serve to prejudice the jury against plaintiffs, confuse the issues and allow for the potential for jury speculation, rather than focusing on the evidence. Like evidence of good "conduct" or good "character," such comments, evidence or argument, is improper because it asks the jury to violate the law and their oath to judge the case based on the evidence presented to them and without regard to sympathy for any party. While such propaganda can be cleverly worded and disguised in its presentation, it is still inadmissible and improper and should not be allowed by this court. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
EVIDENCE CODE § 352 MANDATES EXCLUSION OF SUCH EVIDENCE, AS IT WOULD RESULT IN UNDUE PREJUDICE TO PLAINTIFFS, CONFUSION OF THE ISSUES, AND WOULD MISLEAD THE JURY SUCH THAT ITS PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE
This Court has the discretion to exclude prejudicial evidence. California Evidence Code § 352 provides that:
]]> The court, in its discretion, may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, confusion of the issues, or of misleading the jury.
The admission of such evidence or argument would only lead to unfounded speculation and conjecture by the jury. Any such speculation would only serve to confuse the issues, unduly prejudice the jury against the plaintiffs and ultimately mislead the jury. These real and substantial threats clearly outweigh any purported probative value of such evidence that may be suggested by the defense.
CONCLUSION
For all the above reasons, plaintiffs respectfully urge this court to preclude counsel and all witnesses from presenting evidence of or making any reference to, the purported fact that this is the first and only medical malpractice lawsuit filed against any of the defendants herein.
The court is further requested to order the defendants' counsel to so inform all of its witnesses to not make any such reference to or comment of this nature and to otherwise strictly follow these instructions.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>(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.)
Plaintiffs' Motion in Limine to Prohibit Argument or Evidence to Suggest That This is the Only Time the Defendant(s) Have Been Sued for Malpractice
Plaintiffs will move this court in limine, before trial and selection of jury, on the grounds that any such evidence is not relevant to any issues presented in this action, and would be highly improper and prejudicial to Plaintiffs.
This motion is based upon this notice, the accompanying Memorandum of Points and Authorities, any documents already on file with this Court, and upon such other oral and documentary evidence as may be presented prior to or at the hearing of this matter.
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Plaintiff Nicholas Smith, a minor by and through his guardian ad litem, Nancy Smith, in the instant personal injury lawsuit seeks damages for devastating permanent personal injuries sustained during the course of his gestation in this birth injury action. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins
Plaintiffs anticipate that defense counsel may improperly attempt to inform the jury that this case is the first and only medical malpractice claim filed against the defendants. (See Part 2 of 2.)
(Please 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.)
It is also 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, U.C. Davis Medical Center, Mercy, or Sutter.
As such, with trial likely to occur in the next six to nine months, defendants have been severely prejudiced by plaintiffs' inappropriate conduct including the following: (1) defendants have been unable to ascertain plaintiffs' specific contentions/allegations; (2) defendants have been unable to identify subsequent treating doctors so that they may subpoena such records, keeping in mind that it will take an additional 30-45 days to obtain these records once subpoenas are issued; and (3) while defendants can retain, at least, some experts, they will be unable to obtain complete expert opinions until the experts are allowed to review all records. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Code of Civil Procedure §36 provides, in pertinent part, the following:
(b) A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under the age of 14 years unless the court finds that the party does not have a substantial interest in the case as a whole. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision.
]]> g) Upon the granting of a motion for preference pursuant to subdivision (b), a party in an action based upon a health provider's alleged professional negligence, as defined in section 364, shall receive a trial date not sooner that six months and not later than nine months from the date that the motion is granted.Responding defendants submit that, under these circumstances, it is not appropriate to grant trial preference in this case given plaintiffs' course of conduct. However, in recognition of the mandatory nature of this provision, it is requested that the trial date be set for nine months from the date of this hearing.
CONCLUSION
Based on the foregoing, and provided that the Court is inclined to grant this Motion, it is respectfully requested that the Court set the trial date in late March or early April 2002, in order to allow defendants a full opportunity to conduct discovery and properly prepare this matter for trial.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
(Please 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.)
It is also 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, U.C. Davis Medical Center, Mercy, or Sutter.
When responses were not forthcoming, by letter dated May 22, 2002, counsel for these responding defendants requested that plaintiffs' counsel provide responses to the outstanding discovery responses by May 29, 2002. In said letter, counsel for responding defendants further indicated that given plaintiffs' pending motion for trial preference, it was imperative that these severely outstanding responses be provided posthaste. While plaintiffs' counsel again requested, and was granted, another extension of time, until June 1, 2002, to provide responses, no responses were forthcoming. As such, it is disingenuous for plaintiffs to request trial preference in a highly complex action involving extensive damages when they have impaired defendants' ability to conduct even basic discovery necessary to evaluate this action and to prepare for trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]> While plaintiffs may, at some point, elect to provide discovery responses, based on the allegations contained in the complaint it is evident that an extensive amount of discovery, depositions and expert work-up will have to be conducted in order to fully and properly evaluate this matter and prepare it for trial. In total, it is likely that the case will involve anywhere from 12-15 expert witnesses. (See Part 4 of 4.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)
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, U.C. Davis Medical Center, Mercy, or Sutter.
This is a complex medical malpractice and birth injury action, involving numerous issues pertaining to prenatal and neonatal care, with allegations of catastrophic injury. Indeed, this action involves three distinct plaintiffs, comprised of the infant and his two adult parents, each of whom has claims which will require extensive work-up for purposes of evaluation and trial preparation. Given the nature of the allegations, it is expected that plaintiffs will be claiming several million dollars in damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
However, while defendants have acted expeditiously in recognition of the complexity of the issues presented in this matter, their efforts to do so have been severely impeded by these same plaintiffs who are now seeking a preferential trial setting. Indeed, despite the fact that these responding defendants served initial written discovery on February 27, 2002, to date, nearly four months later, plaintiffs have failed to provide any responses thereto. Plaintiffs' repeated failure to respond to discovery has required defendants to file Motions to Compel.
]]> (Responding defendants filed a Motion to Compel Plaintiffs to Respond to Form Interrogatories and Special Interrogatories, and a Motion to Compel Plaintiffs to Respond to Request for Production of Documents. These Motions are scheduled for hearing in this Court on July 17, 2002.) Unlike plaintiffs, these responding defendants have promptly and timely responded to all discovery propounded by plaintiffs.Hence, plaintiffs have had sufficient time to propound discovery, prepare the subject motion for trial preference and, based on recent representations, prepare a motion for leave to amend their complaint for punitive damages. However, as noted above, they have failed to provide responses to the most basic discovery, despite being provided with a number of extensions to do so. Responses to the subject discovery were due on or before April 4, 2002. However, plaintiffs' counsel requested, and was granted, an extension of time in which to provide responses until May 1, 2002. (See Part 3 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]>(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)
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, U.C. Davis Medical Center, Mercy, or Sutter.
Response of Defendants, Mark Davis, M.D., Glenn Hall, M.D., and Universal Perinatal Group, to Plaintiffs' Motion for Trial Preference; Memorandum of Points and Authorities
MEMORANDUM OF POINTS AND AUTHORITIES
PLAINTIFFS ARE SEEKING A PREFERENTIAL TRIAL SETTING AS ONE OF A NUMBER OF STRATEGIC MANEUVERS DESIGNED TO IMPEDE DEFENDANTS AND PREJUDICE THEIR ABILITY TO PROPERLY PREPARE THIS MATTER FOR TRIAL.
This is an action for medical malpractice and intentional tort (battery) arising out of the care and treatment rendered to co-plaintiff, Kristy Smith, during the course of her pregnancy with, and during the delivery of minor plaintiff, Owen Smith. This action also appears to be based on the care and treatment rendered to the infant immediately following his birth. With respect to the infant, plaintiffs are alleging that he suffers from severe and catastrophic neurological deficits as a result of defendants' alleged negligence. Plaintiffs, Wesley Smith and Kristy Smith, are also alleging a cause of action for emotional distress. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
]]> Plaintiffs seek a preferential trial setting pursuant to Code of Civil Procedure §36(b) on the grounds that the minor plaintiff, Owen Smith, is under the age of fourteen. While these responding defendants do not oppose such motion, as there do not appear to be grounds upon which to do so, it is important that the court be made aware of the following matters when determining when to set a trial date. (See Part 2 of 4.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
(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 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.
Plaintiffs’ citation of Molien v. Kaiser Foundation Hospitals, (1980) 27 Cal.3d 916, is confusing at best. Molien involved a husband's claim of emotional distress based on the harm that occurred to him and his marriage. Specifically, the physician misdiagnosed Mr. Molien's wife with syphilis, leading her to believe he had had an extramarital affair. This caused significant marital problems as well as causing Mr. Molien to be medically tested and to take medication. As the Supreme Court later held in Burgess, to the extent Molien stands for the proposition that it introduced a new method for determining the existence of a duty, as limited by foreseeability, it should not be relied upon and its discussion of duty is limited to its facts. Burgess, at 1074. However, Burgess did reaffirm the principles derived from Molien as follows:
(1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached. (Burgess at 1074.) Again, no duty arose between these moving parties and Mr. Lee. Therefore, Timothy Lee cannot sustain a claim for NIED, based on the direct victim theory.
]]> Timothy Lee Cannot State a Claim for NIED Based on the Bystander Theory.Thing v. La Chusa, (1989) 48 Cal.3d 644, is the utmost authority when evaluating whether Mr. Lee can state a claim for NIED. Plaintiffs attempt to distinguish the facts in Thing from those in the present case. Plaintiffs are correct; Thing did involve[] an auto accident in which the mother did not actually see the auto hit her child but saw her child in the street after the accident. However, plaintiffs attempt to distinguish the two cases because Thing was an auto accident case is way off base. Mr. Lee and Ms. Thing both did not actually see the auto hit the child [or the alleged fetal injury]. Plaintiffs claim that Timothy Lee witnessed the pain and suffering. [Opposition, p. 10, line14]. Whose pain and suffering? As detailed at length in the Motion, in Justus v. Atchison (1977) 19 Cal.3d 564, the Supreme Court had already considered the sensory and contemporaneous observance factor and drew a bright line barring a father present at a stillborn birth from recovery under the bystander theory.
CONCLUSION
Based on the foregoing, it is respectfully requested that the court grant moving parties' Motion for Summary Adjudication.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
(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 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.
Plaintiffs' opposition also relies on several cases involving a mother's claim for NIED, which differ from the motion before the court. First, plaintiffs' rely on Sesma v. M. Cuento, M.D., (1982) 129 Cal.App.3d 108. According to plaintiffs' brief, Sesma involved a woman in labor who brought a cause of action for NIED based on a stillbirth. The motion at bar does not involve a mother's claim for NIED. Rather, it involves Mr. Lee's claim for NIED, which must be based on the bystander theory. Plaintiffs raise the issue of foreseeability, but, as put forth in moving parties' motion, have alleged no facts that would support this theory. Rather, they rely on their strategy of intertwining the mother's and father's claims of NIED. Again, Johnson v. Superior Court, (1981) 123 Cal.App.3d 1002, involved a mother's claim for NIED caused by a medically caused stillbirth.
Plaintiffs argue that Marlene F. v. Affiliated Psychiatric Medical Clinic Inc., (1989) 48 Cal.3d 583, applies. Marlene F., as stated in plaintiffs' opposition, involved two mothers and their sons who sought therapy. Plaintiffs state it best: the court held that a mother of a minor child could state a claim for NIED against the psychotherapist who consulted to treat both the mother and son and then sexually molested the son.
]]> Here, Timothy Lee was not the mother. Further, there was not a physician-patient relationship between Timothy Lee and moving defendants. This case law is inapplicable to the present motion. Therefore, it is clear that Mr. Lee cannot state a cause of action for NIED based on the direct victim theory. (See Part 4 of 4.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
(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 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.
Direct Victim Analysis Is Inapplicable to Plaintiff Timothy Lee.
Plaintiffs argue that Timothy Lee is a "direct victim," thereby entitling him to damages based upon a cause of action for NIED. Plaintiffs inappropriately rely on Burgess v. Superior Court, (1992) 2 Cal.4th 1064. In Burgess, the Supreme Court held that a mother could claim emotional distress damages as a direct victim of medical negligence which injured her baby during the birthing process. The Court's rationale was based on the physician-patient relationship that gave rise to a duty owed to the mother which encompassed medical care rendered to both her and her fetus. As the Court stated:
It is in light of both these physical and emotional realities (the court was referring to the altruistic physical and emotional connection between a woman and her fetus. (Burgess at 1076)) that the obstetrician and the pregnant woman enter into a physician-patient relationship. It cannot be gainsaid that both parties understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother. Id. at 1076.
]]> Burgess cannot not be misinterpreted to create an imaginary duty owed to the father. Fathers are precluded by nature from having the same physical and emotional bond a mother has to her fetus. In this case, neither Dr. White nor Dr. Green owed a duty to Timothy Lee because there was no physician-patient relationship between them. Therefore, Timothy Lee is precluded from relying on the direct victim theory of recovery for NIED.Plaintiffs' opposition relies heavily on Andalon v. Superior Court, (1984) 162 Cal.App.3d 600 and Newton v. Kaiser Hospital, (1986) 184 Cal.App.3d 386. [See Plaintiffs' Opposition] However, these two appellate court decisions have been criticized by the Supreme Court. [See, Thing v. LaChusa, (1989) 48 Cal.3d 644, 659-660 (criticizing the court's abandonment of distinguishing between direct victim and bystander cases. Also critical of foreseeability analysis); See also, Marlene F. v. Affiliated Psychiatric Medical Clinic Inc., (1989) 48 Cal.3d 583, fn 7( In light of the facts of this case, we need not consider the validity of the theory advanced by one Court of Appeal, which premises a duty to parents solely on the basis of a contract they enter into for the care of their child and then permits recovery for emotional distress if that care is not properly rendered. (Cf. Andalon v. Superior Court, (1984) 162 Cal.App.3d 600, 611; and Newton v. Kaiser Hospital, (1986) 184 Cal.App.3d 386, 392. )]. Therefore, Thing is controlling, with respect to Timothy Lee' claim for NIED. (See Part 3 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
(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 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.
DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES
Attorneys for Defendants, Frank White, M.D., Max Green, M.D., and XYZ MEDICAL GROUP.
MEMORANDUM OF POINTS AND AUTHORITIES
Introduction and Summary of Plaintiffs' Reply
Plaintiffs' opposition is a confusing quagmire that improperly attempts to interweave Mr. and Ms. Lee's claims regarding their son's birth injuries. Mindy Lee's claim for Negligent Infliction of Emotional Distress ( NIED ) is not the subject of moving parties' motion. Plaintiffs' opposition confuses the relevant case law as delineated by the Supreme Court and misapplies the facts of the case at bar.
The Moving Parties Do Not Dispute Timothy Lee's Right to Allege a Cause of Action for NIED.
]]> Moving parties do not dispute that Timothy Lee has the right to allege a cause of action for NIED. Rather, moving parties contend that, even assuming arguendo, plaintiffs' factual allegations are true, plaintiff Timothy Lee, cannot fulfill the basic requirements of a cause of action for NIED. Therefore, the portion of plaintiffs' opposition regarding plaintiff's right to allege a cause of action for NIED may be disregarded as superfluous to moving parties' motion. (See Part 2 of 4.)For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
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.)
]]> Therefore, the original tortfeasor is allowed to reduce his liability to the extent of the subsequent tortfeasor's fault and is entitled to have [plaintiff's] damages apportioned among the universe of tortfeasors. (Id. at p. 441.) This apportionment is compelled regardless of whether the universe of tortfeasors remain parties to the litigation at the time of trial or not. (Roslan v. Permea, Inc. (1993) 17 Cal.App.4th 110, 113 [the universe of tortfeasors includes nonjoined defendants as well as settling defendants].)Regardless of any of plaintiff's' incorrect theories of liability, defendant Universal Hospital is entitled to have the jury apportion fault in this case among the universe of tortfeasors involved in this case, including plaintiff and including non-parties.
CONCLUSION
On the basis of the foregoing, defendant Universal Hospital Medical Center requests this Court to reject plaintiff's' improper theories of liability.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
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