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 birth injury/personal injury case and its proceedings.)

LIABILITY
The care and treatment rendered to Ms. White by Cindy Brown, M.D., and SAC Medical Group, Inc., fell below the standard of care in many respects, and it was that failure that caused the premature birth of Tomas and Owen and their ultimate demise.

Ms. White was at risk for pre-term labor and premature lengthening and dilatation of her cervix for the following reasons:

1. She was pregnant with twins;
2. She recently had undergone a LEEP procedure, i.e., a removal of a portion of her cervix due to abnormal Pap smear/biopsy;
3. She had delivered a child vaginally within the last year prior to this pregnancy.

The standard of care required Dr. Brown to refer Ms.. White to a perinatologist/high risk pregnancy specialist or comply with the standard of care of a perinatologist by assessing Ms.. White's cervix every two weeks throughout her pregnancy by way of transvaginal ultrasounds.

Secondly, the standard of care required, upon plaintiff's complaint on March 3rd of cervical pinching or vaginal pain, an immediate vaginal examination to determine whether or not the cervix had dilated and evaluation of the cervix by ultrasound.

Had Dr. Brown complied with the standard of care, early intervention would have occurred. Ms.. White would have been put on bed rest, been advised to stop working and more likely than not would have been able to prolong the pregnancy to 32 plus weeks. The twin baby boys died from the effects of premature labor and would have survived had Dr. Brown complied with the standard of care.

Continue reading "Wrongful Death Action Filed By Sacramento Parents On Behalf Of Twin Boys, Part 3 of 3" »

(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.)

During the prenatal visit on March 3, 2004, Ms. White complained to Dr. Brown about pinching she was feeling at the cervix, to which Dr. Brown replied that it was caused by the way the babies were sitting in the uterus, that the head may be touching the cervix.

Dr. Brown did not do a vaginal exam to evaluate her cervix, or to see if it had lengthened or dilated. Furthermore, she failed to perform a transvaginal ultrasound which is commonly used to evaluate the cervix. It is doubtful that Dr. Brown had the competence to perform such an ultrasound.

The following day, on March 4, 2004, Ms. White experienced a little bit of pinkish discharge, and through the night started feeling cramping. The next morning, concerned that something was wrong, Ms. White called Universal Memorial Hospital, and they recommended that she come in to the Labor and Delivery Department, and be hooked up to a monitor to see what was going on. Dr. Gonzalez was the OB/GYN covering for Dr. Brown on that day. Upon examination, he performed a vaginal examination and determined that she was dilated 3 cm. He started her on medication in an attempt to stop the pre-term labor and further dilation of her cervix. At that time, Ms. White was in her 23rd week of the pregnancy.

Continue reading "Sacramento Doctors Sued For Birth Injuries And Medical Malpractice, Part 2 of 3" »

(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’ TRAIL BRIEF
Plaintiffs William White and Joan White submit the following trial brief in the above entitled matter.

PARTIES
Plaintiffs: William White and Joan White
Defendants: Cindy Brown, M.D., and SAC Medical Group

STATEMENT OF FACTS
Plaintiff, Joan White, began seeing Dr. Brown prior to or at the beginning of her pregnancy with her son, Ethan, who was born XX/XX/2003. During the pregnancy, Ms. White had an abnormal PAP smear. As a result of that abnormal PAP smear, on May 27, 2003, she underwent a colposcopy and a LEEP procedure, during which a portion of the cervix where the abnormal tissue is present is removed. This process can lead to an incompetent cervix and put Ms. White at high risk for pre-term labor.

In November of 2003, Ms. White discovered she was pregnant again, and started her prenatal care with Dr. Brown. In December of 2003, an ultrasound was performed and it was determined that Ms.. White was pregnant with twins. The ultrasound was performed in December by a radiologist at SanSkid Imaging Center. In February and March of 2004, Dr. Brown performed ultrasounds in her office; however, they were grossly inadequate and did not come close to complying with the guidelines set forth by the American College of Obstetrics and Gynecology. Ms. White began experiencing dizziness and lack of energy for which Dr. Brown recommended increasing her iron intake. Ms. White asked Dr. Brown if she could go on disability, and Dr. Brown advised her that it was too early in the pregnancy. (See Part 2 of 3.)

Continue reading "Sacramento Parents File Lawsuit For Twins' Birth Injuries, Part 1 of 3" »

(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.)

Request For Sanctions

California Code of Civil procedure Section 2023 provides for monetary sanctions where there is a failure to respond to interrogatories, evasive responses and objections lacking substantial justification are misuses of the discovery process. It further specifies that misuses of the discovery process include, but are not limited to, the following: .... (2) Using a discovery method in a manner that does not comply with its specified procedures; ....(4) Failing to respond or to submit to an authorized method of discovery; (5) Making, without substantial justification, an non-meritorious objection to discovery; (6) Making an evasive response to discovery; ....(8) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery; and (9) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery...... C.C.P. Section 2023.

Plaintiffs propounded special interrogatories to obtain information from defendant regarding the relevant facts and witnesses in the present action. The discovery was not propounded to harass the defendant and was propounded in good faith in order to obtain relevant information in this tragic birth injury matter.

Continue reading "Family Sues Sacramento Hospital For Catastrophic Birth Injury, Part 6 of 6" »

(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.)

University's Assertion Of Boilerplate Objections Is Without Basis

In Greg Mannino v. Superior Court (1983) 142 Cal.App.3d 776, petitioner filed a personal injury action against real party in interest and propounded a six sets of special interrogatories. Real party filed a verified response after the date an answer was required and included numerous objections. Petitioner's subsequent motion to compel further answers was denied.

On appeal, the Court vacated the order denying motion to compel, holding that real party did not file on time and provided no reasonable excuse for the delay. Id. at 778-779. The court reasoned that the objections contained in the responses were based on relevancy, remoteness, vagueness, ambiguity and the claim that the interrogatories are too burdensome, stating that it does not require more than 60 days to raise these familiar complaints. Although the delay was short in this case, and it was the sixth set of interrogatories propounded to real party in interest, the court emphasized that the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious cause or defense when the party with the greater resources chooses to employ it in an unethical manner. Id.

In the instant birth injury matter, the objections made by University to the first seven special interrogatories propounded by plaintiff are without merit.

Continue reading "Brain-Injured Sacramento Boy Sues For Birth Injury, Part 5 of 6" »

(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 instant matter, plaintiffs are entitled to an order compelling University to further respond to plaintiffs' Special Interrogatories, Numbers One through Seven.

First, repeated attempts to meet and confer and to obtain the information from defendants have been unsuccessful. Plaintiffs received University's written responses to their first set of special interrogatories on May 16, 2002, after granting four extensions. Thereafter, in an attempt to meet and confer over the inadequacy of the responses, plaintiffs sent a letter to University outlining the alleged deficiencies in responses to Special Interrogatories, One through Seven.

Thereafter, although defendant agreed to provide further responses to the specified interrogatories, no response has been received as of the date of this motion. Moreover, most recent additional meet and confer attempts by counsel for plaintiffs have been met with silence. Because, as discussed in detail below, University has not provided further responses to plaintiffs' interrogatories after agreeing to do so, plaintiffs are entitled to an order compelling defendant University to provide further responses.

More importantly, the information being requested from University is directly relevant to the issue of negligence in this birth injury case.

Continue reading "Physicians From Sacramento Responsible For Child's Birth Injury, Part 4 of 6" »

(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.)

LEGAL ARGUMENT

Plaintiffs Are Entitled to an Order Compelling Responses To Special Interrogatories

Code of Civil Procedure section 2030(f) requires that a party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by (1) an answer containing the information sought to be discovered, (2) an exercise of the parties option to produce writings, or (3) an objection to the particular interrogatory. Further, section 2030(f)(l) specifies that each answer in the response shall be as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

Lastly, section 2030(1) provides that if the propounding party, on receipt of a response to interrogatories, deems that (1) an answer to a particular interrogatory is incomplete or evasive, (2) an exercise of the option to produce documents under paragraph (2) of subdivision (f) is unwarranted of the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or is too general, that party may move for an order compelling a further response.

In the instant birth injury matter, plaintiffs are entitled to an order compelling University to further respond to plaintiffs' Special Interrogatories, Numbers One through Seven. (See Part 4 of 6.)

Continue reading "Sacramento Boy Suffered Brain Injury At Birth, Part 3 of 6" »

(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.)

Contrary to defendant's objection as stated in their Special Interrogatory Responses, these individuals were not identified in the medical records in the possession of plaintiffs and/or their counsel. The medical records only identify Dr. Green and Dr. Brown as involved in the neonatal resuscitation and one labor/delivery nurse attending the birth. However, it has come out during depositions and through the course of discovery, through testimony of family and friends, that there was a resuscitation team as well as a great number of people in the room during the birth and the immediate post-birth period.

Also uncovered during the course of discovery is the fact that, according to University's own pediatric department rules and regulations, a neonatal team "would include a neonatal transport nurse and a NICU nurse, as well as the neonatologist or his/her designee." Further, University's women and infants services procedure manual specifies that an Advance Practice Nurse, Transitional RN or NICU Charge RN shall be present at every delivery. Thus, it is clear that there are individuals known to University who were present who are not identified or reflected in the McCoy records.

By letter dated June 16, 2002, defendant University indicated that it would provide further Responses to Plaintiffs' Special Interrogatories, Set One. Defendant agreed to provide supplemental responses on or before July 13, 2002. In addition, defendant agreed to extend plaintiffs time for filing a motion to compel further responses, up to and including July 27, 2002.

On or about July 16, 2002, after not having received any further responses to Plaintiffs' Special Interrogatories Set One, counsel for plaintiffs telephoned defense counsel Andy Stone in order to obtain a status of the responses. Mr. Stone informed plaintiffs' counsel that defense counsel Barbara Stein would be handling the responses and would give a status update by the end of business that day.

At the end of the day, having not received a call from Ms. Stein, plaintiffs counsel called her to again inquire as to the status of the responses. Plaintiffs' counsel left a message for Ms. Stein and her assistant that an update on the responses was necessary or plaintiffs would be forced to file a motion to compel further responses. Defense counsel did not respond.

Continue reading "Hospital In Sacramento Sued For Causing Birth And brain Injury, Part 2 of 6" »

(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.)

Memorandum of Points and Authorities in Support of Plaintiffs' Motion to Compel Answers to Special Interrogatories, and for Monetary Sanctions

INTRODUCTION

This is an action for medical negligence arising out of the birth of the minor plaintiff, John Smith, at University Hospital in Sacramento in April 2000 which resulted in severe neurologic injury to the minor. Plaintiffs allege that defendant University Medical Center ("University") and others carelessly and negligently managed the medical care of plaintiffs including but not limited to delivery and post-delivery care of minor plaintiff John Smith. As a result of defendant's negligence John Smith suffered severe brain injury, paresis and other neurological damage, resulting in impairment of mental and bodily function.

STATEMENT OF FACTS

Plaintiffs served their first set of Special Interrogatories on defendant University on February 28, 2002. University requested four extensions of time to respond to the interrogatories, all of which were granted by plaintiffs. After having an extended six weeks to answer, University served written responses on May 16, 2002. Defendant responded to Special Interrogatory, Numbers One through Seven, with an inadequate boiler plate objection, stating that defendant did not have to produce the information because it was equally available to plaintiffs.
Plaintiffs' counsel attempted to meet and confer with University with regard to their deficient responses to the special interrogatories by letter dated May 31, 2002. In their meet and confer correspondence, plaintiffs' counsel outlined each alleged insufficient interrogatory response, the answer given by University as well as the reason the answer was inadequate, and an explanation as to why the information requested in the interrogatories was relevant.

Continue reading "Sacramento Family Sues After Child Born With Brain Injury, Part 1 of 6" »

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

To meet this burden of proof, the defendant must show that either one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action (Code Civ. Proc., § 437c(o)(2).) This means that where plaintiff has the burden of proof at trial by a preponderance of evidence, the defendant must present evidence that would require a reasonable trier of fact not to find the underlying material fact more likely than not. Otherwise, he [defendant] would not be entitled to judgment as a matter of law. But would have to present his evidence to a trier of fact [the jury]. (Brackets added.) (Aguilar, supra, 25 Cal.4th at p.851.)

The import of the more likely than not in the foregoing quote is that a moving defendant must generally present evidence that, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff's case cannot be established.... The same is true when a moving defendant seeks to secure dismissal of the complaint based on an affirmative defense. (Emphasis added.) (Kids' Universe v. In2labs (2002) 95 Cal.App.870, 879.) Consequently, if the Defendants' expert declaration is disputed by a declaration by plaintiff's expert, then the matter is contradicted and the summary judgment must be denied.

Consequently, if the defendants fail to meet the above burden or persuasion, their motion must be denied:

Therefore, at the summary judgment stage, the defendants in the present case had an initial burden of production to make a prima facie showing that their conduct came within the exposure exemption. [Citations omitted.] If they failed to meet that burden, the plaintiff need not make any showing at all. (Pepperell v. Scottsdale Ins. Co. (1998) 62 Cal.App.4th 1045, 1054...].) Defendants contend that Dr. Amendola's declaration, together with Consumer Cause's discovery responses, shifted the burden of production to Consumer Cause. We disagree. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 469 - 470.

Continue reading "Physicians' Negligence Results In Birth Injuries For Sacramento Boy, Part 5 of 5" »

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

THE MOVING PARTY HAS THE BURDEN OF PERSUASION

A party who seeks an court's action in his or her favor bears the burden of persuasion thereon:

Evidence Code, § 500 states as follows: Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he or she is asserting.

As our Supreme Court recently explained:
[
F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof...." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

In effect, the defendants in this medical malpractice action as the moving parties for summary judgment bear the burden of persuasion that one or more elements of the cause of action in question "cannot be established," or that "there is a complete defense" thereto. (Aguilar, supra, 25 Cal.4th at p.850.) Consequently, the burden of persuasion does not shift. Rather, when the court rules, one party has met its burden of persuasion and the other has not.

Regarding the burden of proof, the Supreme Court addressed that issue as follows:

[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. A prima facie showing is one that is sufficient to support the position of the party in question.

Continue reading "Sacramento Boy Suffers Cerebral Palsy Due To Physicians' Malpractice, Part 4 of 5" »

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

PLAINTIFF HAS PRESENTED HIS EXPERT DECLARATION WHICH DISPUTES THE DEFENDANT'S EXPERT'S CONCLUSIONS - AND THIS DISPUTE REQUIRES DENIAL OF THE SUMMARY JUDGMENT

Plaintiff's obstetric and gynecology, John Zee, M.D. has properly presented his opinion in his declaration testimony. Plaintiff's expert declaration, which disputes the declaration of the Defendant's expert declaration, requires denial of this motion for summary judgement. Dr. Zee meets all the requirements of expert testimony - including the standard of care as it relates to nurses and physicians:

To qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject; and (2) is familiar with the standard required of a physician under similar circumstances; where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than to its admissibility. (Emphasis added.) (Evans v. Ohanesian (1974) 39 Cal.App.3d 121, 128.)

Consequently, Defendant is not in a position to argue the "weight" of Dr. Zee's testimony; that is the domain of the trier of fact, in this case, the jury. The Plaintiffs have properly presented their expert testimony on standard of care and causation. Defendants' experts' declarations are now controverted by the Plaintiffs' expert who concludes the Defendants’ actions were below the standard of care and also significant contributing factors in the cause of the child's condition:

And counter affidavits disclosing evidence or inferences reasonably deducible from such evidence of a triable issue of fact require denial of the motion.
(Emphasis added.) (Sesma v. Cueto, supra, 129 Cal.App.3d at p. 113.)

Continue reading "Sacramento Hospital Responsible For Medical Malpractice And Boy's Birth Injuries, Part 3 of 5" »

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

BRIEF STATEMENT OF FACTS
This medical malpractice action arises out of the prenatal, perinatal and postnatal care and treatment provided to Molly Brown and her minor son Mark Brown by defendants Tom White, M.D., Richard Hill, M.D., and Memorial Hospital (hereinafter "Memorial"). On June 20, 2000, Mrs. Brown delivered her son, Mark at Memorial. Plaintiffs contend that as a result of defendants' alleged negligence in caring for Mrs. Brown and her son Mark Brown while at the hospital, Mark Brown suffered permanent neurological damages, including cerebral palsy.

As to defendant Memorial, plaintiffs contend its nurses negligently delayed in attaching Mrs. Brown to a fetal heart monitor upon her presentation to the hospital, that defendant failed to implement intrauterine resuscitation maneuvers, and that defendant's nurses failed to timely contact Dr. White. (See, Molly Brown's responses to special interrogatory no. 23). Plaintiffs further contend that, as a result of this alleged negligence, plaintiff Mark Brown suffered physical, emotional and other damages. Plaintiffs allege defendants' negligence caused Molly Brown to suffer physical, emotional and loss of earnings damage. Mrs. Brown brings her claim for emotional distress as a direct victim, under Burgess v. Superior Court (1992) 2 Cal.4th 1064. Plaintiff Stan Brown contends he suffered emotional distress as a bystander, pursuant to Thing v. LaChusa (1989) 48 Cal.3d 644 and loss of consortium damages as a result of his wife's alleged injuries. (See Part 3 of 5.)

Continue reading "Sacramento Boy Suffers Birth Injuries Due To Medical Malpractice, Part 2 of 5" »

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

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT MEMORIAL HOSPITAL'S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

This is a medical malpractice action arising out of a birth injury suffered by the minor, Mark Brown. The minor suffered birth injuries resulting in cerebral palsy, and cognitive and developmental delay.

Memorial Hospital, where the minor was born, now moves for summary judgment claiming that the nurses acted within the medical standard of care and did not cause injury to the minor.

There is a triable issue of fact; Plaintiff has submitted evidence contradicting the Defendants' expert declaration. Plaintiff presents the expert declaration of John Zee, M.D., board certified in obstetrics and gynecology, contradicting the moving party's expert declaration. This counter declaration requires the denial of summary judgment (Sesma v. Cueto (1982) 129 Cal.App.3d 108, superceded on other grounds).

The moving party bears the burden of persuasion and the initial burden of proof: [F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Emphasis added.) (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Here the Plaintiff has now contradicted the Defendants' expert declaration; the Defendant has failed to carry its burden of persuasion. (See Part 2 of 5.)

Continue reading "Sacramento Parents Sue Hospital For Catastrophic Birth Injuries, Part 1 of 5" »

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" »

(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 Zavala v. Arce. 58 Cal.App.4th 915, 68 Cal.Rptr.2d 571 (4th Dist. 1997) an individual brought a medical malpractice action against her former obstetrician arising from the in utero death of plaintiff’s post-term fetus, seeking emotional distress damages on a "direct victim" theory of liability. The trial court granted summary judgment for defendant.

The Court of Appeal reversed the judgment and remanded the case to the trial court for further proceedings. The court held that the trial court, in granting summary judgment for defendant, erred in ruling as a matter of law that plaintiff could not state a claim for direct victim emotional distress damages. Because a pregnant woman who experiences negligent antenatal care is no bystander but a "direct victim" instead, the strictures of Thing v. La Chusa do not apply, and she may sue for her emotional distress even if she did not realize, while it was going on, that her doctor was acting negligently.

CONCLUSION
The plaintiffs cause of action is based on a direct victim rationale and not a bystander theory. The limitations asserted in Thing v. La Chusa are not applicable as for they only deal with actions asserted under a bystander theory. The plaintiffs pleadings are sufficient and the court should overrule the defendants’ demurrer.

Continue reading "Sacramento Hospital's Medical Negligence Results In Girl's Birth Injuries, Part 3 of 3" »

(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.)

The plaintiffs allege in paragraph 11 of their complaint that a contractual relationship existed between "plaintiffs and said defendants." Further, in paragraph 14 of the complaint it is alleged that the defendants negligently cared for plaintiff causing injury. Therefore a cause of action for medical negligence was pleaded for the plaintiff-parents due to the birth injury.

In Burgess v. Superior Court. 2 Cal.4th 1064, 1073, 9 Cal.Rptr.2d 615, 618, P.2d 1197 (1992) A mother filed a medical malpractice action against an obstetrician and a hospital after her child suffered permanent brain and nervous system damage, allegedly as a result of oxygen deprivation during the delivery. Defendants brought a motion for summary adjudication that the mother was not entitled to recover damages for emotional distress, since she did not contemporaneously observe the baby's injury as required for recovery in a bystander situation. The trial court granted defendants' motion. The Court of Appeal, granted the mother's petition for a writ of mandate to vacate the trial court's order, concluding that the mother was a "direct victim" rather than a bystander.

The Supreme Court modified the judgment of the Court of Appeal to direct the trial court, in addition to reversing its order of summary adjudication, to enter an order in accordance with the views expressed in the Supreme Court's opinion. The court held that the negligent causing of emotional distress is not an independent tort, but the tort of negligence, with the traditional elements of duty, breach of duty, causation, and damages. The court also held that in contrast to bystander cases in which a plaintiff seeks to recover for emotional distress caused by being a percipient witness to the injury of another, "direct victim" cases are those in which damages for serious emotional distress are sought as a result of a breach of duty owed to the plaintiff arising from a preexisting relationship between the plaintiff and the defendant. Inasmuch as the obstetrician owed a duty of care to the mother to avoid injuring her child, which arose from their physician-patient relationship, the obstetrician's alleged negligence breached a duty of care owed to the mother.

Continue reading "Newborn From Sacramento Suffers Birth Injuries, Part 2 of 3" »

(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’ MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO DEFENDANTS’ DEMURRER

INTRODUCTION
This is a medical malpractice action brought by plaintiffs Donna Smith and Peter Smith, the parents of their infant child Amanda Smith for medical malpractice arising out of the delivery and birth of Amanda. The negligence occurred as a result of the delivering doctor, Kenneth Brown, M.D. and Universal Hospital failure to administer antibiotics prior to delivery knowing that mother, Donna Smith was Group B Strep Positive. As a result of this negligence the virus was passed to the child and resulted in sepsis which required the child to be admitted to Neonatal Intensive Care Unit for 6 days.

The Plaintiffs filed a complaint for medical negligence and negligent infliction of emotional distress with this court on August 12, 2004. The Defendant Universal Hospital provided an answer on October 1, 2004. The Defendant Kenneth Brown, M.D., has responded with this demurrer claiming the parents Peter Smith and Donna Smith do not fit the criteria to recovery as under the bystander theory . Specifically the demurrer is based on the plaintiff-parents failure to satisfy the second prong of the three part test established in Thing v. La Chusa (1989) 48 Cal.3d 644.

PLAINTIFFS’ ACTION IS PREMISED ON A DIRECT VICTIM RATIONALE AND NOT BASED ON A BYSTANDER THEORY

Plaintiff-parents Peter Smith and Donna Smith assert that their right to bring a negligence action on a contractual direct victim rationale and not based on a bystander theory. A physician-patient contract existed between the parents and the defendant obstetrician with an end and aim of the birth of a healthy child and a normal reproductive experience for the parents.

Continue reading "Sacramento Parents Sue Physician For Daughter's Birth Injuries, Part 1 of 3" »

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

In its next First Amendment pronouncement, in Keenan v. Superior Court (2002) 27 Cal 4th 413, 117 Cal.Rptr. 2d 1, our Supreme Court held facially unconstitutional the "Son of Sam" law, Civil Code Section 2225(b)(l), concluding that these provisions of the California statute are facially invalid under both the free speech clause of the First Amendment in the Federal Constitution, as applied to the states through the 14th Amendment and the Liberty of Speech clause, of the California Constitution, Article I, Section 2, Subdivision(a).

Just about one year ago, the U.S. Supreme Court, in Tory v. Cochran (2005) 542 U.S. 965, struck down an injunction issued by a judge of this court (and upheld by the Court of Appeal), prohibiting petitioners from picketing, displaying signs, placards or other written or printed material, and from orally uttering statements about one Johnnie L. Cochran, Jr. and about Cochran's law firm in any public forum .

In so holding, the Supreme Court found that the injunction .... amounts to an overly broad prior restraint upon speech, lacking plausible justification, and that "Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." (Tory. supra) (Emphasis added.) (Citations omitted. )

Then, just two months ago, in ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 135 Cal.App.4th 841, Justice Epstein, for Div. 4 of our 2nd District, affirmed a courageous (conservative Republican) judge, (Stephen Peterson, who sits in Van Nuys) who held unconstitutional, strictly on 1st Amendment grounds, Civil Code. Section 2527, a statute compelling speech, with severe consequences for its violation.

Continue reading "Physician In Sacramento Sued For Causing Birth Injury, Part 5 of 5" »

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

IT IS APPROPRIATE FOR A PLAINTIFF TO INCLUDE A PRAYER FOR A SPECIFIC DOLLAR AMOUNT, AS WELL AS A PRAYER FOR PUNITIVE DAMAGES BECAUSE CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 425.13(a) (AS IS C.C.P. SECTION 425.10) IS PATENTLY UNCONSTITUTIONAL

Preventing plaintiffs from stating the amount of damages they seek violates a litigant's First Amendment right to free expression, as the two cited statutes command prior restraint on freedom of expression.

To put this matter in perspective, we start with the dissenting opinion of our late, beloved Justice Mosk, who, more than a decade past, in Schwab v. Rondel Homes, Inc. (1991) 53 Cal. 3d 428, 440-441, 280 Cal.Rptr. 83, wrote:

A statutory scheme that forbids a party to provide useful information-a form of compulsory silence-and that creates anomalous results ... urgently needs reexamination. Moreover, in a newsworthy case, a lawyer or party can always call a press conference and trumpet the claims to the heavens, or at least to the terrestrial media. Thus, not only are (CODE OF CIVIL PROCEDURE SECTIONS) 425.10 and 425.11 bad law and bad policy, they are an ineffective means of implementing the legislature's apparent intent. Nor can they be made effective: I cannot conceive of legislation that could constitutionally prevent plaintiffs with sensational personal injury damage claims from announcing those claims in any forum whatsoever. (Emphasis added).

Continue reading "Sacramento Family Seeks Punitive Damages For Birth Injury, Part 4 of 5" »

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

PLAINTIFF HAS PLEADED EACH AND EVERY ELEMENT OF A CAUSE OF ACTION
FOR WILFUL MISCONDUCT
Defendants David X., M.D. and Doctors Medical Group next demur to Plaintiff's third cause of action, for Wilful Misconduct.

Defendants' demurrer is replete with colloquy about how plaintiff has failed to plead any facts demonstrating that defendants' conduct rose above the level of mere negligence.

Defendants David X., M.D. and Doctors Medical Group have offered no judicial authority as to just why plaintiff's pleaded claim for wilful misconduct fails to meet the requirements of that well accepted tort.

The elements of wilful misconduct are as follows:
1. actual or constructive knowledge of the peril to be apprehended;
2. actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger; and
3. conscious failure to avoid the peril.

(Witkin, 6 Summary of California Law, 9th edition, Torts, section 761)

This standard was tested in New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681. New involved two motorcyclists who sued a landowner to recover for injuries sustained while they were riding their motorcycles on defendant's property. In upholding the jury's finding that defendant had acted wilfully or in conscious disregard of its duty to plaintiffs, the New court found that the trial court's instruction of wilful misconduct did no more than state the well-established objective component of the test of wilful misconduct. (New, supra at p. 681).

Continue reading "Wilful Misconduct By Sacramento Doctor Leads To Birth Injury, Part 3 of 5" »

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

ARGUMENT

IT IS WELL SETTLED THAT INCONSISTENT PLEADINGS ARE PERMITTED
Defendants' David X., M.D. and Doctors Medical Group's demurrer to Plaintiffs Complaint is based (initially) on the grounds that Plaintiffs first cause of action, for medical negligence, is duplicative of Plaintiff's second cause of action, for Wrongful Life.

It is well established that a plaintiff is entitled to plead inconsistent causes of action. Rader Co. v. Stone (1986) 178 Cal.App.3d 10.

Rader Co., supra, involved an appeal from an Order of dismissal following the sustaining of demurrers, without leave to amend.

In holding that inconsistent causes of action are appropriate, the Rader Co., supra, court, stated, at p.29, of 178 Cal.App.3d, as follows:

Moreover, Rader is not precluded by law from alleging in one cause of action the breach of a contract and an inconsistent theory of recovery in another cause of action. To the extent Rader's allegation in one cause of action of a fully executed contract with Stone is at odds with an allegation in a separate cause of action that PSR interfered in Rader's advantageous relationship with Stone, such inconsistency is not fatal to Rader's claims at the pleading stage, as a plaintiff is permitted to plead inconsistent or ..., alternative counts.

Continue reading "Mother and Daughter From Sacramento Sue for Birth Injury, Part 2 of 5" »

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

POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' DAVID X., M.D, AND DOCTORS MEDICAL GROUP'S DEMURRER TO AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

INTRODUCTORY STATEMENT
In response to Plaintiff's Complaint, defendants David X., M.D. and Doctors Medical Group of Sacramento, California have filed a demurrer to, and Motion to Strike portions of, Plaintiff's Complaint.

Defendants' David X., M.D. and Doctors Medical Group argue that Plaintiff's First Cause of Action, for medical negligence, on the grounds that it duplicates the Second Cause of Action, for Wrongful Life.

As will be seen from the following Points and Authorities, inconsistent pleadings have long been permitted, and therefore defendants' David X., M.D. and Doctors Medical Group's demurrer, upon grounds of inconsistency, is without merit.

Defendants' David X., M.D. and Doctors Medical Group next contend that Plaintiff's Third Cause of Action, for Wilful Misconduct, fails to state facts sufficient to state a cause of action for this tort.

Again, as demonstrated by the following Points and Authorities, Plaintiff has properly pleaded each and every element of a cause of action for Wilful Misconduct, and defendants' assertions to the contrary are specious.

Continue reading "Sacramento Physician Sued For Causing Birth Injury, Part 1 of 5" »

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

DEFENDANTS' DESTRUCTION OF CRUCIAL RECORDS OR PREVARICATION ABOUT FACTS MAY SUPPORT EVIDENTIARY SANCTIONS OR AN INFERENCE OF LIABILITY
Universal's failure to produce legible copies of the fetal monitor strips is the equivalent of a failure to produce evidence and will support an evidentiary sanction so that the defendant cannot benefit from loss of the evidence. Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3d 877, 885, 217 Cal.Rptr. 602 (even unintentional loss of evidence justifies evidentiary sanctions sufficient to cure any advantage that party might gain over opponent); Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 739, 149 Cal.Rptr. 499; Caryl Richards Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 305, 10 Cal.Rptr. 377; Newland v. Superior Court (1997) 40 Cal.App.4th 608, 47 Cal.Rptr.2d 24.

Such orders may put the requesting party in the position it would have been in had the requested discovery been entirely favorable (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 227, 240 Cal.Rptr. 489, excluding all evidence of economic loss as sanction for failure to produce financial documents), or preclude any evidence which might have been impeached by the destroyed matter. People v. Michael L. (1984) 151 Cal.App.3d 1052, 199 Cal.Rptr. 207.

A jury may find that the hospital's records or Dr. X.'s account of the birthing procedure are so far from the actual facts as to constitute willful misrepresentation, or that they willfully falsified the medical records so as to conceal what really happened. A false exculpatory statement can be evidence of consciousness of liability, and evidence that a party falsely denied knowledge of a fact permits the jury to infer that he or she had guilty knowledge. Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1841, 41 Cal.Rptr.2d 192; Evidence Code §413; Biondi v. Amship Corp., supra, 81 Cal.App.2d 751.

Continue reading "Sacramento Physicians Mishandle Baby During Delivery Resulting In Birth Injury, Part 12 of 12" »

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

EVIDENCE OF TREATMENT BELOW THE STANDARD OF CARE REQUIRES DENIAL OF THE MOTION
The fundamental rule on summary judgment is that the motion may not be granted where there is any triable issue as to a material fact. There is direct controverting evidence as to defendants' neglect, and a clear causal connection between that neglect and the injuries suffered by Sean Taylor.

In a medical malpractice action involving a birthing injury against a hospital and delivering obstetrician, the appellate court reversed a non-suit granted to defendants based on plaintiffs' failure to sufficiently establish the element of causation. Espinoza v. Little Company of Mary Hospital (1995) 31 Cal.App.4th 1304, 37 Cal.Rptr.2d 541. The Court addressed the nature of plaintiffs burden of proof as follows:

Although a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is some substance to plaintiff’s evidence upon which reasonable minds could differ.... [Citations.] (Carson v. Facilities Development Co., supra, 36 Cal.3d at pp. 838-839, 206 Cal.Rptr. 136, 686 P.2d 656.) If the existence of facts sufficient to support a recovery can logically and reasonably be inferred from the evidence, the motion must be denied, regardless of whether the evidence is also susceptible to conflicting inferences. [Citation.]... When there is doubt in the court's mind about the inferences that may reasonably be drawn from the evidence it is the duty of the court to let the case go to the jury. [Citations.] [Citation.] (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611, 278 Cal.Rptr. 900, emphasis added.) [31 Cal.App.4th at 1313]

Continue reading "Malpractice At Sacramento Hospital Causes Birth Injury, Part 11 of 12" »

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

The declaration of defendant's expert herein is no more enlightening than that in Kelley as to the merits of Plaintiffs' case. The defense expert simply attests that he read the records and did not see anything in it that fell beneath the standard of care. He recites, for example, that the Woods corkscrew maneuver in the McRoberts position was applied, without any evidence that it was properly performed. In effect, he regurgitates the hearsay of the records and announces that the records do not contain any admission of neglect.

Nor has Universal's expert demonstrated his competence to attest to the standard of care governing nurses, stated what that standard is so that the Court can assess his opinion, or established that there is no evidence of nurse neglect in the Woods or McRoberts procedures.

Universal's failure to give its expert the photographs taken during delivery actually supports an inference against it. Hagy v. Allied Chemical & Dye Corp. (1953) 122 Cal.App.2d 361, 372, 265 P.2d 86 (defendant's failure to provide its expert with data regarding concentration of toxic fumes supports inference against it); Biondi v. Amship Corp. (1947) 81 Cal.App.2d 751, 185 P.2d 94.

Continue reading "Baby Injured During Delivery Due To Sacramento OB/GYN's Malpractice, Part 10 of 12" »

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

UNIVERSAL'S EVIDENCE FAILS TO CARRY ITS BURDEN AS TO DIRECT LIABILITY
Universal relies upon the recitation of medical records in the declaration of Peter Fine, concluding with the opinion that the conduct described therein complies with the standard of care. As Kelley v. Trunk (1998) 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122, held, conclusory declarations without sufficient factual foundations are not sufficient to demonstrate the absence of a triable issue regarding standard of care.

In Kelley, the defendant physician submitted an expert declaration citing the records reviewed and then, after three paragraphs describing the records, announcing that At all times.. Dr. Trunk acted appropriately and within the standard of care under the circumstances presented. (Id. at 522) The Court of Appeal found that the declaration was inadmissible and failed to carry defendant's burden on summary judgment.

Expert witnesses normally testify concerning the bases for their opinions, and the court may require the expert to state the bases before giving his opinion. (See Evid.Code, §§802.) Standard instructions give juries the common sense directive that [a]n opinion is only as good as the facts and reasons on which it is based.' (BAJI 2.40.) An expert's opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. (Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58, 45 Cal.Rptr. 129,403 P.2d 385; Griffith v. County of Los Angeles (1968) 267 Cal.App.2d 837, 847, 73 Cal.Rptr. 773 [expert opinions, though uncontradicted, are worth no more than the reasons and factual data upon which they are based]; BAJI 2.40 [ [Y]ou may not arbitrarily or unreasonably disregard the opinion testimony... which was not contradicted ... unless you find that it is not believable... ].)
Applying the foregoing standards here, we conclude that summary judgment was improperly granted.

Continue reading "Child Suffers Birth Injury At Sacramento Hospital, Part 9 of 12" »

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

Nothing in the moving papers addresses the question of whether Universal complied with its duty to assure the competence of physicians - including Dr. X. - practicing in its facilities. The bare assertion that plaintiffs cannot prove their anticipated claim is an improper attempt to shift initial burden to the responding party. To support summary judgment on a theory that plaintiff has no evidence to prove an element of his case (Rio Linda School District v. Superior Court (1997) 52 Cal.App.4th 732, 735, 60 Cal.Rptr.2d 710, Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 37 Cal.Rptr.2d 653), it is not enough to simply suggest that plaintiff cannot prove its case. Certain Underwriters at Lloyd's of London v. Superior Court (1997) 56 Cal.App.4th 952, 955-957, 960, 65 Cal.Rptr.2d 82.

Allowing the moving party to allege that the opposing party has no evidence would effectively place an initial burden upon the opposing party that would directly contradict the procedure for burden shifting expressly set forth in the amended statute. Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 81, 81 Cal.Rptr.2d 360. The moving party is required to make an affirmative showing of the absence of evidence to establish a prima facie case. (Id. at 83) To do so, the moving defendant should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186, 48 Cal.Rptr.2d 197. The burden does not shift until a review of all direct, circumstantial and inferential evidence available to the moving defendant establishes the absence of evidence to support the plaintiffs cause of action. Scheiding, supra, 69 Cal.App.4th at 83.

Continue reading "Physician At Hospital In Sacramento Sued For Medical Malpractice, Part 8 of 12" »

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

Universal Presents No Evidence Whatsoever as to Elam Liability
Universal's motion asserts that plaintiff has no evidence to support its liability under Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 183 Cal.Rptr. 156, under which a hospital may be held responsible for the negligent conduct of independent physicians who, based on their staff privileges, avail themselves of the hospital's facilities. Universal presents no evidence that it did anything to assure the competence of physicians practicing there, and thus offers nothing to disprove its liability under the Elam theory. It does not even raise the matter in its Separate Statement.

Elam recognizes, first, that case precedent establishes a hospital has a duty of reasonable care to protect patients from harm .., including the discovery and treatment of their medical conditions. Secondly, Elam holds that as a general principle, a hospital's failure to insure the competence of its medical staff through careful selection and review creates an unreasonable risk of harm to its patients. (Id. at 340) Reviewing the controlling statutes and regulations, the Court noted that:

Regarding staff selection, although the medical staff is to be self-governing, a hospital must provide procedures for selection and reappointment of the medical staff in accordance with JCAH standards, implying investigation of competency for initial appointment and periodic review of competency before reappointment. The hospital's duty to guard against physician's incompetency is further implied by requiring renewal of staff privileges at least every two years (implying a periodic competency review) and the periodic review of the medical records of hospital patients. Although these reviews are conducted by medical staff peer committees, the governing body of the hospital is responsible for establishing the review procedures. Finally, [Health and Safety Code] §32128 provides that the hospital rules shall include [s]uch limitations with respect to the practice of medicine and surgery in the hospital as the board of directors may find to be in the best interests of the public health and welfare... [Id. at 342]

In summary, we hold a hospital is accountable for negligently screening the competency of its medical staff to insure the adequacy of medical care rendered to patients at its facility. (Id. at 346)

Continue reading "Sacramento OB/GYN Sued For Birth Injury, Part 7 of 12" »

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

UNIVERSAL FAILS TO CARRY ITS INITIAL BURDEN ON SUMMARY JUDGMENT
On motion for summary judgment, defendant has the burden of producing evidence negating a necessary element of the plaintiff's case or establishing an affirmative defense. To succeed, a defendant moving for summary judgment must conclusively negate a necessary element of the plaintiffs case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial. Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1190, 260 Cal.Rptr. 49; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 10 Cal.Rptr.2d 748. Defendant must establish that there is no triable issue of fact with respect to any basis for liability under the complaint. United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 338, 282 Cal.Rptr. 368. The defendant has the burden of establishing that there was no room for a reasonable difference of opinion ... Rosh v. Cave Imaging Systems. Inc. (1994) 26 Cal.App.4th 1225, 1235, 32 Cal.Rptr.2d 136.

Where the Complaint alleges matters upon which a breach of duty may be based, failure of the moving party to address each factual theory supportable under the Complaint precludes summary judgment. Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 715-716, 52 Cal.Rptr.2d 821; Villa v. McFerren (1995) 35 Cal.App.4th 733, 741-746, 41 Cal.Rptr.2d 719. Where matters on which liability may be based are not conclusively disposed of by the moving papers, the motion must be denied even without opposition. Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830, 20 Cal.Rptr.2d 296.

Continue reading "Medical Malpractice Claim By Sacramento Family For Birth Injuries, Part 6 of 12" »

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

C.C.P. §340.5 GOVERNS DELIVERY MALPRACTICE AND EXTENDS THE LIMITATIONS PERIOD TO THE CHILD'S EIGHTH BIRTHDAY
It is firmly established that an infant's claim for medical malpractice - whether the injury is prior to, contemporaneous with or subsequent to birth - is subject to the limitations period of C.C.P. §340.5, governing medical malpractice actions generally and medical malpractice actions by minors specifically, and that C.C.P. §340.4 has no bearing on such actions.

3 Witkin, Cal. Procedure 4th, Actions §542, discussing prenatal injuries, observes that C.C.P. §340.5, part of the Medical Injury Compensation Reform Act, does not expressly refer to former Civil Code §29 or C.C.P. §340.4, but supplants their period of limitations in medical malpractice actions. (Emphasis in original.) Haning, Flahavan, Kelly, et al., California Practice Guide - Personal Injury (Rutter 2006) §5:138, likewise states:

Neither C.C.P. §352 nor C.C.P. §340.4 applies to minors' actions predicated on medical malpractice. Even if the claim alleges prenatal injury, the altogether different limitations period contained in C.C.P. §340.5 is controlling. [Young v. Haines (1986) 41 Cal.3d 883, 226 Cal.Rptr. 547; Photias v. Doerfler (1996) 45 Cal.App.4th 1014, 1018-1020, 53 Cal.Rptr.2d 202, 204-205]

Hence, C.C.P. §340.4 governs prenatal injuries from general negligence, products liability, etc., but not medical malpractice. It was enacted to abolish the common law rule that an unborn child has no independent existence and, therefore, no right of action for injuries suffered before its birth, but at a time when there was no distinction in limitations rules between medical malpractice and other negligence claims. Young v. Haines (1986) 41 Cal.3d 883, 892, 226 Cal.Rptr. 547. 5 Witkin, Summary Cal. Law 10th, Torts, §728, pg. 1053. The adoption of MICRA in 1975, with its distinct limitations rules, overrode any role that §340/4 might have had in medical malpractice cases.

Continue reading "Severe Birth Injury Due To Malpractice In Sacamento, Part 5 of 12" »

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

William Taylor describes his wife's legs as still in the stirrups while she was being instructed to again push, after which the baby's head popped out all the way to the neck before the shoulders. If a proper McRoberts position had been performed the mother's legs would have not remained in the stirrups.

Mr. Taylor saw Dr. Y. grab the infant by the head, with her thumb on his forehead and a hand around his neck, and turn him to the left. She was holding her hands outside the body and around the neck area. She did not go inside the vagina. A photograph clearly depicts the infant's head fully out of the vagina, facing upward, and shows the physician's hands around the head and necks, fully outside the vagina. This does not depict the Woods maneuver described in the Delivery Notes. The maneuver described by the father, and depicted in the photograph is beneath the standard of care in that it allows excessive rotation of the neck, which can cause the Erb's Palsy and brachial plexus injury that is described in Sean Taylor's records. Mr. Taylor saw Dr. X. turn the baby to the left causing a popping sound, leading Mr. Taylor to believe that Sean's neck may have been broken. Dr. Z. concludes that it is probable that this was the brachial plexus injury leading to the Erb's Palsy suffered by Sean, caused by excessive force and improper traction on the head and neck during the delivery.

Critical to the hospital's liability is the fact that the mother was not in the correct McRoberts position, but had her legs in the stirrups. The positioning of the mother for this procedure is the responsibility of the nurses, who assuredly should have recognized that the procedure was no being properly performed, and who assisted in this mangled form of delivery notwithstanding that the problems would have been evident to any obstetrics specialist present.

Continue reading "Medical Malpractice At Sacramento Hospital Leads To Birth Injury, Part 4 of 12" »

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

Sean's father, William Taylor, was present in the delivery room and photographed the delivery. His deposition testimony, and his photographs, provide direct evidence that is in direct conflict with the events described by Dr. X. in her delivery notes.

Q. Okay. Did he come out straight, his head, or was he sideways?

A. He came out straight. After she cut and told her to push, then his head came out just like I'm looking up straight up at the ceiling. It came out like that and stopped.

Q. Then what happened after his head came out?

A. She grabbed him by the forehead and put her hands around the neck part.

Q. Then what happened after his head came out?

A. She grabbed him by the forehead and put her hands around the neck part.

Q. You said grabbed him on the forehead?

A. Put her thumb on the forehead, you know, like you grab a football. You would grab a head like this, like -- I know you can't put like this on here (indicating). She grabbed his head and had her thumb on the forehead and had her hand around his neck, and then she turned him.

Q. So one hand, then was on his head; and the other hand was on his neck?

A. Right.

Q. Which hand was on his head?

A. I can't recall. I think it was the right hand. I think. I'm giving you an estimate.

Q. I don't want you to guess.

A. Well, I can't tell you for sure which hand was on his forehead.

Q. You do know that one hand was on his head and one hand was on his neck, correct?

A. That's right. That's correct.

Continue reading "Botched Delivery Results In Birth Injury For Sacramento Family, Part 3 of 12" »

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

STATEMENT OF THE CASE
This is medical negligence action arises out of serious nerve injury suffered by Sean Taylor during birth on 6/4/1998. Sean's mother, Edith Taylor, was under the care of obstetrician Dr. Vanessa X. when she was admitted to Sacramento's Universal Medical Center at 1:15 p.m. on June 3, 1998. Edith Taylor was then in early labor, at almost 41 weeks, based upon an estimated date of confinement of 5/29/98.

Dr. X. ordered induction of labor by Pitocin drip and artificial rupture of Edith's membrane, which reportedly resulted in the release of clear amniotic fluid. Epidural anesthesia was begun, and labor continued throughout the balance of that day and into the early morning hours of June 4. During that time, the patient was started on antibiotics for a temperature of 101.

At 3:40 a.m. on June 4, Pitocin was discontinued, and at 4:00 a.m. a vaginal examination revealed that the patient was 9 cm dilated and at 1 station. I.V. antibiotics were continued and the mother was instructed to continue pushing to assist in delivery, which occurred at 5:10 a.m.

The Popras 6 form for Delivery Data and Problems lists shoulder dystocia as a birth complication. The one minute Apgar scores were zero score for respirations, muscle tone and color, requiring emergency resuscitation. Erb's Palsy was noted at birth

Continue reading "Obstetrician Responsible For Birth Injury At Sacramento Hospital, Part 2 of 12" »

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

Plaintiffs' Memorandum of Points and Authorities in Opposition to the Motions for Summary Judgment of Universal Medical Center and Vanessa X., M.D.

INTRODUCTION
Universal's statute of limitations argument has been clearly and conclusively rejected by the Supreme Court of this state, as well as all relevant decisions of the intermediate courts. An infant's claim for medical malpractice resulting in birth injuries is governed by C.C.P. §340.5, not §340.4 and may be filed at any time prior to the child's eighth birthday.

Universal’s contention that there is no evidence supporting its liability under the Elam rule requiring a hospital to assure the competence of physicians and surgeons with staff privileges is unsupported by even the hint of evidence, and the failure to negate such liability means that the

Court is required to deny the motion as to substantive grounds of no liability. The claim that there was no neglect in the provision of medical care is flatly contradicted by percipient and photographic evidence, and the assertion that there was no causal connection between that care and the minor's injuries is frivolous. This Court so held in denying the motion for summary judgment of Defendant Vanessa X., M.D. on May 15, 2007. This child suffered exactly the injuries that would be expected from the dangerous and improper extraction of the baby in the McRoberts position by twisting his head to extract him from the birth canal.

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