Sacramento Birth Injury Lawyer Blog

The following blog entry is written to illustrate an example of a birth injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

When the labor and delivery nurse returned from lunch at 11:30 a.m., she noticed decreased variability with late decelerations on the fetal movements. At 11:50 a.m., she called the obstetrician, who arrived at Plaintiff' bedside by 12:15 p.m. Fifteen minutes later, the doctor ordered a C-section, and the baby, plaintiff Alex, was delivered at 1:05 p.m. with no breathing and a heart rate below 100. The respiratory therapist had difficulty placing the ET tube, not succeeding until 1:18 p.m.

At 1:30 p.m., pediatrician Evans was called, and the neonatal intensive care unit transfer team arrived at 3 p.m. The pediatric neurologist at the transfer hospital, ABC Hospital of Folsom, diagnosed hypoxic-ischemic encephalopathy, and Alex was discharged on June 8.

In December, Alex underwent placement of a gastrostomy feeding tube.

Claiming physical damages, Plaintiffs--including plaintiff and father, age and profession undisclosed--sued the hospital and its owner, as well as the University of California and Hammer for medical malpractice.

Pediatrician Earl was originally included as a defendant, but was dismissed with prejudice in exchange for a waiver of costs at mediation.

Plaintiffs' counsel claimed that Hammer and the nurse practitioner failed to recognize the abnormal progress of Plaintiff' pregnancy and thus failed to order ultrasound testing and earlier delivery before she went into labor.

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

Continue reading "Baby Born With Cerebral Palsy in Sacramento Birth Injury Lawsuit, Part 2 of 2" »

The following blog entry is written to illustrate an example of a birth injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

INJURIES: Alex was born with cerebral palsy with moderate to severe developmental delay.

Facts:
On May 21, 2004, plaintiff, age and profession undisclosed, was due to give birth. In the preceding months, her pregnancy was being followed by obstetrician Hammer and a nurse practitioner at the ABC Medical Center.

All exams were recorded on a computer. An early ultrasound was normal, and Plaintiff’s AFP testing was normal. However, the computer program made it difficult to compare results from successive exams without printing out additional documents. Thus, there were no notes recording that Plaintiff had minimal weight gain in her last trimester or that there was a significant discrepancy between her fundal heights and gestational age.

On May 8, the fundal height dropped from 36 cm to 33 cm with a three-pound weight gain over the previous 11 weeks.

On May 14, Plaintiff was at 39 weeks gestation, and the fundal height was 34 cm.

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

Continue reading "Sacramento Birth Injury Case Results After Doctor Fails to Report Abnormal Pregnancy Issues, Part 1 of 2" »

The following blog entry is written to illustrate an example of a birth injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Instead of attending to her patient as she had promised, defendant Brady kept her vacation plans at that time without properly transferring plaintiff's care to another doctor. Plaintiff said she felt alone, frightened, and abandoned. During defendant Brady's absence, plaintiff was examined by an on-call perinatologist covering at the hospital that weekend, Dr. Grady. Grady testified that he was asked by someone to see the patient, but that defendant Brady never conferred with him over the next three days.

Mercy Hospital’s attending perinatologist, Dr. Herman, saw plaintiff on October 22, 2004. Although defendant Brady was still plaintiff's physician, plaintiffs said, she was not caring for or communicating with her patient. When Dr. Herman took over plaintiff's care, he observed through vaginal ultrasound that defendant Brady had performed the cerclage improperly and had used the wrong procedure. The cerclage failed as a result. By the time plaintiff was informed about her true condition and Dr. Herman explained her options to receive an abdominal cerclage to try to rescue the babies, it was too late. Plaintiff's lower, exposed twin (minor plaintiff #1) had developed IAIS-Intra-Amniotic Infection Syndrome, which set off a series of events. The option for an abdominal, rescue cerclage was no longer available. The infection necessitated a lengthy hospital stay, and ultimately, when it spread from twin #1 to the upper twin (minor plaintiff #2), the babies had to be delivered by Cesarean Section at 24 weeks gestation.

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

Continue reading "Sacramento Birth Injury Lawsuit Brought Against Doctor, Part 3 of 3" »

The following blog entry is written to illustrate an example of a birth injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Plaintiff remained in the hospital for two days but said she was never told that her cervix tore or that defendant Brady had encountered complications with the procedure. Defendant Brady also failed to monitor the cerclage after the procedure through ultrasound. Plaintiff was sent home with limited instructions for bed rest. Despite knowing that she had encountered complications with the procedure, the doctor assured plaintiffs and plaintiff’s mother, that the operation had been a complete success and that there was “no way” that the cerclage would come undone. After returning home, plaintiff complied with her doctor's orders and stayed off her feet as much as possible. Two weeks later, she experienced a loss of fluid and sought an emergency appointment with her doctor, who was again unavailable for several days. After plaintiff, her husband, and her mother all called defendant Brady's office without success in reaching the doctor, plaintiff finally spoke to an after-hours on-call physician, who advised her she could wait to see her doctor until the next morning. The next day, October 18, 2004, defendant Brady was gone to a conference, so plaintiff was seen by defendant Brady's nurse practitioner, who observed that she was now up to 4 cm dilated with the membranes of the lower twin presenting through the cervix. Colleen was rushed to the hospital by fire department paramedics.

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

Continue reading "Twins Suffer Birth Injury From Sacramento Doctor Negligence, Part 2 of 3" »

The following blog entry is written to illustrate an example of a birth injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

CASE INFORMATION
FACTS/CONTENTIONS
According to court records: Plaintiffs, husband and wife, became pregnant with twins through in-vitro fertilization in approximately June 2004 after attempting for five years to get pregnant. Plaintiff had previously suffered an ectopic pregnancy resulting in the loss of one fallopian tube.

Plaintiff presented with numerous high risk factors, including advanced maternal age (38 years), a negative Rh factor, a clotting disorder, and a multiple pregnancy resulting from IVF therapy when she sought medical care from defendant Brady, M.D. and her medical corporation Brady, M.D. Inc. through her medical practice located in Roseville, California in August 2004. Before seeing defendant Brady, plaintiff had been pregnant with triplets. She lost one of the babies before consulting with defendant Brady.

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

Continue reading "Doctor Negligence Results in Sacramento Birth Injuries Suffered By Twins During Delivery, Part 1 of 3" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

All of defendant's experts have reviewed the videotapes they complain of in their Motion in Limine. Not only have the experts reviewed and looked at the videotapes, but defense counsel's own experts have stated under oath that these tapes form the basis, in part, of their own opinions regarding the nature of injury and prognosis of this child. Never at any time prior to plaintiffs receipt of this Motion in Limine has the defense ever requested in any way to depose or question Dr. Smith or Cynthia Lee. Never at any time prior to plaintiffs receipt of defendant's Motion in Limine has defense counsel expressed a desire to supplemently designate their own experts in these particular areas. Consequently, it is disingenuous at best, and intentionally misleading at worst, for them to state in their Motion: Therefore, Dr. Johnson was unable to depose them to assess whether they are qualified or to assess what was done during the testing. Further, because these alleged experts were not designated as such, Dr. Johnson was unable to supplemently designate his own experts in this area.

As stated previously, the defense has known for over a year regarding the reliance upon these reports by plaintiffs experts. If any side is engaged in gamesmanship, it is the defense who waits until the last moment to make these spurious allegations.

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

Continue reading "Sacramento Physician's Negligence Causes Child's Birth Injuries, Part 5 of 5" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Here, Stefan Hall, M.D., is a pediatric neurologist. He has seen this child on three occasions and along the way has provided the child with recommendations for treatment and has reached a prognosis and opinions relative to future care needs of this child. Even outside of the forensic realm, pediatric neurologists always review outside tests done by physical therapists and speech therapists in an effort to more finitely define the specific delays and issues in those areas. There can be no question that these reports are quite specifically the type of reports and findings that pediatric neurologists always, even outside the realm of legal testimony, rely on in order to assist, prognose and make appropriate recommendations.

Sally Jackson is a registered nurse specializing in case management, rehabilitation and life care planning. Her entire profession is based upon review of outside physicians, physical and speech therapists. In her area of expertise inevitably and in every situation she relies upon the specific types of studies and testing performed by Dr. Hadley Smith and Ms. Cynthia Lee.
All of plaintiffs experts have indicated specifically that in part they relied upon these specific reports and the video in order to assist them in formulating their opinions.

Notwithstanding whether the reports themselves can be introduced into evidence, there can be no question based upon the above authority that plaintiffs experts can rely upon the findings and reports and make known their reliance upon same and the contents therein.

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

Continue reading "Sacramento Boy Suffers Birth And Brain Injuries, Part 4 of 5" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

If anything, after plaintiffs experts testify regarding the matters relied upon by them from Dr. Smith and Ms. Lee's report, the defense can certainly request a jury instruction that evidence from those reports only be received for that limited purpose, specifically as part of the information upon which those experts base their opinion. In fact, that was specifically what was done in the Kelley case.

Additionally, defendant's reliance upon the case of Mosesian v. Pennwalt Corporation (1987) 191 Cal.App.3d 851 is misplaced. (In defendant's Motion this case is incorrectly cited as Mossman v. Pennant Corporation) In fact, the Mosesian facts are radically different than presented here. In Mosesian, a defense expert specifically testified as to the verbal hearsay opinions of six outside experts regarding the very specific conclusion that that expert was testifying to. This is not remotely close to the issues presented here. Additionally, the facts in Mosesian did not involve a medical issue with physicians relying on reports or studies and/or testing done by other medical experts.

In fact, the court in Mosesian acknowledged the rule and holding of Kelley v. Bailey. The court states:

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

Continue reading "Doctors At Sacramento Hospital Cause Catastrophic Birth Injuries, Part 3 of 5" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

David Greene was seen and evaluated by a speech therapist, Hadley Smith, Ph.D. On two separate occasions, specifically October 29, 2002, and approximately ten months later. Additionally, plaintiff was seen and evaluated at ABC Pediatric by registered physical therapist, Cynthia Lee, P.T., P.C.S. Also on two separate occasions, specifically September 20, 2002 and about ten months later. Two videotapes were produced in conjunction with the ABC Pediatric therapy evaluations.

A number of David Greene's medical experts recommended these tests be done in order to further provide them with additional information in which to base their expert opinion. This was done. True and correct copies of each and every report by Hadley Smith, Ph.D. and Cynthia Lee, P.T. are attached hereto as Exhibits 1, 2, 3 and 4, respectively.

PLAINTIFF'S EXPERTS, STEFAN HALL, M.D., HANK WHITE, PH.D., AND SALLY JACKSON MAY PROPERLY RELY UPON AND TESTIFY REGARDING THE TEST RESULTS AND VIDEOTAPES DONE BY HADLEY SMITH, PH.D. AND CYNTHIA LEE, P.T.

Evidence Code §801 states:

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

Continue reading "Sacramento Boy Suffers Birth And Brain Injuries At Local Hospital, Part 2 of 5" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Plaintiff, David Greene's, Opposition to Defendant, Robert Johnson, M.D.'s, Motion in Limine No. 10

Plaintiff, David Greene, a minor, by and through his Guardian ad Litem, Owen Greene, hereby opposes defendant, Robert Johnson, M.D.'s, Motion in Limine No. 10 for order precluding plaintiff from introducing all reports, data, opinions, etc., of speech therapist, Hadley Smith, Ph.D., and physical therapist, Cynthia Lee, P.T., and from allowing all experts from testifying and relying on their testing materials.

This Opposition is based on the attached Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

As a result of defendant, Robert Johnson, M.D.'s, negligence, minor child David Greene suffers from two separate and distinct injuries; a brachial plexus/ Erb's palsy to the right upper extremity and an hypoxic Ischemic Encephalopathy resulting in residual brain injury, behavioral, cognitive and speech deficits.

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

Continue reading "Sacramento Family Files Lawsuit For Child's Birth Injuries, Part 1 of 5" »

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

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

On appeal, the Easterby court distinguished its circumstances from that of Kennemur and Jones, stating: The present case differs from Kennemur, Jones and [Bonds v. Roy (1999) Cal.4th 140 [83 Cal.Rptr.2d 289] in one salient respect: Defendants learned approximately three months before trial that Brown would go beyond his original deposition testimony and offer a causation opinion at trial ... [U]nlike the defendants in Kennemur and Jones, and Bonds, defendants in this case had the opportunity to take Brown's deposition in light of his changed opinion and prepare for cross-examination and rebuttal of his testimony. The elements of unfair surprise and prejudice present in Kennemur and Jones, and Bonds are entirely absent in this case. Id. at 780.

The defense acknowledges that plaintiffs in this case did not receive as much advance knowledge regarding Dr. White's life expectancy testimony as the defendants did in Easterby. However, plaintiffs still had an opportunity to meet and confer with the defense on the issue of Dr. White's testimony for a period of time after the completion of Heather Xitco's deposition. Xitco's deposition was completed on March 30. Trial is not set to begin until April 19. Plaintiffs could have contacted the defense about re-deposing Dr. White on the limited issue of life expectancy, and could have imposed conditions on the deposition to make it more convenient for them, such as requiring the deposition to take place in their office to cut down on attorney time.

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

Continue reading "Sacramento Physician And Hospital Responsible For Child's Birth Injuries, Part 4 of 4" »

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

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

Plaintiff Denise Easterby was injured while at a dentist's office when a dental assistant stepped on a wire connected to a sensor in plaintiff's mouth. She received pain management and physical therapy for pain in various areas of her body for several months, to little success. Thereafter, plaintiff was referred to an orthopedic surgeon, who diagnosed her with nerve compression, herniated disks and compressed spinal nerves. He performed successful surgery to resolve the conditions.The orthopedist, Dr. John Brown, was retained as an expert by plaintiffs and was deposed by the defense approximately seven months before trial. At deposition, Dr. Brown testified that he had not formed any opinions on the subject of causation as they related to the initial dental accident. Id. at 775. When asked whether he had an opinion as to what caused the plaintiff to require back surgery (whether it was a pre-existing condition or the result of the dental accident), the doctor said that he didn't know what caused it. Id.

Thereafter, three months before trial, plaintiffs sent the defense correspondence indicating that Dr. Brown now intended to express as to causation at trial. Id. at 775-776. The defense did not seek to depose the doctor after receipt of the letter. Id. at 776.

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

Continue reading "Doctor's Care Below Standard In Sacramento Birth Injury case, Part 3 of 4" »

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

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

In Jones, the plaintiff sued her former attorney for legal malpractice after her ex-husband stopped paying marital support. At the plaintiff's expert's deposition, the expert testified that he believed the defendant's conduct fell below the standard of care when he negotiated the underlying divorce settlement and judgment. When asked whether he believed the defendant's conduct fell below the standard of care in other areas of his representation, the expert testified Not that I'm prepared to testify to at this time. Jones, at 563. When asked whether he anticipated arriving at any other opinions, the expert testified, No, but if I do, you will be notified well in advance, so as to be able to properly exercise your discovery rights. Id.

At trial, the expert testified that the defendant's conduct fell below the standard of care when he failed to properly secure the source of plaintiff's marital support income, a task unrelated to his negotiation of the underlying settlement and judgment. The trial court excluded the pinion, holding that it "would be grossly unfair and prejudicial to permit the expert to offer additional pinions at trial" after he had made affirmative representations that he would not do so at deposition. Id. at 564-565.

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

Continue reading "Sacramento Hospital Sued For Causing Birth Injuries, Part 2 of 4" »

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

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

Opposition of Defendants National Healthcare Corporation and Memorial Hospital, Inc., to Plaintiffs Jermaine and William Hills’ Motion in Limine #3 to Exclude Opinion of Jeffrey White, M.D., on Decedent's Life Expectancy

THE INSTANT CIRCUMSTANCES DIFFER FROM THE CASES RELIED UPON BY PLAINTIFF

Plaintiffs rely on the cases of Jones v. Moore (2000) 80 Cal.App.4th 557 [95 Cal.Rtpr.2d 216] and Kennemur v. State of California (1982) 133 Cal.App.3d 907 [184 Cal.Rtpr. 393] in support of their position that Dr. White's opinion relative to decedent's life expectancy should be excluded at trial because he did not offer this opinion at his deposition. However, this case differs from those matters.

In Kennemur, the plaintiff attempted to call an expert to testify about causation at trial. However, in three depositions prior to trial, the expert testified that he had no opinion to offer on causation. Kennemur, at 912-913. On that basis, the trial court did not allow the expert to testify on causation, holding that the plaintiff was required to give the defendant notice of the general substance of the testimony that his expert was expected to give at trial either in his witness list or that this information must be disclosed during the expert's deposition itself. Id. at 919.

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

Continue reading "Father Files Suit In Sacramento Birth Injury Case, Part 1 of 4" »

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

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

Here, Plaintiff is alleging that as a result of Defendant's negligence, he suffered "Shoulder Dystocia and Brachial Plexus Palsy" while being delivered at ABC Hospital on July 26, 2000. Specifically, Plaintiff's Complaint alleges negligence including negligently failing to conform to the standard of care with respect to the prenatal care and treatment to plaintiff in utero and to his mother, and with respect to the use of all reasonably safe medical alternatives of obstetric procedures during labor and delivery of plaintiff. Plaintiff is clearly claiming birth-related injuries.

Since Code of Civil Procedure § 340.4 was enacted in 1994, more than ten years after Code of Civil Procedure § 340.5 was enacted, and because Code of Civil Procedure § 340.4 more particularly pertains to birth related injuries caused by medical malpractice, the former statute should override the latter. Therefore, and according to Code of Civil Procedure §340.4, Plaintiffs opportunity to commence this action expired on July 26, 2007.

The Supreme Court has held that when the plaintiff is a minor, it is the knowledge or lack thereof of the parents which determines when the cause of action accrues . Whitfield v. Roth (1974) 10 Cal, 3d 874, 885. Here, based upon the nature of the alleged injuries, Plaintiff, by and through his parents and legal guardians, would have had knowledge of the claimed injury long before the Complaint was filed. Infants with Brachial Plexus Palsy are usually identified in the newborn nursery during the first week of life. The most obvious feature of the disorder is lack of mobility in the arm. Arguably, as such, Plaintiff's parents would have had knowledge of Plaintiff's injury over eight years prior to the filing of their Complaint, and before the tolling of the statute of limitations pursuant to Code of Civil Procedure § 340.4.

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

Continue reading "Sacramento Hospital Sued For Malpractice And Birth-Related Injuries, Part 6 of 6" »

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

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

PLAINTIFF'S COMPLAINT IS BARRED BY THE STATUTE OF LIMITATIONS

Code of Civil Procedure § 340.4 provides in part:

"An action brought by or on behalf of a minor for personal injuries sustained before or in the course of his or her birth must be commenced within six years after the date of birth, and the time the minor is under any disability mentioned in Section 352 shall not be excluded in computing the time limited for the commencement of the action." Conversely, Code of Civil Procedure § 340.5 indicates that actions against a health care provider by a minor shall be commenced within three years from the date of the alleged wrongful act-except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.

To clarify such statutory inconsistencies, the Supreme Court has held that the general rule is that when a general and particular provision [is] inconsistent, the latter is paramount to the former. Young v. Haines (1986) 41 Cal. 3d 883. The Court in Young, ultimately applied Code of Civil Procedure § 340.5 to Plaintiffs claim for birth injuries. However, the specifically applicable to birth-related injuries statute, Code of Civil Procedure § 340.4, had yet to be enacted. The present case is dissimilar to Young as that case involved potential allegation of intentional concealment of birth-related injuries, whereas, the instant case does not contain any such allegations.

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

Continue reading "Sacramento Child Suffers Catastrophic Birth Injuries, Part 5 of 6" »

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

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

THE CARE AND TREATMENT RENDERED BY DR. LEE DID NOT CAUSE OR CONTRIBUTE TO PLAINTIFFS' INJURIES

In California, the substantial factor test defines the scope of conduct subject to liability, i.e., conduct which is a cause in fact of a plaintiff's claimed injury or harm. That test was set forth in Mitchell v. Gonzales (1991) 54 Cal.3d 1041. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. (Id. at 1052-1053.)

The element of causation is satisfied in a medical malpractice case when a plaintiff produces sufficient evidence to allow the jury to infer that in the absence of the defendant's negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. (Alef v. Alta Bates Hospital (1992) 5 Cal.App. 4th 208, 216.)

Plaintiffs cannot prove medical causation. Dr. Black's opinion is to a reasonable degree of medical probability that none of the actions or inactions by Dr. Lee caused or contributed to any injury claimed by the minor plaintiff, Sean Brown.

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

Continue reading "Medical Malpractice By Sacramento OB/GYN Causes Birth Injuries, Part 4 of 6" »

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

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

THE CARE AND TREATMENT RENDERED BY DAVID LEE, MD, WAS WITHIN THE APPLICABLE STANDARD OF PRACTICE

Plaintiff essentially contends that Dr. Lee failed to properly deliver Sean Brown, resulting in an Erb's palsy. In order for plaintiff to hold Dr. Lee liable for medical malpractice, plaintiffs must establish the applicable standard of care and the defendant's breach of that standard.
The declaration of board-certified OB/GYN, Hank Black, M.D., and supporting evidence filed herewith, establish that Dr. Lee complied with the requisite standard of care. Because plaintiff's contentions against Dr. Lee clearly involve actions not within the common knowledge of laymen, the standard of care must be decided on the basis of expert testimony. Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.

Based on the medical evidence, Dr. Black's opinion is that David Lee, M.D., complied with the standard of care regarding the care and treatment she rendered to Sean Brown.

Dr. Black's opinions are supported by the medical evidence. The evidence reflects that Ms. Brown came into the hospital in active labor. Dr. Lee was contacted at 1:00 a.m. and arrived by 1:30 a.m. Shoulder dystocia was encountered and properly handled by Dr. Lee resulting in the delivery of a live baby boy, Sean Brown.

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

Continue reading "Improper Delivery Of Sacramento Boy Leads To Birth Injuries, Part 3 of 6" »

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

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

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This is a medical malpractice action arising from the birth of Sean Brown. Dr. Lee was only involved in the delivery of the infant on July 26, 2000. The action is brought by Sean Brown, a minor, by and through his mother and Guardian ad Litem, Randi Brown. Plaintiff alleges that Defendant negligently provided prenatal health care and treatment to Plaintiff in utero resulting in injuries to Plaintiff and damages. Plaintiff further contends that Defendant was negligent with respect to not offering reasonably safe alternatives to obstetric procedures during the labor and delivery of Plaintiff.

As set forth in the declaration of board-certified OB/GYN Hank Black, M.D., it is Dr. Black's opinion that the care and treatment rendered to Sean Brown by David Lee, M.D., was within the standard of practice, and did not cause or contribute to any of his injuries.

The present Motion will also show that Plaintiff's Complaint is time barred by the statute of limitations set forth in Code of Civil Procedure § 340.4. Pursuant to that code section, Plaintiff should have filed his Complaint on or before July 26, 2007, therefore, Plaintiffs instant Complaint is barred by the statute of limitations.

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

Continue reading "Sacramento Hospital Sued For Boy's Birth Injuries, Part 2 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Defendant David Lee, M.D.'s, Notice of Motion and Motion for Summary Judgment, pursuant to Code of Civil Procedure § 437c, as to Plaintiff Sean Brown’s Complaint.

This Motion is brought on the grounds that the complaint has no merit as to moving defendant; further, no act or omission to act by Dr. David Lee caused or contributed to any injuries or damages alleged by plaintiff.

In the alternative, Defendant David Lee will move for summary adjudication, pursuant to Code of Civil Procedure § 437c, subd. (f), as to the following claim set forth in Plaintiffs Complaint on the following grounds:

Issue Number One: Timeliness of Plaintiff's Complaint

Plaintiffs Complaint has no merit because Plaintiff fails to establish the elements necessary for a timely medical malpractice claim for personal injuries sustained before or in the course of birth. Pursuant to Code of Civil Procedure § 340.4, Plaintiff, born on XX/XX/2001, should have filed his Complaint on or before July 26, 2007, in order to be considered timely. The complaint was not filed until October 22, 2007.

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

Continue reading "Family Sues Sacramento Doctor For Birth Injuries To Son, Part 1 of 6" »

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

SYMPATHY PLEAS ARE IMPROPER AND VIOLATE THE LAW

Whether or not following this incident defendant Green was remorseful, depressed, or in any other way was upset over this incident and its consequences is irrelevant to any issue in this case, and any evidence of it or argument would be unduly prejudicial and involve an undue amount of time to rebut. Any plea of sympathy for Defendant Green 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 a plea 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 SYMPATHY PLEAS. AS IT WOULD RESULT IN PREJUDICE TO PLAINTIFF. 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:

Continue reading "Medical Malpractice Suit Filed Against Sacramento Dcotors For Birth Injuries, Part 2 of 2" »

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

Plaintiffs' Motion in Limine to Prohibit Argument or Evidence of Defendant's Grief, Sorrow or Remorse

PLEASE TAKE NOTICE that Plaintiffs will move this court in limine, before trial and selection of jury, for the following orders:

1. Prohibit testimony and argument of grief, remorse or sorrow by Defendant Green with respect to plaintiff following his birth.

This motion is made on the grounds that 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

This is a medical negligence action involving the care and treatment provided to the plaintiff Amy Choo during thge course of her labor and delivery with the minor plaintiff Ellen Choo. Plaintiffs anticipate that defense counsel may improperly attempt to appeal to the trier of fact's sympathy by eliciting testimony concerning any grief, sorrow or remorse by Defendant Paul Green, M.D., following the delivery of plaintiff in an unjustified effort to relieve the defendants from liability for Plaintiffs' significant and permanent injuries.

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

Continue reading "Sacramento Obstetrician Sued For Birth Injuries, Part 1 of 2" »

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

SYMPATHY PLEAS ARE IMPROPER AND VIOLATE THE LAW

Any plea of sympathy for the individual defendants 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 a plea 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 SYMPATHY PLEAS. AS IT WOULD RESULT IN PREJUDICE TO PLAINTIFF. 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.

Continue reading "Sacramento Doctors Sued For Birth Injuries, Part 2 of 2" »

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

Plaintiffs' Motion in Limine to Prohibit Argument or Evidence of Sympathy for the Individual Defendant Physician

PLEASE TAKE NOTICE that Plaintiffs will move this court in limine, before trial and selection of jury, regarding the following orders:

1. Don't put a yoke over any of the individual defendant physician by a verdict.
2. Don't shame any of the individual defendant physician by a verdict against them.
3. Don't hurt any of the individual defendant physician's reputation.
4. Don't put the individual defendant physician out of business.
5. Don't jeopardize the individual defendant physician's medical licenses.
6. Don't hurt the defendant financially by your verdict.
7. The individual defendant physician will have to personally pay this verdict.
8. A medical malpractice verdict will discourage good doctors from trying to help patients.

This motion is made on the grounds that such evidence is not relevant to any issues presented in this action, and would be highly improper and prejudicial to Plaintiff.

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.

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

Continue reading "Sacramento Mother And Daughter File Birth Injury Lawsuit, Part 1 of 2" »

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

DR. HILL’S PERSONAL OPINIONS WOULD RESULT IN UNDUE CONSUMPTION OF TIME, WOULD CREATE A SUBSTANTIAL DANGER OF PREJUDICE TO DEFENDANT, AND CAUSE CONFUSION AND POTENTIALLY MISLEAD THE JURY (cont. below)

Since there are numerous other reasons, many unknown to Dr. Hill, why defense attorneys have not sought his expertise in the recent past a significant amount of time would be required on cross examination to establish Dr. Hill's opinions have no factual basis and are not based upon personal knowledge. Additionally, cross examination of Dr. Hill regarding medical societies, medical groups, and faculties that allegedly prohibit their members from testifying on behalf of plaintiffs would consume an inordinate amount of time.

More importantly, allowing testimony about the defense attorneys "shift in attitude," the alleged prohibition by the medical groups, faculties, and societies, or the meritorious nature of plaintiff cases, would create the very real danger of prejudice to the defendant in this matter. Dr.Hill's testimony infers not only that he has not been retained by the defense bar because the defense doesn't like his opinions, but also that if a non-supportive opinion is obtained from him the defense bar will simply find someone else. These opinions have no foundation and are highly prejudicial to the defense.

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

Continue reading "Hospital Negligence Leads To Birth Injury In Sacramento Family, Part 5 of 5" »

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

DR. HILL'S PERSONAL OPINIONS ARE NOT RELEVANT TO THE ISSUES IN THIS CASE

Evidence Code, § 350 states:
No evidence is admissible except relevant evidence.

Evidence Code, § 351states:
Except as otherwise provided by statute all relevant evidence is admissible. Relevant evidence is that which has "any tendency in reason to prove or disprove any disputed fact that is of consequence ...." (Evidence Code § 210.) The test of relevancy is whether the evidence tends, logically, naturally, or by reasonable inference to establish a material fact, not whether it conclusively proves it. (People v. Peggese (1980) 102 Cal.App.3d 415, 420; People v. Yu (1983) 143 Cal.App.3d 358, 376.)

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

The most accepted test of relevancy is: Does the evidence offered render the desired inference more probable than it would be without the evidence? (Ruiz v. Minnesota Mining & Manufacturing Co. (1971) 15 Cal.App.3d 462, 468.)

Dr.Hill's personal opinions as to why he believes he has testified on behalf of plaintiff more often in the last five years is not relevant to any of the issues in this case. Such testimony does not impact any of his opinions regarding the medical issues or evidence, and does not add anything to support his expert testimony on the medical issues. This testimony, Dr.Hill's personal opinions, does not make the purported "chill" or "shift in attitude" more probable than it would be without such testimony.

Continue reading "Sacramento Family's Medical Expert Says Birth Injury Due to Malpractice, Part 4 of 5" »

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

THE COURT HAS INHERENT POWER TO PROVIDE FOR THE ORDERLY CONDUCT OF ITS PROCESS AND PROCEEDINGS AND TO CONFORM THEM TO THE LAW AND JUSTICE

California Code of Civil Procedure § 128, provides in part as follows:

(a) Every court shall have the power to do all the following ...(3) To provide for the orderly conduct before it, or its officers.A. To amend and control its process and orders so as to make them conform to law and justice. The court's power to grant this motion in limine, while not provided for by statute, is found in the court's inherent power to provide for the orderly conduct of the proceedings before it and to control its process and proceedings to make them conform to law and justice. A trial judge has broad authority over the admission and exclusion of evidence. (Peat Marwick, Mitchell & Company v. Superior Court (1988) 20 Cal. App. 3d 272, 288.)

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

Continue reading "Malpractice By Sacramento Physicians Results In Birth Injuries, Part 3 of 5" »

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

In this case defendants deposed plaintiff's designated pediatric neurology expert, Dr. Robert Hill on September 1, 2010. During the deposition Dr .Hill testified as to his personal opinions regarding why he has testified on behalf of plaintiffs in medical malpractice cases more often in the last five years. Essentially, Dr. Hill testified that during the first twenty to 25 years he was acting as an expert, a majority of the cases were reviewed for the defense. However, over the last 10 to 15 years, a gradual transition occurred to the point now 80 % of the cases in which he is deposed as an expert are on behalf of the plaintiff.

When asked about the reason for the transition Dr. Hill testified, There's some reasons that are flattering to you and some that are not. I'll give you one reason and one reason only for now, and that is, in the last 10 or 15 years, cases on behalf of families and children are far better prepared and far more meritorious, in association with very superior plaintiff lawyers than they were in the 70s, 80s, and even early 90s. So today I'm seeing plaintiff cases that have been well worked up by highly capable lawyers and the cases are very credible.

In addition, in the case of Dylan White v. XYZ Hospital, Dr. Hill was deposed as a medical expert.

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

Continue reading "Catastrophic Birth Injury At Sacramento Hospital Due To Malpractice, Part 2 of 5" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Defendant’s Motion in Limine Limiting the Testimony of Robert Hill, M.D.

Defendant Universal Partners, Inc., hereby moves this court in limine, before jury selection and the commencement of trial, for an order precluding plaintiff's expert, Robert Hill, M.D., from testifying to, mentioning, being interrogated upon, or in any other manner conveying to the jury his personal opinions as to why he has testified on behalf of plaintiffs more often in the last five years, and specifically preclude him from providing the testimony noted in this motion or any similar testimony regarding these issues.

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

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This is a medical malpractice case involving plaintiff Mark Smith brought by his guardian and mother, Alana Smith.

Continue reading "Sacramento Family Files Lawsuit Following Child's Birth Injury, Part 1 of 5" »

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

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

DR. BLACK SHOULD BE PRECLUDED FROM GIVING ANY OTHER OPINIONS ON THE SUBJECT OF A PEDIATRIC NEUROLOGIST VERSUS AN ADULT NEUROLOGIST

Although Plaintiff’s counsel attempted to solicit from his own witness differences in education, background, training and/or knowledge of the two specialities, Dr. Black chose not to answer the question. She chose to give no admissible basis for her opinion and no opinion other than lack of credibility. Since she did not testify at her deposition of other bases or other opinions on the subject, she must now be precluded from giving same. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

An expert must, if asked at deposition, disclose the substance of the facts and the opinions which the expert will testify to at trial. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919.) In Kennemur, the court explained:

[O]nly by such a disclosure will the opposing party have reasonable notice of the specific areas of investigation by the expert, the opinions he has reached, and the reasons supporting the opinions, to the end the opposing party can adequately prepare for cross examination and rebuttal of the expert's testimony. (Whitehill v. United States Lines. Inc. (1986) 177 Cal.App.3d 1201, 1210, citing Kennemur at 919.)

Dr. Black's intentional failure to disclose precludes her from expressing such testimony at trial.

Continue reading "Sacramento Family's Persistence Helps Resolve Child's Birth Injury, Part 3 of 3" »

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

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

POINTS AND AUTHORITIES

DR. BLACK'S TESTIMONY AS TO "CREDIBILITY" IS IRRELEVANT AND IMPROPER

There is no foundation for Dr. Black being able to opine that a physician's credibility drops merely because they see patients for lawyers. In fact, she has testified a 100 times as an expert, presumably for lawyers. This credibility comment was made without any proper basis and is surely not a proper subject for expert testimony (Evidence Code section 801 and 802). As such, it should be excluded. Defense counsel can lay no foundation that Dr. Black knows anything about the credibility of Dr. Wong or is an expert on whether pediatric neurologists have more credibility than general neurologists. Evidence Code section 803 states as follows:

The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Evidence Code section §801(a) states:

"If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and ...."

Continue reading "Doctors Question Credibility Of Plaintiff's Expert In Sacramento Birth Injury Case, Part 2 of 3" »

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

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

Plaintiffs Emma and Sabrina Smith’s Motion in Limine to Exclude the Opinion of Dr. Black Regarding the Difference Between a Pediatric Neurologist and an Adult Neurologist

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

1. To exclude any and all comments or opinions of Dr. Black regarding the differences between a pediatric neurologist and an adult neurologist;
2. To exclude any and all comments or opinions that adult neurologists "who see kids only for lawyers, credibility drops";
3. To order defendant counsel to caution his witness as to the above referenced rulings;
4. To order defense counsel to approach the bench and make an offer of proof prior to soliciting any testimony that could elicit such an opinion or comment.

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

INTRODUCTION

At the conclusion of the deposition of the defense expert, Dr. Black was asked if she had expressed all of her opinions. Plaintiff’s counsel then questioned his own witness about a separate subject and a new opinion. Specifically, on page 145, Plaintiff’s counsel states that his witness will be testifying regarding whether there is a difference between an adult neurologist and a pediatric neurologist, in terms of their knowledge and ability to review the materials.

Continue reading "Sacramento Neurologist Sued For Causing Birth Injuries, Part 1 of 3" »

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

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

SUCH COMMENTS AND OPINIONS ARE IRRELEVANT, INADMISSIBLE AND PURELY SPECULATIVE

Evidence Code section 350 states that only relevant evidence is admissible. Speculation in itself is not evidence and evidence which produces only speculative inference is irrelevant. (People v. De la Plane (1979) 88 Cal.App.3d 223) Evidence Code section 352 allows the court in its discretion to 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 of confusing the issues or of misleading the jury. Testimony which invites improper speculation by the jury is construed to be misleading, confusing, and can be excluded pursuant to Evidence Code section 352. (Cox v. Superior Court (2002) 98 Cal.App.4th 670, 675.) In this case, Dr. Hill treated this child for months, from March 2001 through January 2000. She then left the University. It is purely speculation that had Emma sought out Dr. Hill again that she would have made a diagnosis she ruled out earlier.

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

During the time frame that Dr. Hill treated Emma she was only part-time at Universal Hospital, working two days a week in the clinic. She started at Universal Hospital in May 2000 and left in February 2000. It is also pure speculation that had she seen the original pediatric neurologist, Dr. Trauner, Dr. Lee or Dr. Skoglund who were available during this entire course of time, that any of them would have made this diagnosis. There is no duty to return to a physician who is wrong.

Continue reading "Sacramento Pediatric Neurologist Makes Critical Error With Birth Injury Diagnosis, Part 6 of 6" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

POINTS AND AUTHORITIES

SABRINA SMITH WAS NOT NEGLIGENT

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

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

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

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

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

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

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

THE ISSUE

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

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

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

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

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

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

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

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

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

INTRODUCTION

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

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

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 personal injury cases present such issues to the court.

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.)

Following the Supreme Court's holding in Baxter v. Superior Court (1977) 19 Cal.3d 461, the appellate court held such claims for loss of consortium by parents for an injury to a child are rejected. Id. 186 Cal.App.3d at 894. Thus, plaintiffs Karen and Thomas Smith cannot recover for any emotional distress regarding any concern for the child due to his alleged injuries or emotional distress for having to care for a child with the plaintiffs' alleged injuries, or an inability to conduct their normal activities. Any claim for emotional distress due to an impaired relationship are clearly not recoverable because such claims would be based upon a loss of filial consortium and are thus irrelevant. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

CONCLUSION

Dr. Woo and Dr. Brown met the standard of care in performing the ultrasounds on this low risk patient in the same manner as OB/GYNs throughout the community do in an office-based obstetrical practice. There was no indication to perform a basic ultrasound to look for fetal anomalies in this case. Dr. Woo and Dr. Brown were not required by the standard of care to take measurements nor were they required to refer plaintiff Nancy Smith to a perinatologist (sub-specialist). Further, plaintiff Nicholas Smith's hemimeganencephaly was not caused by the defendants, was not a result of the defendants' care and treatment, and the condition was not capable of prenatal diagnosis.

Continue reading "Sacramento Child Suffering With Permanent Brain Damage Sues For Birth Injuries, Part 8 of 8" »

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 personal injury cases present such issues to the court.

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.)

In Foy v. Green Blott (1983) 141 Cal.App.3d 1, a disabled and incompetent woman became pregnant and brought an action against her guardian and the physicians at the mental facility where she resided. The appellate court held in part that with respect to plaintiff's cause of action alleging depravation of a normal parent-child relationship, plaintiff could not recover. Foy, Id. 141 Cal.App.3d at 7. As the court stated:

Losses of parental or filial consortium are not actionable. "[T]he inadequacy of monetary damages to make whole the loss suffered, considered in light of the social cost of paying such awards constitutes a strong reason for refusing to recognize the asserted claim ...." The distinction claimed by plaintiffs actually aggravates the problems of ascertaining damages as these actions would require comparison of plaintiffs' impaired relationship with a hypothetical normal parent-child relationship rather than with any actual relationship existing before the tort. Foy, Id. 141 Cal.App.3d at 7. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, the court in Foy following Turpin held that general damages could not be awarded for the creation of an impaired parent-child relationship in place of no relationship at all. Foy, Id. 141 Cal.App.3d at 7.

Continue reading "Parents Of Sacramento Boy Suffering With Catastrophic Birth Injuries Sue Physicians, Part 7 of 8" »

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 personal injury cases present such issues to the court.

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.)

DAMAGES

With respect to damages, general damages for pain and suffering are not allowed in a wrongful life case. Turpin v. Sortini 31 Cal.3d 220 (1982); see also Gami v. Mullikin Medical Center, 18 Cal.App4th 870 (1993). In addition, damages for loss of earning capacity are not permitted in such an action for wrongful life and wrongful birth. In Andalon v. Superior Court 162 Cal.App3d 208 (1984); See also Simmons v. West Covina Medical Clinic, 212, Cal.App3d 696. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Turpin v. Sortini, 31 Cal.3d, plaintiffs, a minor child and her parents, brought a wrongful life action against the doctors, hospital and others who participated in the misdiagnosis of the hereditary defect in the child's sister, thereby depriving allegedly the parents a choice of whether or not they should conceive the plaintiff minor child. There, the California Supreme Court held that the plaintiffs were limited to recovery of the child's extraordinary medical expenses that were proximately caused by the defendants' negligence.

Continue reading "Wrongful Birth Case Filed By Sacramento Family Raises Complex Ethical Issues, Part 6 of 8" »

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 personal injury cases present such issues to the court.

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.)

In medical malpractice, the standard of care is based only on expert testimony since the acts of a medical practitioner are to be measured as to those matters peculiarly within the knowledge of experts, which is beyond the common knowledge of laymen. In Huffman, supra, the case held that the law has never held a physician or surgeon liable for every untoward result which may occur in medical practice but it demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient.

Importantly, the standard of care is to be determined by a prospective analysis. The standard of care is determined by what the health care provider is presented with and what a reasonable physician would do in that circumstance, not what he or she could have done if the outcome was foreseen, before it occurred. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Additionally, liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. See Dumas v. Cooney, 235 Cal.App.3d 1593, 1603 (1991). In an action involving the alleged failure to diagnose lung cancer, the Court in Dumas stated:

[C]ausation must be proven with a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case ... A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted by the jury.

Continue reading "Sacramento Doctors Fall Below Standard Of Care During Child's Birth, Part 5 of 8" »

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 personal injury cases present such issues to the court.

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.

Continue reading "Family Seeks Damages Award After Sacramento Hospital Malpractice, Part 4 of 8" »

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 personal injury cases present such issues to the court.

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.

Continue reading "Sacramento Boy Born With Enlarged Cerebral Hemisphere Due To Malpractice, Part 3 of 8" »

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 personal injury cases present such issues to the court.

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.

Continue reading "Sacramento Family Files Malpractice Suit After Doctors Fail To Prevent Birth Injuries, Part 2 of 8" »

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 personal injury cases present such issues to the court.

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.

Continue reading "Sacramento Physicians Negligently Fail To Diagnose Multiple Congenital Conditions Before Birth, Part 1 of 8" »

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.)

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:

Continue reading "Sacramento OB/GYNs Sued For Causing Birth Injuries, Part 2 of 2" »

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.)

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.)

Continue reading "Sacramento Family Files Suit For Injuries Sustained During Son's Birth, Part 1 of 2" »

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 personal injury cases 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 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.

Continue reading "Sacramento Parents Seek Trial Preference In Son's Birth Injury Case, 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 personal injury cases 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 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.

Continue reading "Parents Of Birth-Injured Sacramento Child File Medical Malpractice Suit, 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 personal injury cases 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 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.

Continue reading "Sacramento Boy Suffers Birth Injuries Due To Malpractice, 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 personal injury cases 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 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.

Continue reading "Sacramento Parents Of Birth-Injured Child File Suit, Part 1 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 personal injury cases 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 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.

Continue reading "Sacramento Child's Parents Suffer Severe Emotional Distress Due To Negligent Birth Injuries, 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 personal injury cases 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 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.

Continue reading "Sacramento Child Suffers Birth Injuries Due Medical Neglect, 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 personal injury cases 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 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.

Continue reading "Mother And Father Witness Child's Birth Injury At Sacramento Hospital, 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 personal injury cases 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 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.

Continue reading "Sacramento Family Sues Hospital For Birth Injuries, 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 medical malpractice/birth injury case and its proceedings.)

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

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

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

Continue reading "Family Seeks Recovery From Sacramento Doctors For Birth Injuries, Part 10 of 10" »

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

THE JURY IS REQUIRED TO APPORTION FAULT AMONG THE UNIVERSE OF TORTFEASORS

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

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

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

Continue reading "Sacramento Family Seeks Damages For Medical Malpractice, Part 9 of 10" »

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

UNIVERSAL HOSPITAL IS NOT LIABLE FOR THE CONDUCT OF SUBSEQUENT TORTFEASORS AND, THEREFORE, PLAINTIFFS' DOUBLY-IMPUTED LIABILITY THEORY LACKS MERIT

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

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

In that regard, CACI Instruction No. 3929 provides:

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

Continue reading "Malpractice At Sacramento Hospital Leads To Wrongful Life Action, Part 8 of 10" »

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

PRINCIPLES REGARDING OSTENSIBLE AGENCY

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

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

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

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

Continue reading "Sacramento Hospital Proportionally Responsible For Birth Injuries, Part 7 of 10" »

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

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

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

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

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

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

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

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

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

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

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

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

THE NATURE OF WRONGFUL LIFE/ WRONGFUL BIRTH ACTIONS

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

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

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

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

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

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

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

SUMMARY OF PLAINTIFFS' INCORRECT THEORIES OF LIABILITY

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

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

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

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

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

SUMMARY OF FACTS

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

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

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

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

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

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

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

MEMORANDUM OF POINTS AND AUTHORITIES

SUMMARY OF ALLEGATIONS

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

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

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

(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.

Continue reading "Sacramento Family Sues For Birth Injury, Part 1 of 12" »