Sacramento Medical Malpractice Lawyer Blog

(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 also 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, U.C. Davis Medical Center, Mercy, or Sutter.

Another way of putting the defense's self consumption reduction would be to state the defense was asking a jury to speculate about an injured plaintiff's prospective personal living expenses during the lost years period. (Id.) This the Court of Appeals refused to do. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

And the Court of Appeal had a second reason to reject the "self consumption" reduction: Second, and equally troubling, [Defendant] does not identify any case which applies a personal consumption or living expense deduction in this context. (Id. at p. 176.) In other words, the defense has no case authority. The defense argued such a deduction is made in wrongful death cases. But again, the Court of Appeal rejected the argument. The Court acknowledged that in wrongful death actions, an acceptable way to show how much money would have been available for the support of a decedent's wife and children is to show how much money would have been earned during the remainder of his life, and to deduct from that amount his personal maintenance expense and the amount he would have spent on other things. (Id. at p. 176.)

However - - By contrast, in a personal injury action where lost years damages are recoverable, the measure of damages is not lost support but rather lost earnings during the period the plaintiff would have lived if not for the injury. (Fein. supra, 38 Cal.3d at p. 153. Speculating as to how the injured party may have spend those future earnings if not for defendant's tortuous conduct is a very different exercise than permitting a wrongful death plaintiff to prove damages for lost support by accounting for his or her supporter's other expenses. (Overly, supra, 74 Cal.App.4th at p. 176.)

Continue reading " Permanent Injuries Suffered During Child's Birth Lead To Sacramento Malpractice Suit, Part 7 of 8 " »

(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 also 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, U.C. Davis Medical Center, Mercy, or Sutter.

THE SUPREME COURT REFUSED TO APPLY PERIODIC PAYMENTS BASED ON THE CONCEPT OF "LOST YEARS"

The Fein Court found that the periodic payments of Code of Civil Procedure section 667.7 applied to medical negligence actions and found the application of periodic payments to be mandatory. However, the Supreme Court refused to apply periodic payments to lost years. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Although in general lost earnings are a type of future damage particularly suitable to a periodic payment judgment, this case presents a somewhat unusual situation because the damages awarded are solely attributable to the earnings of plaintiff's lost years. If the trial court had ordered such damages paid periodically over the time period when the loss was expected to be incurred, the damages would have been paid in their entirety after plaintiff's expected death, and thus-if the life expectancy predictions were accurate-plaintiff would not have received any of this element of damages. (Fein v. Permanente Medical Group, supra, 38 Cal.3d at 156.)

Therefore, it is clear from the language of Fein that the purpose of "lost years" damages is make sure that the plaintiff receives all of their lost future earnings in a lump sum during their lifetime. (Accord Schiembeck v. Haight (1992) 869 Cal.App.4th 869, 778.)

Continue reading " Birth-Injured Sacramento Child Sues For Permanent Injuries Caused By Malpractice, Part 4 of 8 " »

(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 also 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, U.C. Davis Medical Center, Mercy, or Sutter.

THE MINOR PLAINTIFF IS ENTITLED TO A "LOST YEARS" JURY INSTRUCTION

The California Supreme Court specifically allows for a lost years instruction:

Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury. ... Although, to our knowledge, the lost years issue has not been previously decided in California, recovery of such damages is consistent with the general rule permitting an award based on the loss of future earnings a plaintiff is likely to suffer because of inability to work for as long a period of time in the future as he could have done had not sustained the accident. (Emphasis in original and added.) (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153.)

Consequently, the minor plaintiff will be asking the court to issue an instruction on lost years damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

And in August 1999, the First District discussed the latest defense attack on the lost years damage award in Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 175. In Overly, Plaintiff sued for personal injury for exposure to asbestos - and Plaintiff claimed the loss of future economic benefits that [Plaintiff] would have earned during the period by which his life expectancy was shortened, i.e., 'lost years' damages, in the form of pension, social security and household services' benefits. (Id. at p. 171.)

Continue reading " Birth Injuries Caused By Sacramento Physicians' Malpractice, Part 3 of 8 " »

(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 also 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, U.C. Davis Medical Center, Mercy, or Sutter.

The later case of Hurlbut has affirmed that lost years are not subject to periodic payments. Later authority has affirmed that the lost years award is an exception to the rule of periodic payments under Civil Procedure section 667.7 (Hurlbut v. Sonora Community Hospital (1989) 207 Cal. App.3d 388.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

California has now rejected the defense argument of saved costs of necessities. The "lost years" should not be reduced by the "saved cost of necessities." Defense counsel may argue that the "lost years" award should be reduced by the amount saved because of a reduced life expectancy. The First District has now held the majority view is that no deduction is made for the injured part's expected living expenses during the lost years. (Overly, supra, 74 Cal.App.4th at p. 175.) No court has endorsed the approach that would deny lost years damages because it is the widespread practice to award the plaintiff full compensation for his lost years damages (Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages (1962) 50 Cal.L.Rev. 598). (See Part 3 of 8.)

Continue reading " Sacramento Boy Suffers Permanent Injuries Due To Doctors' Malpractice, Part 2 of 8 " »

(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 also 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, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFFS' TRIAL BRIEF ON "LOST YEARS" AND "SAVED COST OF NECESSITIES"

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

The medical malpractice case at issue involves severe and permanent neurological injuries suffered by minor Owen Smith, at or around the time of his birth on February 21, 2000.

There will be expert testimony that the minor will never be employed. Because the minor will not be able to work, she is entitled to damages described as lost years - i.e. the time by which a plaintiff's work life expectancy is shortened because of the injury. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The minor is entitled to a "lost years" jury instruction. The Supreme Court specifically addressed the issue of "lost years”; where a plaintiff's work life expectancy is shortened, this loss is compensable (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137). And in August 1999, the First District reaffirmed the "lost years" damage award: Fein expressly recognized a right to recover damages for the loss of prospective earnings during the period of time by which the plaintiff's life expectancy has been diminished. (Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 172.)

Continue reading " Sacramento Family Files Suit For Medical Malpractice, Part 1 of 8 " »