Sacramento Medical Malpractice Lawyer Blog

Any injury a child suffers at the time of delivery comes under the category of birth injuries. But it is important to note that birth injuries are different from birth defects. The reason is that birth defects, for the most part, are caused by either a genetic condition or toxic exposure in the womb. Moreover, a birth injury is mainly caused by complications arising during delivery.

According to estimates, around 7% of babies born in America have some sort of injury at the time of delivery.

Whenever a child is born, he or she is likely to have natural contractions and contortions related to childbirth. For a little baby, the process of delivery itself is way complicated as well as challenging. So, special care is needed on part of doctors to prevent such injuries.
Factors that may increase the chances of injury during birth include premature birth, unusually big baby or irregularities in the pelvic of the mother.

Unfortunately, birth traumas can also occur due to some kind of medical negligence or malpractice during labor or delivery. Let us take an example to elaborate it further. Delivery aids like forceps and vacuum extraction come under the banner of medical malpractice. The improper use of this equipment can cause injury to the baby or the mother.

Birth injuries can also occur if the pregnant mother has consumed prescription medicines or is exposed to deadly chemicals in the workplace during delivery.

A new prescription medicine is known as SSRIs. This is a new drug made in order to treat depression and anxiety disorders. SSRIs have been used in order to target bulimia nervosa, obesity, personality disorder, compulsive disorder, alcoholism and stress disorder. The overuse of this medicine can also inflict an injury to the baby.

According to a study, results printed in an England journal discovered that whenever a woman consumes anti-depressant drugs like SSRIs, the chances of her having an injury are 6 times higher. One of the most common type of injury is PPHN, which is short for Persistent Pulmonary Hypertension of the Newborn. This is a debilitating condition and makes it hard for a newly born baby to breathe.

For all parents, the birth of a baby is the best time of their life, but this may become a nightmare due to medical malpractice. If a doctor or physician does not use medical equipment during delivery properly, or if he or she does not be careful during delivery, the baby may suffer an injury. This comes under medical negligence. Now, if you or your loved is facing a similar case, it is important to get the services of a birth injury attorney in California.

A lawyer has been trained to handle these types of issues. However, you should also be familiar with the basic steps you may need to take in such a situation. Given below are a few tips for you to consider when filing a case in case of a birth injury in Sacramento California.

First of all, you should inform the responsible authority that you are going to file a case. In order to do this the right way, you should get a lawyer in California. The defendant will most likely appoint a lawyer in order to defend the case. Now, both of the lawyers will negotiate without taking the matter to the court. If the negotiation end up successfully, then there will be no need to turn to the court. The defendant will pay you compensation for the injury. However, if the defendant does not agree to settle out of court, then you need to take further steps.

Your lawyer will collect important evidence. Normally, the investigation team of the lawyer carries out this task. Your lawyer will have to provide financial and medical records to the defendant’s lawyer. In some cases, IME or MRI examination is done on the infant. The purpose of these tests is to prove that the baby really sustained the injuries.

Here it is important to note that the cross-examination is also important apart from circumstantial evidence. This involves nurses, doctors, technicians, chemists and other who were present at the time of delivery.

Once your lawyer has collected important evidence, your lawyer will try to reach a settlement. This involves the evaluation of the worth of the injuries in monetary value. This will include economic as well as non-economic loss. Your attorney will discuss the case with the provider of insurance. In most cases, settlement is made out of court.

If your lawyer fails to reach a fair settlement through negotiation, the you will have to go for a trial. This means the case will be taken to the court and evidence will be presented before the judge. Once the lawyer has disclosed everything before the judge, the jury will announce its verdict. If you win, the court will award compensation to you. This means the defendant will have to pay compensation to the plaintiff.

The crux of the matter is that you must choose an experienced birth injury lawyer who is capable enough to handle your case expertly. Hope you will find this article helpful in such cases.

The fact is that the United States of America has the most advanced technologies when it comes to medicine. Now, you can find latest medical equipment in American hospitals and health centers. People from different parts of the world come to the States to have treatment, despite the fact that it may cost them hundreds of thousands of dollars. They get medical treatment from America because of the availability of advanced medical equipment and highly qualified doctors and other medical staff.

In spite of most qualified doctors and advanced machinery, America is unable to give proper health care to newborn babies, according to statistics. Further, it was discovered that six out of every 1000 infants suffer from traumatic injuries during delivery. It is not as easy as you may think to detect the effects of an injury because behavioral issues and speech patterns start to appear as the infant grows up.

Birth injuries, for the most part, occur on account of the increased pressure placed on the infant while it is coming out of the birth canal. At times, problems such as legs-first delivery, prolonged labor, premature birth and use of forceps may increase the chances of birth injury. The fact is that some situations can lead to birth trauma are beyond the control of a doctor. This means birth injuries can occur due to natural causes as well. However, this is not always the case. When a doctor does not be careful during the process of delivery, the baby is more likely suffer from an injury.

You must get in touch with a birth injury lawyer if the doctor failed to accommodate intense discomfort or pain, or doctor overused hormones in order to boost the delivery process. At times, a doctor can make unnecessary delays in responding to fetal distress and internal bleeding. In another case, delays in conducting diagnoses and failure to treat infections after delivery can also cause injury to the infant. If any of these issues occur, you may have a case.

It is easy to know whether your baby has received injuries. Common symptoms include swelling, bruising or scars on the head or face of the baby. These things occur due to the careless use of vacuum extractors or forceps during the process of delivery. If the baby is unable to move properly or cries or laughs with only a side of his or her face, this means he or she is paralyzed. Aside from this, other injuries like cerebral palsy or broken bones are difficult to detect until the baby begins walking or crawling.

If yours, your friend, or brother’s baby shows any of the above-mentioned symptoms, you should have the baby examined by a qualified and experienced doctor. In addition, if you are sure that your baby has received a serious injury at the time of delivery, you should discuss your case with an experienced lawyer in order to file a case against the responsible doctors.

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.)

As expressed by the Court in Kelly v. New West Federal Savings, (1996) 49 Cal.App.4th 659, 672, the court held that [i]t is a misuse of a motion in limine to attempt to compel witness or party to conform their trial testimony to preconceived factual scenarios based on testimony given during pretrial discovery. (Id., at 672-673.) The Court of Appeal in Kelly specifically criticized this type of motion as improper and meaningless motion unless and until plaintiffs attempted to call such witnesses. (Id., at 670-671.)

Additionally, the Kelly Court observed in some cases, a motion in limine may not satisfy the requirements of a motion to exclude under Evidence Code §353. For example, it may be difficult to specify exactly what evidence is the subject of the motion until that evidence is offered. Actual testimony sometimes defies pretrial predictions of what a witness will say on the stand. Events in the trial may change the context in which the evidence is offered to an extent that a renewed objection is necessary to satisfy the language and purpose of §353. Until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility. In these kinds of circumstances, an objection at the time the evidence is offered serves to focus the issue and to protect the record. (Id. 660-661.)

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

Continue reading "Doctor's Malpractice At Sacramento Hospital Results In 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 medical malpractice action and its proceedings.)

Indeed, in Mayer v. Cooper, (1965) 233 Cal.App.2d 750, 754, a case cited with approval in Kennemur, the Court stated as follows, concerning the scope of deposition testimony:
The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for.

The Court in Kennemur continued, "the principles articulated in Mayer are sound. The only difference when in the expert arena is that the expert must reveal the general substance of his testimony (as opposed to every possible specific opinion)." [Kennemur, Id., at 919].

Defendants' Instant Motion in Limine is Improper, and Seeks to have the Court Rule in a Factual Vacuum

California law is clear that unsupported Motions in Limine are improper [Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 672].

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

Continue reading "Medical Experts Battle In Sacramento Malpractice Lawsuit, 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 medical malpractice action and its proceedings.)

In Kennemur, the plaintiffs expert was deposed on three separate occasions over a six-day period by the defendant. The witness was specifically asked whether he was going to testify on accident reconstruction. The witness specifically stated that he was not and would leave that to a different expert. The witness said that he was limiting his testimony to the stability of the automobile involved in the accident. [Id. at 912]. At the second session of this witness' deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.

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

The issue before the Kennemur court was not whether this witness (Mitchell) could testify to areas into which opposing counsel had failed to delve, but rather, whether he could testify on accident reconstruction issues about which he was specifically asked and had stated he had no opinion.

The Court stated:
"The decisive fact in the present case is the appellant's failure to disclose Mitchell's expected testimony ... either at Mitchell's deposition or as required by Section 2037.3. This failure deprived respondent to prepare for Mitchell's cross-examination."

Continue reading "Family Of Sacramento Child File Malpractice Action For 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 medical malpractice action and its proceedings.)

Plaintiff Mark Smith, a minor, by and through his Guardian ad Litem, Alana Smith, hereby opposes Defendant Katherine Steinberg, M.D., et al.'s, Motion in Limine No. 6, to limit the testimony of Plaintiff's expert witnesses to those opinions and conclusions testified to at their depositions and to exclude testimony based on materials not provided to or reviewed by them prior to their depositions, as follows:

Kennemur is Not Controlling

By this motion, Defendants are asking this Court to preclude Plaintiff's experts from saying anything that they have not already said in their depositions. This is clearly contrary to the law, and would create a possible loophole in the expert discovery statute.
In the extreme, a Defendant would simply have to ask very few questions in deposition, and thereby effectively prevent the expert from testifying about anything other than what he or she was asked.

This is particularly true in instances where a Defendant insists on asking overly broad, catch-all questions such as, do you have any other opinions not yet expressed, rather than simply deposing the expert about the specific areas about which an expert could reasonably have an opinion in this case.

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

Continue reading "Sacramento Infant's Birth Injury Leads To Malpractice 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/medical malpractice 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.

PAUL GREEN MAY NOT MAINTAIN A CAUSE OF ACTION FOR LOSS OF CONSORTIUM BASED ON ABBEY'S INJURIES

This motion does not challenge that determination, and there seems to be little question that Mr. Green would be permitted to maintain a cause of action for loss of consortium pertaining to his wife's physical injuries.

However, Mr. Green's loss of consortium claim reaches well beyond that, to claims for emotional distress suffered as a consequence of having to take care of Abbey. Ms. Green stated in her deposition that any negative impacts to the quality of her marriage are attributable entirely to Abbey 's problems as opposed her own physical injuries. Thus, it is undisputed that there are no recoverable loss of consortium damages based on Ms. Green physical injuries. This is, of course, consistent with common sense, and entirely what one would expect where the mother recovered completely within a few weeks and the child has severe and permanent injuries to her brain.

The issue before the court with respect to the fifth cause of action is whether Paul Green, under his claim for loss of consortium, is entitled to recover any damages other than those relating to his wife's physical injuries; and the answer is no. Clearly, Mr. Green has suffered profoundly as a result of his daughter's injuries, not only in the loss of Abbey 's love and affection, but also the impact of Abbey 's injuries on the quality of their marriage. However, this latter source of suffering is not compensable, because it does not flow directly from a compensable injury suffered by his wife, and the former is not compensable because in California there is no cause of action for loss of filial consortium.

Continue reading "Sacramento Healthcare Facility And Physicians Sued For Malpractice, Part 10 of 10" »

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/medical malpractice 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.

The Court raised a question regarding circumstantial evidence that something had been done wrong, namely the birth of a blue baby, which was precisely the issue confronted by the Hurlbut and Justus courts. However, the law is clear that circumstantial evidence is not enough: evidence of severe injury from an overdose of radiation (Golstein), a baby born dead (Justus), a child who deteriorates in the hospital (Jansen), a brain injury during labor and delivery (Hurlbut), a child covered with blood with a doctor leaning over him (Breazeal), or a severed artery during surgery (Bird), all amount to circumstantial evidence of negligence, and circumstantial evidence of a connection between the observed negligence and the injury.

However, as the courts correctly found in each one of these cases, such evidence is still not enough. Under Ochoa, and every factually apposite case to come down since then, there must be an observed connection between the accident and the resulting injury, a witnessing, with knowing comprehension. Thus, observing a baby born blue, or worse, even after observing concerning events during labor, is not enough, and the unbroken line of cases before us, including Ochoa, so hold.

Continue reading "Girl From Sacramento Suffers Birth Injuries, Part 9 of 10" »

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/medical malpractice 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.

The Hearing on the Demurrers

At the hearing on the demurrers by co-defendants, the court engaged the parties in a discussion regarding the issues now raised in this motion. At the hearing, the court stated:
Now, I don't know if anyone was negligent here or not, I'm not deciding the underlying factual case here. All I'm saying is are you saying a woman who has seizures, having problems with a birth, comes to the hospital, nurses want to get her treated, saying Let's get her treated, then she goes in to have the delivery and because there is a certain time - it's not a lot of time, I figure 30 minutes or something like that, the baby is, then, born blue with other problems that turn and result from a lack of oxygen and now is severely brain damaged, don't you think that scenario is sufficient for a person to come to a reasonable conclusion that somebody did something wrong?

Right. Lack of the timely delivery produces a blue baby because most of the time, babies are not born blue and they are sufficiently oxygenated not to have brain damage. The fact that the baby is born blue, isn't that circumstantial evidence that a person knows something is done wrong?

Continue reading "Medical Malpractice And Birth Injury Suit Filed By Sacramento Parents, Part 8 of 10" »

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/medical malpractice 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.

Hurlbut v. Sonora Community Hospital

This is not the first time this issue has come up in the context of a birth injury case. For example, in Hurlbut v. Sonora Community Hospital, supra, 207 Cal.App.3d. 388, the undisputed facts established that the father was present during labor, during which time he became concerned about changes on the fetal monitor and possible harm to the baby. Even though the father was concerned about his child, and suffered emotional distress as a result, the court denied NIED recovery because he did not observe the consequent harm. As in our case, the combination of observing evidence of complications during labor and actual harm to a baby, discovered at the time of delivery, was found to be insufficient. The Hurlbut court stated:
The most that can be said is that certain experiences allow the parents to "deduce that some problem or injury had or would damage their child." There was no direct perception of injury. There is no evidence of any contemporaneous awareness that defendant's conduct was the cause of the perspective harm. It was not until after the fact that observations of the infant confirmed some injury.

Continue reading "Child's Birth Injuries Caused By Sacramento Doctors, Part 7 of 10" »

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/medical malpractice/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.

Ochoa v. Superior Court Discusion

Ochoa v. Superior Court, supra, 39 Cal.3d 159, the case relied on most heavily by plaintiffs at the pleading stage, involved a 13-year-old boy who died in the infirmary of a juvenile hall after repeated requests by his mother to provide care were refused. Recovery by the mother for negligent infliction of emotional distress was allowed, but only because she specifically observed the withholding of care and observed its effect on her son. The rule announced in Ochoa was where there is observation of the defendant's conduct and the child's injury and contemporaneous awareness the defendant's conduct or lack thereof is causing harm to the child, recovery is permitted. (39 Cal.3d at page 170.) In other words, for a parent to recover for NIED under Ochoa, they have to witness, with knowing comprehension, the causal connection between accident and injury. (See, Golstein v. Superior Court, supra, 223 Cal.App.3d at 1424-1425.)

There was a great deal of discussion regarding whether a plaintiff has to possess a certain level of medical sophistication in order to satisfy the contemporaneous awareness requirement of Ochoa. Although there is some reference to this in the case law, in our case that discussion really misses the point: It doesn't matter whether Paul Green was a doctor or not, just as it didn't matter whether Ms. Ochoa was a doctor or not; what matters is whether he made the connection between what he observed and injury to his daughter at the time. The undisputed evidence establishes that he did not, and so he cannot recover.

Continue reading "Father From Sacramento Seeks Damages For Child's Birth Injuries, Part 6 of 10" »

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/medical malpractice 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.

PLAINTIFF PAUL GREEN MAY NOT MAINTAIN A CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

As the Court is aware from the discussion of these issues at the demurrer stage, the law governing recovery for negligent infliction of emotional distress in medical malpractice cases is rich and complex, with sometimes fairly arbitrary distinctions drawn by the courts in allowing recovery to one group of plaintiffs and denying recovery to another. However, the law which has emerged is also quite clear that in order for a parent to recover for NIED in the context of medical care provided to a child, the parent must have witnessed the injury-producing event and have been aware at that time that the event was causing injury to the child. (Ochoa v. Superior Court (1985) 39 Cal.3d 159.) This is beyond dispute and the unquestioned law of the land.

After more than 30 years of refinement and explanation, we now have before us a long unbroken line of medical malpractice cases, starting with Jansen v. Childrens Hospital Medical Center, (1973) 31 Cal.App.3d 22, and culminating in Bird v. Saenz, (2002) 28 Cal.4th 910, where the courts have denied recovery to a family member who witnessed the effect of the injury-producing event, rather than the event itself. This theme has been repeated in these cases time and time again.

Continue reading "Sacramento Child's Parents File Action For Medical Malpractice, Part 5 of 10" »

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/medical malpractice 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.

However, central to the ruling in Burgess is the admonition that the direct victim theory of NIED does not create a new cause of action, but instead simply recognizes that an obstetrician owes a duty of care to a pregnant mother in addition to the injured baby, even if the mother suffers no harm herself. The Supreme Court stated:

We have repeatedly recognized that the negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply.

In contrast [to the bystander theory of NIED], the label direct victim arose to distinguish cases in which damages for serious emotional distress are stated as a result of a breach of duty owed the plaintiff, that is assumed by the defendant or imposed on the defendant is a matter of law, or that arises out of a relationship between the two. In these cases, the limits set forth in Thing, supra, have no direct application. Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duties, are present in a given case.

Continue reading "Physicians From Sacramento Responsible For Child's Birth Injuries, Part 4 of 10" »

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/medical malpractice case and its proceedings.)

PLAINTIFF MELISSA GREEN MAY NOT MAINTAIN A SEPARATE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Plaintiff Melissa Green qualifies for recovery of damages for her emotional distress under the direct victim theory, at least as to any defendants with whom she had a physician-patient relationship during labor. (See, Burgess v. Superior Court (1992) 2 Cal.4th 1064.) As the Burgess court explained, the realities of pregnancy and child birth, both physical and emotional, are such that any negligence during delivery which causes injury to the fetus and resulting in emotional anguish to mother breaches a duty directly the mother. (2 Cal.4th at 1069.) However, the physician/patient relationship that may have existed between moving defendant and Ms. Green prior to the birth of Abbey Green does not give rise to a separate cause of action, but rather is part of the negligence cause of action pleaded elsewhere in her complaint. This is done in order to give rise to two separate $250,000 MICRA caps on general damages, both in favor of Ms. Green.

Continue reading "Sacramento Hospital Sued For Birth Injuries, Part 3 of 10" »

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/medical malpractice case and its proceedings.)

SUMMARY OF ARGUMENT

The third, fourth and fifth causes of action of plaintiffs' complaint are not appropriate in a birth injury case such as this one. The third cause of action, for negligent infliction of emotional distress by the mother, Melissa Green, is not proper because it is subsumed by her cause of action for negligence. The fourth cause of action by the father, plaintiff Paul Green, for negligent infliction of emotional distress, is improper because Mr. Green does not meet the requirements for recovery under either the direct victim theory or the bystander theory of NIED. Specifically, because Mr. Green admits that he did not become aware of any injuries suffered by the baby, indeed was not even concerned about injuries suffered by the baby, until he saw her come out, he cannot satisfy the contemporaneous awareness requirement for recovery for NIED. Finally, Mr. Green' cause of action for loss of consortium fails because the only harm caused to their marriage as a result of the events in question is related to the child's injuries, rather than injuries to his spouse, and damages for loss of filial consortium are not permitted in California.

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 ADJUDICATION MUST BE GRANTED WHERE THE MOVING PAPERS ESTABLISH THAT THERE EXISTS NO TRIABLE ISSUE OF MATERIAL FACT AND THAT THE MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW

California Code of Civil Procedure Section 437c provides that a motion for summary adjudication shall be granted if all the papers submitted show that there exists no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Continue reading "Mother From Sacramento Sues For Medical Malpractice, Part 2 of 10" »

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/medical malpractice case and its proceedings.)

Motion for Summary Adjudication of Causes of Action and Damages Claims; Memorandum of Points and Authorities

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This is a medical malpractice case arising out of the birth of plaintiff Abbey Green on October 6, 2004. The essential facts are not in dispute: In the early morning hours of October 6, 2004, Abbey's mother, plaintiff Melissa Green, who was 39 weeks pregnant at the time, woke up and reported that her water had broken, and then began to exhibit seizure-like behavior. She was transported by paramedics to Regional Medical Center, which at the time was owned by the moving defendant Hospital Systems, Inc., arriving at the hospital at approximately 2:50 a.m. Ms. Green was taken to the emergency room and then labor and delivery, where Abbey was delivered at 3:37 a.m., 47 minutes after her mother arrived at the hospital. Husband and father, Paul Green, was at his wife's side throughout. Following delivery, Ms. Green experienced complications and had to be hospitalized for another five days, although she has since recovered completely.

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.

Continue reading "Sacramento Parents File Suit For Birth Injuries, Part 1 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

DAMAGES
As to Alexandra, the damage to his body speaks for itself. Plaintiffs presented substantial and credible evidence on this issue with the testimony of Dr. Peter W., Dr. Nathaniel T., Dr. Paul U., and Dr. Marilyn S.. All testified to the nature and extent of the severe and permanent injuries suffered by Alexandra, and Dr. W. testified to those things that Alexandra will need in the future by way of the life care plan.

Plaintiffs additionally presented substantial and credible evidence with Dr. David R. and Mr. Anastos concerning the nature and extent of Alexandra's disability as it related to his ability to work and the economic impact of that disability.

The jury obviously carefully considered the plaintiffs' expert witness testimony and the defense expert witness testimony and reached a compromise on the economic damages suffered by Alexandra. The award was reasonable and in line with the substantial and credible evidence produced by plaintiffs.

As to general damages, it was the jury's judgment that Mrs. Brown suffered $1,000,000.00 in general damages being witness to the injuries suffered by her child at birth and dealing with those injuries and their sequela.

Continue reading "Sacramento-area Family Files Medical Malpractice Action, Part 9 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

THE ISSUE OF VERDICT BASED ON INSUFFICIENT EVIDENCE
The Defendants' Memorandum of Points and Authorities in Support of Motion for New Trial contends that there was insufficient evidence to support the jury's verdict in favor of plaintiffs. Defendants' motion is based upon little more than argument of counsel and not the evidence considered by the jury in this matter. This alone is reason to deny defendants' motion. However, as this court is well aware, the evidence introduced at trial is more than sufficient to support the jury's verdict.

California Code of Civil Procedure, Section 657 states, in part:
A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences there from, that the court or jury clearly should have reached a different verdict or decision.

In deciding a motion for new trial based upon insufficiency of the evidence, the court's function is to determine whether...there is sufficient credible evidence to support the verdict. Zurian v. Wahl Shoe Company, Inc., (1994) 22 Cal. 4th 397, citing People v. Robarge, (1953) 41 Cal. 2d 628, 633.

In ruling on a motion for new trial based upon insufficiency of the evidence, the trial court should not disregard the verdict or decide what results should have been reached if the case had been tried without a jury. Dominguez v. Pantalone, (1989) 212 Cal.App.3d 201, 215.

Continue reading "Child Suffers Permanent Brain Damage At Sacramento-area Hospital, Part 8 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

THE ISSUE OF INFORMED CONSENT
The defendant says that there is virtually no testimony on the issue of informed consent except Dr. Linda X.’s testimony that she failed to obtain the patient's informed consent to use the vacuum. What more is needed?

Although the plaintiff was precluded from offering testimony that she would not have consented to the vacuum's use had the risks and benefits been properly explained, there appears to be abundant testimony from the defendant himself to submit this theory of liability to the jury for its consideration. The Court is well aware no expert witness testimony is required on the issue of informed consent. Ardto v. Avedon, (1993) 5 Cal. 4th 1172.

Furthermore, the Court will recall that plaintiffs presented three distinct theories of liability against Dr. Linda X. (1) Her negligence caused the medical emergency; (2) She was negligent in management of the medical emergency; and (3) She failed to obtain Mrs. Brown's informed consent to employ the vacuum device at mid-pelvis.

Because of the multiple theories of negligence offered by plaintiffs, this jury could have found Dr. Linda X. negligent on any or all of the issues. With multiple contentions of negligence, but no special interrogatory to the jury asking which specific act or acts they deemed negligent, defendant cannot now challenge the jury's findings. They may have found her not negligent on the informed consent issue. We will never know.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

The court had no adequate basis for a new trial order, conditional or otherwise. (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 906.) We do not construe the juror declarations taken as a whole to show an express or implied agreement by the jury to inflate the verdict to include attorney fees. After examining the record, we conclude a new trial was not required as a matter of law because of alleged jury misconduct or anything else.

Under like circumstances the court in Moore v. Preventive Medicine Medical Group, Inc., (1986) 178 Cal.App.3d 728 [223 Cal.Rptr. 859] affirmed the denial of a new trial for jury misconduct. In Moore, two juror declarations were introduced to show a discussion among the jurors regarding the plaintiff's probable contingency fee obligation to his attorney. Distinguishing Krouse v. Graham (1977) 19 Cal.3d 59 [137 Cal.Rptr. 863, 562 P.2d 1022], the court found the declarations insufficient to establish [a]n express agreement by the jurors to include such fees in their verdict, or extensive discussion evidencing an implied agreement to the effect. [Citations.].... The declarants do not suggest an express agreement was reached and the discussion they relate could hardly be characterized as extensive, (Moore, supra, 178 Cal.App.3d at pp. 740-741, fn. Omitted.) Thompson v. Friendly Hills Medical Center, (1999) 71 Cal.4th 544, 548.

The main thrust of moving parties' argument seems to be juror discussion about money. Discussions about the appropriate size of Mrs. Brown's award and how it might be spent is simply not juror misconduct. The moving party has not cited a single authority to suggest otherwise. There is no evidence in the declarations that any juror awarded Mrs. Brown compensation not supported by evidence.

As discussed in the authorities cited above, it is acknowledged that these types of discussions are part of the give and take of the jury's secret deliberation process.

Continue reading "Delivery Room Malpractice Results In Brain Injury, Part 6 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Our power over excessive damages exists only when the facts are such that the excess appears as a matter of law, or is such as to suggest at first blush, passion, prejudice, or corruption on the part of the jury, (citations omitted.) Practically, the trial court must bear the whole responsibility in every case. (Bond v. United Railroads (1911) 159 Cal. 270, 286 [113 P. 366].)

The trial judge had an opportunity to review the evidence in this case at the time of the hearing on the motion for new trial. We have also independently reviewed the evidence.
The mere fact that the judgment is large does not validate an appellant's claim that the verdict is the result of passion or prejudice of the jury. Each case must be determined on its own facts. It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive or grossly inadequate general damages. (Daggett v. Atchison. T. & S.F. Ry. Co., (1957) 48 Cal.2d 655, 666 [313 P.2d 557, 64 A.L.R.2d 1283].)

That result which requires reversal should clearly appear from the record. We are unable to say, as a matter of law, that the judgment in this case is so excessive as to warrant us in interfering with the finding of the jury. Di Rosario, Id. @ 1239.

Continue reading "Parents Sue Sacramento-area Hospital For Medical Malpractice, Part 5 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Defendant urges that we adopt what amounts to a rigid rule that prejudicial misconduct cannot be cured either by jury self-admonition or by admonitions from the trial court. Such a contention ignores the very purpose of permitting and requiring jury deliberations: through group discussion of the law and the evidence, our common law system trusts that jurors who express wrong ideas about the evidence, the law, and their duty as jurors will be guided to a correct view of the case. In the absence of an opportunity for jurors to express such wrong conceptions and thereafter change their thinking, a jury trial might just as well conclude with the submission of ballots from the jury box at the close of the case.
Romo v. Ford Motor Co., (2002) 99 Cal. App. 4th 1115, 1130.

Plaintiff asserts two additional instances of alleged jury misconduct. The first of these rests upon a discussion by jurors of the source of money to pay a potential judgment. Plaintiff suggests that discussion of where the money for the judgment was to come from was somehow tied to the jury's impression that defendant was a nice guy. Hence, plaintiff suggests the jury declined to find defendant liable because if was concerned about the financial impact a verdict would have upon him.

Looking to the affidavits we find the following references: Juror Smith states that one juror asked where the money would come from if the verdict was in favor of the plaintiff, whereupon several of the jurors discussed this subject; Juror Michela states that some of the jurors wondered where the money was going to come from if the jury found in favor of the plaintiff; Michela notes, in a separate paragraph that one male juror... said that David Brunicardi was a nice guy. Other jurors agreed with this statement. We find nothing in these affidavits which is sufficient to establish a bias in favor of defendant or to cause the jury to avoid imposing the financial burden on a judgment upon him. Young v. Brunicardi, (1986) 187 Cal. 3d 1344, 1352.

Continue reading "Doctor's Errors Leave Sacramento-area Parents Distraught, Part 4 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Faced with the twin facts that jurors are allowed great freedom in their conduct of deliberations and that a court can never know exactly what influences resulted in a particular verdict, our judicial system has established certain presumptions for reviewing allegations of juror misconduct. Jurors ordinarily are presumed to have followed the court's instructions. (People v. Sanchez, (2001) 26 Cal. 4th 834, 852, (111 Cal. Rptr. 2d 129, 29 P. 3d 209]; Craddock v. Kmart Corp., (2001) 89 Cal. App. 4th 1300, 1308, [107 Cal. Rptr. 2d 881].) The California Supreme Court has consistently stated that on appeal, [w]e must of course, presume that the jury followed [the trial court's] instructions... People v. Chavez, (1958) 50 Cal. 2d 778, 790, [329 P.2d 907].)... In the absence of evidence to the contrary, the presumption [that the jury adhered to the limiting instructions] will control. (People v. Beach, (1983) 147 Cal. App. 3d 612, 625, (195 Cal. Rptr. 3811.) (People v. Zack, (1986) 184 Cal. App. 3d 409, 416, [229 Cal. Rptr. 317].)

On the other hand, [j]uror misconduct such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. (People v. Nesler, supra, 16 Cal. 4th at p. 578.) To succeed [on a claim of jury misconduct, a party] must show misconduct on the part of a juror; if he does, prejudice is presumed; [the opposing party] must then rebut the presumption or lose the verdict. (People v. Marshall, supra, 50 Cal. 3d at p. 949.)

The presumption of prejudice in a civil case is rebutted if the reviewing court reaches one of three conclusions: (1) the record establishes the absence of prejudice; (2) a review of the entire record shows there is no reasonable probability of actual harm to the complaining party under the constitutional standard of People v. Watson, (1956) 46 Cal. 2d 818, 836, [299 P.2d 243]. (See Hasson v. Ford Motor Co., (1982) 32 Cal. 3d 388, 416-417, [185 Cal. Rptr. 654, 650 P. 2d 1171]: McDonald v. Southern Pacific Transportation Co., (1999) 71 Cal. App. 4th 256, 265, [83 Cal. Rptr. 2d 7341); or (3), in the case of possible actual bias of a juror whose vote may have been determinative of the verdict there is no substantial likelihood that at least one juror was impermissibly influenced.

Continue reading "Negligence During Delivery Results In Traumatic Birth Injury, Part 3 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Interestingly, there is little decisional law on the question of what is proper discussion among jurors during deliberations, and the few cases are quite ancient. In Baker v. Borello, (1902) 136 Cal. 160, the California Supreme Court approved an instruction which told the jurors to deliberate in light of their general knowledge on the subject. Jurors, in weighing evidence, always exercise their judgment in the light of their own general knowledge of the subject in hand, whether instructed to do so or not; and a judgment will not be reversed whether they are or are not so instructed. Wagner v. Doulton, (1980) 112 Cal. App. 3d 945, 949 [169 Cal. Rptr. 550].

The court in Wagner concluded: We believe the appropriate rule has been well articulated by an opinion of a sister state: In determining what is proper and what is improper discussion among jurors, regard must be had for the fact that the jury are supposedly men (and women] of different walks of life, avocations, and necessarily views that would be affected by their past experiences and situations. They could hardly arrive at a solution of their differences without discussion of the facts before them, and each man's discussion would necessarily be tinged or affected by his own viewpoint and experience. Frazer v. State, (1924) 99 Tex. Grim. 89, (112 Cal. App. 3d at p. 950.); English v. Linn, (1994) 26 Cal. 4th 1358, 1364

Jury deliberations are secret while they are occurring. No verbatim transcript or other record of the deliberations normally exists. Declarations seeking to reconstruct deliberations after the fact may be colored by the jurors' natural inclination to protect or attack the process that resulted in the verdict depending on whether the juror agreed or disagreed with the verdict. (See Weathers v. Kaiser Foundation Hospitals, (1971) 5 Cal. 3d 98, 108-109, [95 Cal. Rptr. 516 485, P.2d 1132].) Yet, the parties' right to a jury trial is one of constitutional dimension, and we give great deference to a verdict issued by a properly instructed jury - in the normal case, without any inquiry whatsoever into the processes used to reach that verdict. Even when there are allegations of jury misconduct evidence of the jurors' mental processes is, with narrow exceptions, excluded from consideration of the right to a new trial. (In re Hamilton, supra, 20 Cal. 4th at pp. 294-295.)

Continue reading "Physician's Malpractice Results in Child's Brain Damage, Part 2 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Alexandra BROWN., a minor by and through her guardian ad litem, Winona Brown; Winona Brown; Sean Brown., Plaintiffs, v. Linda X., M.D., Linda X., M.D., Inc., General Medical Center, a Corporation, and Does 1 through 250, inclusive, Defendants.

March 2005.

Plaintiffs' Opposition to Defendants' Motion for New Trial (Medical Malpractice/Birth Injury)

TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES
I. THE IRREGULARITY IN THE PROCEEDINGS - JURY AFFIDAVITS
II. THE ISSUE OF INFORMED CONSENT
III. THE ISSUE OF VERDICT BASED ON INSUFFICIENT EVIDENCE
IV. DAMAGES
V. CONCLUSION

MEMORANDUM OF POINTS AND AUTHORITIES

On December 8, 2004 the jury rendered a verdict in plaintiffs' favor. As set forth below the verdict is supported by substantial evidence and law. On or about January 3, 2005 the Court entered judgment on the verdict.

Plaintiffs will address each issue raised by the defendants in the order in which they were advanced in the Motion for New Trial.

THE IRREGULARITY IN THE PROCEEDINGS - JURY AFFIDAVITS
The four juror declarations submitted by the defendant are replete with discussions about the juror mental processes. The Evidence Code states in unequivocal terms that such evidence is inadmissible.

(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct; condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

Continue reading "Birth Injury At Sacramento-area Hospital, Part 1 of 9" »