Sacramento Medical Malpractice Lawyer Blog

(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.

Continue reading "Birth Injury At Roseville Medical Facility Due To Malpractice, Part 7 of 9" »

(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" »