Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/personal injury case and its proceedings.)
The Defendant’s Multiple Breaches of the Standard of Care Caused or Contributed to George Jackson’s Brain Damage
The defendant’s delay in obtaining the necessary information to make a determination about the fetus’s status, and the consequent delay in having the baby delivered, was a substantial factor in causing or contributing to his birth injuries. By failing to attend to Ms. Jackson immediately upon receiving the 17:00 telephone call, defendant Lee delayed the delivery of George Jackson by more than 20 minutes. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.
Even if defendant Dr. Lee and Dr. Stein first tried a failed vacuum extraction at 17:01 or 17:02, they would have moved to perform a Cesarean-section by 17:05, with the baby delivered within about 10 minutes. (Defendant Lee in her deposition stated that a Cesarean-section could be performed at this hospital within 10 minutes.) This would mean that the baby would be delivered at about 17:15 to 17:20, thus avoiding an additional 22 minutes of fetal distress and avoiding the deprivation of oxygen to George’s brain. Indeed, the defense expert acknowledges that the bradycardia did not develop until 17:20, so that event would have been avoided entirely or would have been sustained for only a minute or two. The defense expert concedes that a minute or two of fetal bradycardia would have been harmless.
The Defendant’s Burden To Prove that She is Entitled to Judgment as a Matter of Law
The burden of persuasion on a defendant’s motion for summary judgment in California is clear: It is on the defendant.
Summary judgment law in this state … continues to require a defendant moving for summary judgment to present evidence, and not simply point out, that the plaintiff does not possess, and cannot reasonably obtain, needed evidence…. The defendant must “support the motion with evidence including affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice must or may be taken.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 854-855, 107 Cal.Rptr.2d 841, 865-866 (2001), citing C.C.P. § 437c(b).
First, and generally, from 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.
Second, and generally, the 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. 25 Cal.4th at 850, 107 Cal.Rptr.2d at 861-862.
This means that the defendant must present evidence to satisfy the standard of a directed verdict in his favor if the action were tried to a jury:
[I]f a defendant moves for summary judgment against such a plaintiff, he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not — otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact. 25 Cal.4th at 851, 107 Cal.Rptr.2d at 862. (See Part 7 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.