(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.
Finally, Universal has yet to produce one of the most important items of evidence in this – the fetal monitor strip recording the child’s and the mother’s condition during delivery. The unexplained loss of this vital record implies malfeasance by Universal and precludes the defendant from taking advantage of its purported loss. (See Part 2 of 12.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.