Articles Posted in Birth Injury

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.

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, U.C. Davis Medical Center, Mercy, 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 case and its proceedings.)

Following the Supreme Court’s holding in Baxter v. Superior Court (1977) 19 Cal.3d 461, the appellate court held such claims for loss of consortium by parents for an injury to a child are rejected. Id. 186 Cal.App.3d at 894. Thus, plaintiffs Karen and Thomas Smith cannot recover for any emotional distress regarding any concern for the child due to his alleged injuries or emotional distress for having to care for a child with the plaintiffs’ alleged injuries, or an inability to conduct their normal activities. Any claim for emotional distress due to an impaired relationship are clearly not recoverable because such claims would be based upon a loss of filial consortium and are thus irrelevant. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

CONCLUSION
Dr. Woo and Dr. Brown met the standard of care in performing the ultrasounds on this low risk patient in the same manner as OB/GYNs throughout the community do in an office-based obstetrical practice. There was no indication to perform a basic ultrasound to look for fetal anomalies in this case. Dr. Woo and Dr. Brown were not required by the standard of care to take measurements nor were they required to refer plaintiff Nancy Smith to a perinatologist (sub-specialist). Further, plaintiff Nicholas Smith’s hemimeganencephaly was not caused by the defendants, was not a result of the defendants’ care and treatment, and the condition was not capable of prenatal diagnosis.

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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.

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, U.C. Davis Medical Center, Mercy, 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 case and its proceedings.)

In Foy v. Green Blott (1983) 141 Cal.App.3d 1, a disabled and incompetent woman became pregnant and brought an action against her guardian and the physicians at the mental facility where she resided. The appellate court held in part that with respect to plaintiff’s cause of action alleging depravation of a normal parent-child relationship, plaintiff could not recover. Foy, Id. 141 Cal.App.3d at 7. As the court stated:

Losses of parental or filial consortium are not actionable. “[T]he inadequacy of monetary damages to make whole the loss suffered, considered in light of the social cost of paying such awards constitutes a strong reason for refusing to recognize the asserted claim ….” The distinction claimed by plaintiffs actually aggravates the problems of ascertaining damages as these actions would require comparison of plaintiffs’ impaired relationship with a hypothetical normal parent-child relationship rather than with any actual relationship existing before the tort. Foy, Id. 141 Cal.App.3d at 7. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, the court in Foy following Turpin held that general damages could not be awarded for the creation of an impaired parent-child relationship in place of no relationship at all. Foy, Id. 141 Cal.App.3d at 7.

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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.

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, U.C. Davis Medical Center, Mercy, 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 case and its proceedings.)

DAMAGES

With respect to damages, general damages for pain and suffering are not allowed in a wrongful life case. Turpin v. Sortini 31 Cal.3d 220 (1982); see also Gami v. Mullikin Medical Center, 18 Cal.App4th 870 (1993). In addition, damages for loss of earning capacity are not permitted in such an action for wrongful life and wrongful birth. In Andalon v. Superior Court 162 Cal.App3d 208 (1984); See also Simmons v. West Covina Medical Clinic, 212, Cal.App3d 696. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Turpin v. Sortini, 31 Cal.3d, plaintiffs, a minor child and her parents, brought a wrongful life action against the doctors, hospital and others who participated in the misdiagnosis of the hereditary defect in the child’s sister, thereby depriving allegedly the parents a choice of whether or not they should conceive the plaintiff minor child. There, the California Supreme Court held that the plaintiffs were limited to recovery of the child’s extraordinary medical expenses that were proximately caused by the defendants’ negligence.

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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.

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, U.C. Davis Medical Center, Mercy, 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 case and its proceedings.)

In medical malpractice, the standard of care is based only on expert testimony since the acts of a medical practitioner are to be measured as to those matters peculiarly within the knowledge of experts, which is beyond the common knowledge of laymen. In Huffman, supra, the case held that the law has never held a physician or surgeon liable for every untoward result which may occur in medical practice but it demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient.

Importantly, the standard of care is to be determined by a prospective analysis. The standard of care is determined by what the health care provider is presented with and what a reasonable physician would do in that circumstance, not what he or she could have done if the outcome was foreseen, before it occurred. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Additionally, liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. See Dumas v. Cooney, 235 Cal.App.3d 1593, 1603 (1991). In an action involving the alleged failure to diagnose lung cancer, the Court in Dumas stated:

[C]ausation must be proven with a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case … A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted by the jury.

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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.

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, U.C. Davis Medical Center, Mercy, 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 case and its proceedings.)

CAUSES OF ACTION AND AFFIRMATIVE DEFENSES THAT WILL BE TRIED

In this case, plaintiffs have asserted causes of action for medical negligence, wrongful life and wrongful birth.

The affirmative defenses that will be raised (as asserted in the answer to the first amended complaint) are the first affirmative defense (failure to state facts sufficient to constitute a cause of action against defendants), the sixth affirmative defense regarding the applicability of the MICRA provisions pursuant California Civil Code Sections 3333.1 and 3333.2, California Code of Civil Procedure Section 667.7; the eighth affirmative defense (California Civil Code Section 1714.8.)

STIPULATION

Counsel have stipulated that plaintiff Nicholas Smith cannot recover general damages or assert a claim for loss of earnings or earning capacity. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

EVIDENTIARY ISSUES
The evidentiary issues that will be raised at trial are whether or not the defendants complied with the standard of care and whether or not the defendants care and treatment was a proximate cause of the plaintiffs’ alleged injuries as well as issues pertaining to the plaintiffs’ alleged damages.

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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.

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, U.C. Davis Medical Center, Mercy, 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 case and its proceedings.)

The remainder of Ms. Smith’s pregnancy was completely uneventful. The balance of her prenatal course was normal with the patient matching fundal height with gestational age.

On December 13, 2008, Ms. Smith had an spontaneous rupture of membranes. There were no uterine contractions following the rupture of membranes. The plaintiff was advised of the risk of infection due to prolonged rupture of membranes. The plaintiff opted to go to the hospital approximately six hours after her membranes ruptured. Ms. Smith was started on Pitocin augmentation. With Pitocin augmentation, the fetal heart rate showed decreased variability. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The plaintiff was advised to have a cesarian section which she agreed to and the infant was delivered by Dr. Brown during the early morning of December 14, 2008. Following his birth, the minor plaintiff was diagnosed with hemimeganencephaly, which is an enlargement of one cerebral hemisphere. All experts are in agreement that this is a very rare congenital malformation.

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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 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.

Under the discovery rule, the statute of limitations began to run when plaintiffs suspected their injury was caused by wrongdoing. Plaintiffs, therefore, cannot take advantage of the provisions of Code of Civil Procedure §474 and relate back the Amendment of Complaint, adding Dr. Brown as a DOE defendant, back to the date of the filing of their original Complaint. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The medical records establish that plaintiffs had knowledge of Dr. Brown as well as his extensive participation in the delivery of their baby on February 21, 2001. Further, both Ms. Smith and Mr. Smith, Sr., testified that they were aware that Dr. Brown was the primary treating obstetrician who delivered their son on February 21, 2001. During her deposition, Ms. Smith testified as follows:

Q. Now, do you recall meeting a doctor by the name of Dr. Brown?
A. Yes.
Q. When is the first time you met him?
A. While I was in the delivery room.
Q. Now, when you first saw Dr. Brown, you understood that he was part of the XYZ group?
A. Yes.
Q. You understood that he was the doctor in charge at that point?

A. Yes; he told me he was.

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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 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 California Supreme Court declared that:

Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her…[T]he limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry … So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her. (emphasis added) Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1110, 245 Cal.Rptr. 658, 751 P.2d 923 (1988).

“It is the occurrence of some such cognizable event rather than knowledge of its legal significance that starts the running of statute of limitations.” Graham v. Hansen, (1982) 128 Cal.App.3d 965, 180 Cal.Rptr. 604. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFFS FAILED TO MEET THE REQUIREMENTS OF CODE OF CIVIL PROCEDURE §474 AND, THEREFORE, THIS ACTION IS BARRED BY CCP 340.5.

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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.

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, U.C. Davis Medical Center, Mercy, 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 case and its proceedings.)

STATEMENT OF FACTS

Plaintiff Nancy Smith was initially seen at Women’s Health Group by Stanley Woo, M.D., on July 21, 2008. Ms. Smith reported a last menstrual period of March 24, 2008, and an estimated delivery date of December 31, 2008. Ms. Smith received her initial prenatal care at California Medical Center by Eric Goldberg, M.D., in Sacramento in May 2008.

At the initial prenatal visit, Dr. Woo noted Ms. Smith to be 16.2 weeks pregnant. On this visit, Dr. Woo performed an ultrasound to document a single viable intrauterine fetus. This was not a fetal anatomic ultrasound and thus no measurements were taken. Further, the testimony by defendants’ experts will be that no measurements were required by the standard of care. Further, all experts agree that if measurements had been taken, they would have essentially shown a normal fetal anatomy. Additionally, all experts are in agreement that the defendants were not required by the standard of care to perform an ultrasound. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

At the initial office visit, blood was drawn for AFP screening. The test results were received on or about July 30, 2008, and were negative for open neural tube defects, Down’s Syndrome, and trisomy 18. There was also no history of neural tube defects in the family. The plaintiffs were informed of the results on or about August 5, 2008.

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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 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.

PURSUANT TO CODE OF CIVIL PROCEDURE, SECTION 340.5, PLAINTIFF’S ACTION IS BARRED BY THE STATUTE OF LIMITATIONS.

Code of Civil Procedure, Section 340.5 provides in pertinent part:

In an action for injury…against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered the injury, whichever occurs first. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Code of Civil Procedure, Section 340 provides in pertinent part:

Within one year: (3) An action for … battery.

In Gutierrez v. Mofid, (1985) 39 Cal.3d 892, 898, 218 Cal.Rptr. 313, 705 P.2d 886, the plaintiff alleged that she gave consent only to an exploratory operation to remove a tumor on her appendix.

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