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.

(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.

SUMMARY JUDGMENT IS PROPER WHERE THERE IS NO TRIABLE ISSUE OF FACT
The law governing summary judgment is set out in California Code of Civil Procedure section 437c. This Court must determine whether plaintiffs have presented any facts which give rise to a triable issue. California Code of Civil Procedure § 437c provides in pertinent part:

(a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.

(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

See also Vesely v. Sager (1971) 5 Cal.3d 153, 95 Cal.Rptr. 623. See also Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759, 199 Cal.Rptr. 816, 819.

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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.

STATEMENT OF FACTS

Abbey Smith initially presented to Universal Hospital on February 19, 2001, at or about 6:30 p.m., and was shortly thereafter admitted for induction. The records clearly indicate that Dr.Lee was the physician on duty at the time of admission. While on duty, Dr.Lee was responsible for treating the patients from the XYZ Obstetrics and Gynecology group that were admitted to Universal Hospital. The hospital records further note that Dr. Brown relieved Dr.Lee at approximately noon on February 20, 2001. The hospital records, as well as the deposition testimony of Ms. Smith and Mr. Smith, clearly establish that Dr. Brown was Ms. Smith’s obstetrician throughout the remainder of her labor. Such records and testimony further establish that Dr. Brown delivered Mark Smith, Jr., the following day, February 21, 2001.

During the course of her labor, Ms. Smith received several amnioinfusions, the first of which was initiated sometime around 1:15 p.m. on February 20, 2001. An epidural was administered around 3:20 p.m.; a second amnioinfusion was started around 4:30 p.m. and completed around 5:00 p.m. At approximately 6:00 p.m., it was documented that Ms. Smith was complaining of pain secondary to the epidural, vomiting of yellow sputum-like fluid and that the fetal heart rate was reactive with mild variable decelerations. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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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.)

DEFENDANTS ELIZABETH BROWN, M.D., STANLEY WOO, M.D., AND WOMEN’S HEALTH GROUP’S TRIAL BRIEF (PRE-TRIAL REPORT)

INTRODUCTION

The instant action is one for medical malpractice, wrongful life and wrongful birth brought on behalf of the plaintiffs, Nancy Smith, Thomas Smith, and minor plaintiff Nicholas Smith, by and through his Guardian Ad Litem, Nancy Smith, for the failure to diagnose multiple congenital anomalies prenatally during ultrasounds performed on July 21, 2008, by defendant Stanley Woo, M.D., and August 11, 2008, by defendant Elizabeth Brown, M.D.

Plaintiffs allege that Drs. Woo and Brown failed to properly perform the ultrasounds by failing to obtain measurements. Plaintiffs allege that had the congenital anomaly that the plaintiff Nicholas Smith was born with, known as hemimeganencephaly, been diagnosed, plaintiffs Nancy Smith and Thomas Smith would have aborted the pregnancy and the minor plaintiff Nicholas Smith would not have been born. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The evidence will show that both Dr. Woo and Dr. Brown met the standard of care regarding the ultrasounds performed, both of which were limited ultrasounds and they were not required to evaluate the anatomy of the baby.

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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.

INTRODUCTION cont.

On January 19, 2001, plaintiff commenced a medical malpractice action against the following defendants: Xavier Greene, M.D., XYZ Perinatal Group, and Universal Hospital. The Complaint contains the following causes of action:

(1) The First Cause of Action, on behalf of Mark Smith, Jr., alleges negligence as against various health care provider defendants. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(2) The Second Cause of Action, on behalf of Abbey Smith, alleges negligence as against various health care provider defendants.

(3) The Third Cause of Action, on behalf of Abbey Smith, alleges a claim for negligent infliction of emotional distress, as against various health care provider defendants.

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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.

PLEASE TAKE NOTICE that defendant, David Brown M.D., will move this Court for summary judgment in his favor, and against plaintiffs, Abbey Smith and Mark Smith, Sr., in the above-captioned action, in Sacramento County Superior Court. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant David Brown, M.D.’s, Notice of Motion and Motion for Summary Judgment, and Memorandum of Points and Authorities.

This motion for summary judgment is brought on the following grounds:

(1) This action is barred by the Statute of Limitations, pursuant to Code of Civil Procedure §§ 340.5 and 474;

(2) There is no triable issue of material fact as to the summary judgment sought, and therefore the moving party is entitled to such summary judgment as a matter of law, pursuant to Code of Civil Procedure § 437c.

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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.)

WHETHER ANY OF THE DEFENDANTS HAVE OR HAVE NOT BEEN SUED FOR PROFESSIONAL NEGLIGENCE IS NOT RELEVANT IN THIS ACTION

The only issue properly before the court and the trier of fact is whether or not the defendants breached the standard of care to these patients; whether or not said breach was a substantial factor in causing injury or damage; and the extent of that injury/damage. It is of no consequence that this case may, or may not be, the first in either of these individual defendants’ career in obstetrics.

Comments, suggestions, or innuendo that defendants are good obstetricians or because of a non-existent lawsuit history will only serve to prejudice the jury against plaintiffs, confuse the issues and allow for the potential for jury speculation, rather than focusing on the evidence. Like evidence of good “conduct” or good “character,” such comments, evidence or argument, is improper because it asks the jury to violate the law and their oath to judge the case based on the evidence presented to them and without regard to sympathy for any party. While such propaganda can be cleverly worded and disguised in its presentation, it is still inadmissible and improper and should not be allowed by this court. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

EVIDENCE CODE § 352 MANDATES EXCLUSION OF SUCH EVIDENCE, AS IT WOULD RESULT IN UNDUE PREJUDICE TO PLAINTIFFS, CONFUSION OF THE ISSUES, AND WOULD MISLEAD THE JURY SUCH THAT ITS PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE
This Court has the discretion to exclude prejudicial evidence. California Evidence Code § 352 provides that:

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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.)

Plaintiffs’ Motion in Limine to Prohibit Argument or Evidence to Suggest That This is the Only Time the Defendant(s) Have Been Sued for Malpractice

Plaintiffs will move this court in limine, before trial and selection of jury, on the grounds that any such evidence is not relevant to any issues presented in this action, and would be highly improper and prejudicial to Plaintiffs.

This motion is based upon this notice, the accompanying Memorandum of Points and Authorities, any documents already on file with this Court, and upon such other oral and documentary evidence as may be presented prior to or at the hearing of this matter.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Plaintiff Nicholas Smith, a minor by and through his guardian ad litem, Nancy Smith, in the instant personal injury lawsuit seeks damages for devastating permanent personal injuries sustained during the course of his gestation in this birth injury action. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins
Plaintiffs anticipate that defense counsel may improperly attempt to inform the jury that this case is the first and only medical malpractice claim filed against the defendants. (See Part 2 of 2.)

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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 medical malpractice case and its proceedings.)

It is also 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.

As such, with trial likely to occur in the next six to nine months, defendants have been severely prejudiced by plaintiffs’ inappropriate conduct including the following: (1) defendants have been unable to ascertain plaintiffs’ specific contentions/allegations; (2) defendants have been unable to identify subsequent treating doctors so that they may subpoena such records, keeping in mind that it will take an additional 30-45 days to obtain these records once subpoenas are issued; and (3) while defendants can retain, at least, some experts, they will be unable to obtain complete expert opinions until the experts are allowed to review all records. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Code of Civil Procedure §36 provides, in pertinent part, the following:

(b) A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under the age of 14 years unless the court finds that the party does not have a substantial interest in the case as a whole. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision.

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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 medical malpractice case and its proceedings.)

It is also 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.

When responses were not forthcoming, by letter dated May 22, 2002, counsel for these responding defendants requested that plaintiffs’ counsel provide responses to the outstanding discovery responses by May 29, 2002. In said letter, counsel for responding defendants further indicated that given plaintiffs’ pending motion for trial preference, it was imperative that these severely outstanding responses be provided posthaste. While plaintiffs’ counsel again requested, and was granted, another extension of time, until June 1, 2002, to provide responses, no responses were forthcoming. As such, it is disingenuous for plaintiffs to request trial preference in a highly complex action involving extensive damages when they have impaired defendants’ ability to conduct even basic discovery necessary to evaluate this action and to prepare for trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue Reading ›

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 personal injury case and its proceedings.)

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.

This is a complex medical malpractice and birth injury action, involving numerous issues pertaining to prenatal and neonatal care, with allegations of catastrophic injury. Indeed, this action involves three distinct plaintiffs, comprised of the infant and his two adult parents, each of whom has claims which will require extensive work-up for purposes of evaluation and trial preparation. Given the nature of the allegations, it is expected that plaintiffs will be claiming several million dollars in damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

However, while defendants have acted expeditiously in recognition of the complexity of the issues presented in this matter, their efforts to do so have been severely impeded by these same plaintiffs who are now seeking a preferential trial setting. Indeed, despite the fact that these responding defendants served initial written discovery on February 27, 2002, to date, nearly four months later, plaintiffs have failed to provide any responses thereto. Plaintiffs’ repeated failure to respond to discovery has required defendants to file Motions to Compel.

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