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 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.

Response of Defendants, Mark Davis, M.D., Glenn Hall, M.D., and Universal Perinatal Group, to Plaintiffs’ Motion for Trial Preference; Memorandum of Points and Authorities
MEMORANDUM OF POINTS AND AUTHORITIES

PLAINTIFFS ARE SEEKING A PREFERENTIAL TRIAL SETTING AS ONE OF A NUMBER OF STRATEGIC MANEUVERS DESIGNED TO IMPEDE DEFENDANTS AND PREJUDICE THEIR ABILITY TO PROPERLY PREPARE THIS MATTER FOR TRIAL.

This is an action for medical malpractice and intentional tort (battery) arising out of the care and treatment rendered to co-plaintiff, Kristy Smith, during the course of her pregnancy with, and during the delivery of minor plaintiff, Owen Smith. This action also appears to be based on the care and treatment rendered to the infant immediately following his birth. With respect to the infant, plaintiffs are alleging that he suffers from severe and catastrophic neurological deficits as a result of defendants’ alleged negligence. Plaintiffs, Wesley Smith and Kristy Smith, are also alleging a cause of action for emotional distress. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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(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 Evidence Demonstrates Triable Issues Of Whether Defendant Dr. Lee Breached the Standard of Care And Whether She Caused George Jackson’s Brain Damage

Even if the defendant could overcome the several evidentiary defects of her motion, she has still failed to demonstrate as a matter of law that she met the standard of care or that she did not cause George’s brain damage. The defendant’s expert evidence focuses on the events of 17:22, when defendant Lee finally went up to see her patient. At that point., she contends, she reacted quickly and her supervisor endorsed her actions. The defendant necessarily disregards her prior lapses that created the emergency in the first place. In other words, while she boasts that she acted quickly to “put out the fire,” she ignores her own negligence that started the fire in the first place. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

The expert testimony of Dr. Jason White, board-certified in Obstetrics and Gynecology, and a Clinical Professor of medicine at the University of California, explains defendant Dr. Lee’s multiple breaches of the standard of care and how they caused George’s brain damage. The defendant failed to ask for the objective data concerning the fetus’s status. She relied on vague and generalized interpretations from a nurse, rather than soliciting facts that she could use to make a determination.

If she had asked those questions, she would have fully appreciated the growing danger to George. The baby’s baseline heart rate had become 170 beats per minute when not in deceleration, which was not only an increase but abnormally high as well. The baby was already tachycardic at 17:00, but the defendant failed to ask about that. She also would have ordered the Pitocin to be turned off, because that was contributing to the fetal distress.

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(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 Ross declaration is equally week on the issue of causation. The defense expert asserts that the few minutes of delay in attempting a vacuum extraction did not cause George’s brain damage. The declaration fails to address the manifest question, though: If that did not cause the brain damage, then what did? Further, the defense expert fails to address the delay from 17:00 to 17:22. If this did not cause brain damage either, then what explanation does the defense expert offer? The defense expert’s declaration is silent about all of these questions. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

As Kelley held, without illuminating explanation, [an expert’s declaration is] insufficient to carry [the defendant’s] burden in moving for summary judgment. Moreover, because the defendant’s supporting declaration is inadmissible to support summary judgment, the defendant failed to meet her threshold burden of persuasion. The burden of production thus never shifted to George, so the defendant’s motion for summary judgment should be denied even without considering the opposing evidence. C.C.P. § 437c(o)(2); FSR Brokerage, 35 Cal.App.4th at 73 n.4, 41 Cal.Rptr.2d at 407 n.4 (1995) (plaintiff has no burden to show a triable issue if the defendant failed to meet its initial burden of showing by admissible evidence the absence of a triable issue of material fact).

The defendant may attempt to cure these deficiencies by having her expert submit a new or supplemental declaration. Again, however, any such declaration should be rejected as untimely.

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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/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiffs’ citation of Molien v. Kaiser Foundation Hospitals, (1980) 27 Cal.3d 916, is confusing at best. Molien involved a husband’s claim of emotional distress based on the harm that occurred to him and his marriage. Specifically, the physician misdiagnosed Mr. Molien’s wife with syphilis, leading her to believe he had had an extramarital affair. This caused significant marital problems as well as causing Mr. Molien to be medically tested and to take medication. As the Supreme Court later held in Burgess, to the extent Molien stands for the proposition that it introduced a new method for determining the existence of a duty, as limited by foreseeability, it should not be relied upon and its discussion of duty is limited to its facts. Burgess, at 1074. However, Burgess did reaffirm the principles derived from Molien as follows:

(1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached. (Burgess at 1074.) Again, no duty arose between these moving parties and Mr. Lee. Therefore, Timothy Lee cannot sustain a claim for NIED, based on the direct victim theory.

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(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 Richard Green Declaration is Insufficient To Support Summary Judgment

If the defendant relies upon expert testimony to meet its burden of persuasion, that testimony must meet the standards of admissibility. An expert’s bare conclusion is insufficient to support summary judgment, just as it would be insufficient at trial. In Kelley v. Trunk, 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 (1998), the appellate court held that an expert declaration was insufficient to support summary judgment. That declaration was remarkably similar to the Willis Declaration in the present action. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Kelley held that the declaration of the expert was deficient to support summary judgment. As the appellate court stated, to be admissible the expert had to explain the connection between the recitation of facts gleaned from the medical records and the ultimate opinion:

[A]n expert opinion is worth no more than the reasons upon which it rests. Here, the crucial issues were: What was the nature of the disease or condition that required Kelley’s surgery? Was it brought on by the laceration? What symptoms of this condition reasonably might have been observable at the time Kelley complained to Dr. Trunk of continuing intense pain unmediated by medication? Should a reasonable doctor at this point in time have recognized the possibility of severe complications? If so, why? If not, why not? Would complications of the kind Kelley eventually suffered have become evident any earlier than three or four days after the laceration? Would earlier intervention have mitigated Kelley’s injury? Herndon’s declaration addressed none of these issues. Without illuminating explanation, it was insufficient to carry Dr. Trunks’ burden in moving for summary judgment. 66 Cal.App.4th at 524, 78 Cal.Rptr.2d at 124.

In the case at bar, the Ross declaration has the same deficiencies, because there are no explanations or answers to the analogous questions that would be relevant in this case. Why didn’t defendant Lee recognize the complications earlier? In view of Ms. Jackson’s higher risk, and thus greater dangers to the baby, why was it within the standard of care to wait an additional 22 minutes to check on the labor, after the defendant was plainly aware of the risk of hypoxia (as indicated by the order for 8 liters of oxygen by mask)?

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(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 Separate Statement Fails to Include Citations to Evidence that Support the Assertions

Another flaw of the defendant’s Separate Statement is the failure to include citations to evidence that support the assertions of fact. Material Fact 2 asserts that the defendant Lee initiated care of Ms. Jackson only once, at 5:22 p.m. As support, the defendant cites several lines on pages 63 through 65 of co-defendant Stein’s deposition.

Defendant Lee’s testimony, however, does not state the supposed Material Fact. That testimony merely states that it was her custom to tell the attending physician (co-defendant Stein) that if there was a call from a nurse about Ms. Jackson, it would have been her practice to notify the attending physician that she was going to see the patient and, later, to tell him what was happening with the patient. The cited testimony does not state or even insinuate that defendant Lee initiated care of Ms. Jackson only once at 5:22 p.m. In fact, defendant Lee admitted that she does not even remember getting a call from a nurse before 5:22 p.m.

The defendant also relies on her Exhibit E to prove that she entered Ms. Jackson’s room at 5:22 p.m., but that document has significant evidentiary flaws. There is no testimony regarding who wrote the notes or when they were written. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

The defendant includes as part of her counsel’s declaration several other documents, but the defendant’s Separate Statement cites none of them in support of the motion or the alleged material facts. In particular, the defendant includes pages 21, 24, 25, 34, 35, 43, 44, 52, 70-72 and 77 from the deposition of co-defendant Stein.

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(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 appellate courts have emphasized that a defendant’s failure to provide a foundation for the documents on which it is relying will require denial of a motion for summary judgment. In Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 719-710, 128 Cal.Rptr.2d 529, 541-542, an attorney for a defendant offered a declaration in support of a motion for summary judgment. That declaration attested to the purported authenticity of exhibits in support of motion for summary judgment. The declaration failed to show that attorney was custodian of records, that the documents were prepared in the regular course of business, that he prepared documents or circumstances under which the documents were created. The trial court ruled that the documents were inadmissible due to lack of foundation, and the appellate court affirmed that ruling.

The defendant’s Separate Statement of Material Facts must cite to admissible evidence. A violation of this rule is sufficient in itself to deny the motion for summary judgment. C.C.P. § 437c(b). Because the defendant’s Material Facts 3 and 4 are unsupported by admissible evidence, the motion for summary judgment can be denied on that basis alone. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

The defendant may attempt to add additional evidence to cure this defect in her reply brief. If she does so, that effort should be rejected. New evidence can be offered in a reply only in exceptional circumstances. Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362 n.8, 11 Cal.Rptr.2d 811, 819 n.8.

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(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 Failed to Meet Her Threshold Burden of Proving that She is Entitled to Summary Judgment
The Evidence Upon Which the Defendant Relies Has No Foundation

The defendant relies upon one piece of evidence to try to prove that she acted within the standard of care: Defense Exhibit E, a photocopy of a portion of a fetal monitor strip. The defendant’s lawyer also attached a document identified as Exhibit D, which she asserts is a portion of a fetal monitor strip. This document has all of the same evidentiary infirmities as Exhibit E, plus it is not relevant to any issue because it is not cited anywhere in the defendant’s Separate Statement.

The defendant’s Separate Statement shows that she relies solely on this document as proof that of her assertion that she acted quickly and timely, and within the standard of care. The document, however, has no foundation and is unauthenticated. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Two of the material facts in defendant Lee’s motion rely upon this unauthenticated document that her lawyer attempts to interpret and introduce into evidence. Material Facts 3, 4 and 5 rely upon alleged medical records that have no foundation. There is no declaration from a custodian of records showing that this document concerns Ms. Jackson or her baby. There is nothing on the document that is self-authenticating. There is handwriting on the document, but there is no identification of the author of the handwriting. There is no declaration or deposition testimony from anyone who purports to be the author. Further, the writings themselves are plainly handwritten, often illegible, and using a plethora of uncommon abbreviations.

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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/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Plaintiffs’ opposition also relies on several cases involving a mother’s claim for NIED, which differ from the motion before the court. First, plaintiffs’ rely on Sesma v. M. Cuento, M.D., (1982) 129 Cal.App.3d 108. According to plaintiffs’ brief, Sesma involved a woman in labor who brought a cause of action for NIED based on a stillbirth. The motion at bar does not involve a mother’s claim for NIED. Rather, it involves Mr. Lee’s claim for NIED, which must be based on the bystander theory. Plaintiffs raise the issue of foreseeability, but, as put forth in moving parties’ motion, have alleged no facts that would support this theory. Rather, they rely on their strategy of intertwining the mother’s and father’s claims of NIED. Again, Johnson v. Superior Court, (1981) 123 Cal.App.3d 1002, involved a mother’s claim for NIED caused by a medically caused stillbirth.

Plaintiffs argue that Marlene F. v. Affiliated Psychiatric Medical Clinic Inc., (1989) 48 Cal.3d 583, applies. Marlene F., as stated in plaintiffs’ opposition, involved two mothers and their sons who sought therapy. Plaintiffs state it best: the court held that a mother of a minor child could state a claim for NIED against the psychotherapist who consulted to treat both the mother and son and then sexually molested the son.

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(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 plaintiff has no burden to show a triable issue if the defendant failed to meet its initial burden of showing by admissible evidence the absence of a triable issue of material fact. FSR Brokerage, Inc. v. Superior Court, 35 Cal.App.4th 69, 73 n.4, 41 Cal.Rptr.2d 404, 407 n.4 (1995) (citations omitted). Even if the defendant makes its initial showing in support of summary judgment, it is not necessarily entitled to summary judgment. The showing merely shifts the burden to the plaintiff to show a triable issue about one of the elements of the action or of those affirmative defenses. C.C.P. § 437c(o)(2). For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

A court must liberally construe the evidence offered in opposition to a motion for summary judgment, and strictly construe the evidence offered in support of the motion, when it is determining the existence of a triable issue of fact. Speaker v. Adamson Cos., 30 Cal.3d 358, 373, 178 Cal.Rptr. 783, 791 (1981). A court must consider the direct as well as the circumstantial evidence on each issue, and the reasonable inferences that can be drawn from the evidence. Mann v. Cracchiolo, 38 Cal.3d 18, 210 Cal.Rptr. 762, 771 (1985).

In ruling on the motion [for summary judgment], the court must consider all of the evidence and all of the inferences reasonably drawn therefrom … and must view such evidence … and such inferences … in the light most favorable to the opposing party. Aguilar, 25 Cal.4th at 843, 107 Cal.Rptr.2d at 856 (citations and internal quotations omitted).

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