Articles Posted in Birth Injury

(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.

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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 Expert Evidence About the Defendant’s Multiple Breaches of the Standard of Care

Defendant Dr. Lee breached the standard of care in three significant ways. First, she failed to obtain complete information from the nurse concerning the status of the labor and delivery at 17:00. The standard of care for a physician, whether resident or attending, required the physician to learn from the nurse the data that is necessary for the physician’s own diagnosis and assessment of the fetal status. She cannot rely only upon the nurse’s interpretation of the data. Also, the standard of care required a physician to monitor Ms. Jackson closely, because of her pre-eclampsia and gestational diabetes. By failing to ask for specific information, the defendant failed to fulfill that duty.

Second, if the defendant had asked for and obtained accurate data about the status of the labor, then the standard of care required her to understand that the fetus was having severe variable decelerations, diminished variability, fetal tachycardia and that the fetus was at risk for hypoxia. The standard of care would have required the physician to order the Pitocin to be turned off, and to assess the fetus’s status immediately and personally. Instead, the defendant waited another 22 or 23 minutes before examining Ms. Jackson. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Third, the standard of care required the defendant to deliver the baby immediately – as rapidly as she could get to Ms. Jackson’s room after the 17:00 telephone call, which the defendant physician testified took only a couple of minutes.

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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.

Direct Victim Analysis Is Inapplicable to Plaintiff Timothy Lee.

Plaintiffs argue that Timothy Lee is a “direct victim,” thereby entitling him to damages based upon a cause of action for NIED. Plaintiffs inappropriately rely on Burgess v. Superior Court, (1992) 2 Cal.4th 1064. In Burgess, the Supreme Court held that a mother could claim emotional distress damages as a direct victim of medical negligence which injured her baby during the birthing process. The Court’s rationale was based on the physician-patient relationship that gave rise to a duty owed to the mother which encompassed medical care rendered to both her and her fetus. As the Court stated:

It is in light of both these physical and emotional realities (the court was referring to the altruistic physical and emotional connection between a woman and her fetus. (Burgess at 1076)) that the obstetrician and the pregnant woman enter into a physician-patient relationship. It cannot be gainsaid that both parties understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother. Id. at 1076.

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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.)

If defendant Lee had asked, she would have learned that the variable decelerations were worsening (lower heart rate and longer duration) and the baseline was increasing and the variability was diminishing. A baseline increasing means that the fetus’s heart rate was getting faster when not in deceleration (fetal tachycardia). Here, the fetus’s heart rate had increased as high as 170 beats per minute from a previous normal baseline of approximately 150 beats per minute. This increase is indicative of fetal hypoxia (oxygen deprivation). Also, defendant Lee would have learned crucial information that the variability was diminishing as well, which is also indicative of hypoxia. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

At this point (17:00), Ms. Jackson’s condition required that the Pitocin be discontinued. Continuing the Pitocin in light of Ms. Jackson’s fetal monitoring changes is contraindicated, because uterine contractions decrease blood flow to the fetus. Pitocin has the effect of increasing the strength of the contractions. Pitocin should be discontinued if there is fetal distress. Lee did not order the Pitocin to be discontinued at 17:00. In fact, a nurse turned the Pitocin off, but waited about another 20 minutes before doing so.

At 17:18, a nurse telephoned defendant Dr. Lee once more and reported that there were variable decelerations that were deeper with a slower return to baseline. Most probably, to a reasonable degree of medical probability, these variable decelerations were the result of prolonged administration of Pitocin, or umbilical cord compression, or a combination of both. Defendant Lee, after five hours since her last visit with Ms. Jackson, at last went to examine her at 17:22 or 17:23. Three minutes earlier, however, the baby developed fetal bradycardia (a slow heart rate in the fetus). A normal fetal heart rate is 120 to 160 beats per minute. George’s heart rate had slowed to 80 to 90 beats per minute.

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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 nurse’s reference to “variables” means the variable decelerations of the fetus’s heart rate. There are many different types of decelerations of fetal heart rate. “Early decelerations” are decreases in the fetus’s heart rate that start at the beginning of a contraction and stop at the end of the contraction. “Late decelerations” are transient decreases in fetal heart rate that begin at the peak of the uterine contraction and do not return to baseline (the fetal heart rate over a period of time) until well after the contraction has ended. Late decelerations are indicative of utero placental dysfunction (insufficiency of the placenta to perform its function).

“Variables” (variable decelerations) are decelerations that are unrelated to the uterine contractions. They appear on a monitor strip as drops from the baseline heart rate and promptly return to baseline. Typically, this fetal heart pattern is the result of umbilical cord compression (the cord is compressed, which impairs the flow of blood and oxygen to the fetus) or maternal hypertension (which is part of pre-eclampsia). Variables that are persistent and continue to drop to very low heart rate levels, and that lengthen in duration, can indicate fetal distress. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

According to the hospital’s Physician Order records, defendant Dr. Lee ordered 8 liters of oxygen by mask and ordered the nurse to turn off the epidural (but not the Pitocin). This is a substantial amount of oxygen delivered in a manner intended to oxygenate the blood immediately. By using a mask (as opposed to a nasal cannula, which blows oxygen into the nostrils), the patient gets oxygen regardless of whether she breathes through her nose or her mouth. The amount of oxygen and the manner in which defendant Lee ordered it delivered indicates a concern about the variable decelerations. The reason for ordering 8 liters of oxygen by mask is to try to increase immediately the oxygen in the mother’s blood, which in turn oxygenates the fetus’s blood.

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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.

DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES

Attorneys for Defendants, Frank White, M.D., Max Green, M.D., and XYZ MEDICAL GROUP.

MEMORANDUM OF POINTS AND AUTHORITIES
Introduction and Summary of Plaintiffs’ Reply

Plaintiffs’ opposition is a confusing quagmire that improperly attempts to interweave Mr. and Ms. Lee’s claims regarding their son’s birth injuries. Mindy Lee’s claim for Negligent Infliction of Emotional Distress ( NIED ) is not the subject of moving parties’ motion. Plaintiffs’ opposition confuses the relevant case law as delineated by the Supreme Court and misapplies the facts of the case at bar.

The Moving Parties Do Not Dispute Timothy Lee’s Right to Allege a Cause of Action for NIED.

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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.)

When she arrived at the hospital at 0615, Ms. Jackson was in early labor. She also had a blood pressure of 171/108, which is quite elevated (above normal). Her previous blood pressures were approximately 100/60, so Ms. Jackson’s blood pressure was dangerously high. She also had 3+ protein in her urine, which is also elevated. (Normal is 0.) She also had pedal edema (swollen feet).

Ms. Jackson thus had a condition known as pre-eclampsia; in fact, it was severe.

Severe pre-eclampsia increases the risks to the mother and the child. Those risks include: heart failure, stroke, seizure, and placental abruption. These can cause severe brain injury or death to the baby. This condition indicated that Ms. Jackson’s labor must be closely monitored. A woman with severe pre-eclampsia should be delivered as expeditiously as possible in order to avoid these serious consequences. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

At 12:30, Ms. Jackson was placed on Pitocin. Pitocin is a drug that is used to induce labor or augment labor. For Ms. Jackson, it was being used to augment labor because she was having inadequate contractions. If a patient in Ms. Jackson’s condition is on Pitocin, then the baby is at greater risk for hypoxia. This is because Pitocin increases the contractual forces of the uterus, reducing placental blood flow and its ability to transfer oxygen and carbon dioxide to and from the fetus. The standard of care in 1998 required a physician, whether attending or a resident, to be aware of these greater risks to the baby associated with the use of Pitocin in women with Ms. Jackson’s condition.

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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.)

Plaintiffs’ Opposition to Defendant Ana Lee’s Motion for Summary Judgment; Memorandum of Points & Authorities
Summary of Argument

The defendant’s motion rests on evidence for which there is virtually no foundation and no authentication. Because the defendant bears the burden of proof, its reliance upon inadmissible evidence requires denial of the motion (regardless of whether the plaintiff offers countervailing evidence. Further, even if the defendant could overcome the deficiencies of her evidence, the testimony of the Dr. Jason White (a board certified obstetrician and Clinical Professor of Obstetrics and Gynecology) establishes that Dr. Lee breached the standard of care. The testimony of Dr. White also establishes that defendant Lee’s substandard care was a substantial factor in causing or contributing to George Jackson’s catastrophic injuries. For more information you are welcome to contactSacramento personal injury lawyer, Moseley Collins.

Statement of Facts
Ms. Jackson’s Labor and Delivery Of Son George Jackson

Ms. Jackson was a pre-natal patient of the NorCal Perinatal Medical Group on January 26, 1998, the date she arrived at Universal Hospital. Ms. Jackson’s expected due date was February 2, 1998, so she was considered at full term for this delivery.

Ms. Jackson developed gestational diabetes during her pregnancy with George. Because Ms. Jackson had gestational diabetes, she was at greater risk for perinatal (near delivery) complications.

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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 medical malpractice/birth injury case and its proceedings.)

In Marina Emergency Medical Group v. Superior Court (2000) 84 Cal.App.4th 435, the defendant emergency room doctor was negligent in treating plaintiff’s lacerated thumb and that injury was later aggravated by the negligence of plaintiff’s personal physician. (Id. at p. 437.) At the trial against the ER doctor only, plaintiff successfully moved to exclude all evidence of the subsequent medical treatment, preventing the jury from allocating fault among the various individuals responsible for plaintiff’s injury. (Id. at pp. 437-438.)

On appeal, plaintiff argued the ER doctor was an “original tortfeasor who was vicariously” liable to plaintiff for the subsequent tortfeasor’s negligence. Therefore, according to plaintiff, the successive tortfeasor liability law eliminated the requirement of apportionment of fault under Proposition 51 in the same manner as respondeat superior eliminated apportionment in employer/employee cases. (Id. at p. 440.) The Second District Court of Appeal disagreed and held that the ER doctor was allowed to reduce his liability to plaintiff through apportionment of fault among all responsible parties.

The Marina Court distinguished the line of cases involving pure respondeat superior (i.e., employer/employee) or imputed liability based on statute. The Marina Court correctly recognized that the “subsequent medical treatment” liability theory is not vicarious liability as that term is normally understood. The original tortfeasor’s liability for subsequent negligence is not derivative of the subsequent tortfeasor’s conduct. (Id. at p. 440.) Rather, the law holds the original wrongdoer liability because it regards the subsequent medical treatment to be proximately caused by the original injury. (Ibid.)

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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 medical malpractice/birth injury case and its proceedings.)

THE JURY IS REQUIRED TO APPORTION FAULT AMONG THE UNIVERSE OF TORTFEASORS

Since the late 1970’s California adopted a comparative fault system for tort liability whereby plaintiff’s recovery in damages can be reduced in proportion to plaintiff’s fault for the injury and defendants became jointly and severally liable for plaintiff’s injury. (Wimberly v. Derby Cycle Corporation (1997) 56 Cal.App.4th 618, 625.) But these comparative fault principles allowed for defendants with virtually no share of fault with the obligation to pay the lion’s share of plaintiff’s damages. (Id. at p. 626.)

In 1986, Proposition 51 was passed by the voters and, as a result, Civil Code section 1431.2 now provides that each defendant shall be liable only for the amount of plaintiff’s “non-economic damages” allocated to that defendant in direct proportion to that defendant’s percentage of fault. (Civ. Code, § 1431.2.)

Since the passage of Proposition 51, there are a few instances where the courts will not apply Proposition 51 to apportion liability among the defendants to reduce a defendant’s liability to plaintiff using comparative fault principles. For example, where there is true vicarious liability between an admitted employer and an employee, the courts will not apply Proposition 51 to reduce the employer’s liability to plaintiff for the employee’s wrongful conduct. (Miller v. Stouffer (1992) 9 Cal.App.4th 70, 84.) The same is true in the permissive user/vehicle owner context. (Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847.)

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