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/medical malpractice 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.

The Hearing on the Demurrers
At the hearing on the demurrers by co-defendants, the court engaged the parties in a discussion regarding the issues now raised in this motion. At the hearing, the court stated:

Now, I don’t know if anyone was negligent here or not, I’m not deciding the underlying factual case here. All I’m saying is are you saying a woman who has seizures, having problems with a birth, comes to the hospital, nurses want to get her treated, saying Let’s get her treated, then she goes in to have the delivery and because there is a certain time – it’s not a lot of time, I figure 30 minutes or something like that, the baby is, then, born blue with other problems that turn and result from a lack of oxygen and now is severely brain damaged, don’t you think that scenario is sufficient for a person to come to a reasonable conclusion that somebody did something wrong?

Right. Lack of the timely delivery produces a blue baby because most of the time, babies are not born blue and they are sufficiently oxygenated not to have brain damage. The fact that the baby is born blue, isn’t that circumstantial evidence that a person knows something is done wrong?

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 birth injury/medical malpractice 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.

Hurlbut v. Sonora Community Hospital
This is not the first time this issue has come up in the context of a birth injury case. For example, in Hurlbut v. Sonora Community Hospital, supra, 207 Cal.App.3d. 388, the undisputed facts established that the father was present during labor, during which time he became concerned about changes on the fetal monitor and possible harm to the baby. Even though the father was concerned about his child, and suffered emotional distress as a result, the court denied NIED recovery because he did not observe the consequent harm. As in our case, the combination of observing evidence of complications during labor and actual harm to a baby, discovered at the time of delivery, was found to be insufficient. The Hurlbut court stated:

The most that can be said is that certain experiences allow the parents to “deduce that some problem or injury had or would damage their child.” There was no direct perception of injury. There is no evidence of any contemporaneous awareness that defendant’s conduct was the cause of the perspective harm. It was not until after the fact that observations of the infant confirmed some injury.

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 birth injury/medical malpractice/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.

Ochoa v. Superior Court Discusion

Ochoa v. Superior Court, supra, 39 Cal.3d 159, the case relied on most heavily by plaintiffs at the pleading stage, involved a 13-year-old boy who died in the infirmary of a juvenile hall after repeated requests by his mother to provide care were refused. Recovery by the mother for negligent infliction of emotional distress was allowed, but only because she specifically observed the withholding of care and observed its effect on her son. The rule announced in Ochoa was where there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted. (39 Cal.3d at page 170.) In other words, for a parent to recover for NIED under Ochoa, they have to witness, with knowing comprehension, the causal connection between accident and injury. (See, Golstein v. Superior Court, supra, 223 Cal.App.3d at 1424-1425.)

There was a great deal of discussion regarding whether a plaintiff has to possess a certain level of medical sophistication in order to satisfy the contemporaneous awareness requirement of Ochoa. Although there is some reference to this in the case law, in our case that discussion really misses the point: It doesn’t matter whether Paul Green was a doctor or not, just as it didn’t matter whether Ms. Ochoa was a doctor or not; what matters is whether he made the connection between what he observed and injury to his daughter at the time. The undisputed evidence establishes that he did not, and so he cannot recover.

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 birth injury/medical malpractice 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.

PLAINTIFF PAUL GREEN MAY NOT MAINTAIN A CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

As the Court is aware from the discussion of these issues at the demurrer stage, the law governing recovery for negligent infliction of emotional distress in medical malpractice cases is rich and complex, with sometimes fairly arbitrary distinctions drawn by the courts in allowing recovery to one group of plaintiffs and denying recovery to another. However, the law which has emerged is also quite clear that in order for a parent to recover for NIED in the context of medical care provided to a child, the parent must have witnessed the injury-producing event and have been aware at that time that the event was causing injury to the child. (Ochoa v. Superior Court (1985) 39 Cal.3d 159.) This is beyond dispute and the unquestioned law of the land.

After more than 30 years of refinement and explanation, we now have before us a long unbroken line of medical malpractice cases, starting with Jansen v. Childrens Hospital Medical Center, (1973) 31 Cal.App.3d 22, and culminating in Bird v. Saenz, (2002) 28 Cal.4th 910, where the courts have denied recovery to a family member who witnessed the effect of the injury-producing event, rather than the event itself. This theme has been repeated in these cases time and time again.

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 birth injury/medical malpractice 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.

However, central to the ruling in Burgess is the admonition that the direct victim theory of NIED does not create a new cause of action, but instead simply recognizes that an obstetrician owes a duty of care to a pregnant mother in addition to the injured baby, even if the mother suffers no harm herself. The Supreme Court stated:

We have repeatedly recognized that the negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply.

In contrast [to the bystander theory of NIED], the label direct victim arose to distinguish cases in which damages for serious emotional distress are stated as a result of a breach of duty owed the plaintiff, that is assumed by the defendant or imposed on the defendant is a matter of law, or that arises out of a relationship between the two. In these cases, the limits set forth in Thing, supra, have no direct application. Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duties, are present in a given case.

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 birth injury/medical malpractice case and its proceedings.)

PLAINTIFF MELISSA GREEN MAY NOT MAINTAIN A SEPARATE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Plaintiff Melissa Green qualifies for recovery of damages for her emotional distress under the direct victim theory, at least as to any defendants with whom she had a physician-patient relationship during labor. (See, Burgess v. Superior Court (1992) 2 Cal.4th 1064.) As the Burgess court explained, the realities of pregnancy and child birth, both physical and emotional, are such that any negligence during delivery which causes injury to the fetus and resulting in emotional anguish to mother breaches a duty directly the mother. (2 Cal.4th at 1069.) However, the physician/patient relationship that may have existed between moving defendant and Ms. Green prior to the birth of Abbey Green does not give rise to a separate cause of action, but rather is part of the negligence cause of action pleaded elsewhere in her complaint. This is done in order to give rise to two separate $250,000 MICRA caps on general damages, both in favor of Ms. Green.

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 birth injury/medical malpractice case and its proceedings.)

SUMMARY OF ARGUMENT

The third, fourth and fifth causes of action of plaintiffs’ complaint are not appropriate in a birth injury case such as this one. The third cause of action, for negligent infliction of emotional distress by the mother, Melissa Green, is not proper because it is subsumed by her cause of action for negligence. The fourth cause of action by the father, plaintiff Paul Green, for negligent infliction of emotional distress, is improper because Mr. Green does not meet the requirements for recovery under either the direct victim theory or the bystander theory of NIED. Specifically, because Mr. Green admits that he did not become aware of any injuries suffered by the baby, indeed was not even concerned about injuries suffered by the baby, until he saw her come out, he cannot satisfy the contemporaneous awareness requirement for recovery for NIED. Finally, Mr. Green’ cause of action for loss of consortium fails because the only harm caused to their marriage as a result of the events in question is related to the child’s injuries, rather than injuries to his spouse, and damages for loss of filial consortium are not permitted in California.

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.

SUMMARY ADJUDICATION MUST BE GRANTED WHERE THE MOVING PAPERS ESTABLISH THAT THERE EXISTS NO TRIABLE ISSUE OF MATERIAL FACT AND THAT THE MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
California Code of Civil Procedure Section 437c provides that a motion for summary adjudication shall be granted if all the papers submitted show that there exists no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

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 birth injury/medical malpractice case and its proceedings.)

Motion for Summary Adjudication of Causes of Action and Damages Claims; Memorandum of Points and Authorities
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical malpractice case arising out of the birth of plaintiff Abbey Green on October 6, 2004. The essential facts are not in dispute: In the early morning hours of October 6, 2004, Abbey’s mother, plaintiff Melissa Green, who was 39 weeks pregnant at the time, woke up and reported that her water had broken, and then began to exhibit seizure-like behavior. She was transported by paramedics to Regional Medical Center, which at the time was owned by the moving defendant Hospital Systems, Inc., arriving at the hospital at approximately 2:50 a.m. Ms. Green was taken to the emergency room and then labor and delivery, where Abbey was delivered at 3:37 a.m., 47 minutes after her mother arrived at the hospital. Husband and father, Paul Green, was at his wife’s side throughout. Following delivery, Ms. Green experienced complications and had to be hospitalized for another five days, although she has since recovered completely.

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.

Continue Reading ›

(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.)

LIABILITY

The care and treatment rendered to Ms. White by Cindy Brown, M.D., and SAC Medical Group, Inc., fell below the standard of care in many respects, and it was that failure that caused the premature birth of Tomas and Owen and their ultimate demise.

Ms. White was at risk for pre-term labor and premature lengthening and dilatation of her cervix for the following reasons:

1. She was pregnant with twins;
2. She recently had undergone a LEEP procedure, i.e., a removal of a portion of her cervix due to abnormal Pap smear/biopsy;

3. She had delivered a child vaginally within the last year prior to this pregnancy.

The standard of care required Dr. Brown to refer Ms.. White to a perinatologist/high risk pregnancy specialist or comply with the standard of care of a perinatologist by assessing Ms.. White’s cervix every two weeks throughout her pregnancy by way of transvaginal ultrasounds.

Secondly, the standard of care required, upon plaintiff’s complaint on March 3rd of cervical pinching or vaginal pain, an immediate vaginal examination to determine whether or not the cervix had dilated and evaluation of the cervix by ultrasound.

Had Dr. Brown complied with the standard of care, early intervention would have occurred. Ms.. White would have been put on bed rest, been advised to stop working and more likely than not would have been able to prolong the pregnancy to 32 plus weeks. The twin baby boys died from the effects of premature labor and would have survived had Dr. Brown complied with the standard of care.

Continue Reading ›

(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.)

During the prenatal visit on March 3, 2004, Ms. White complained to Dr. Brown about pinching she was feeling at the cervix, to which Dr. Brown replied that it was caused by the way the babies were sitting in the uterus, that the head may be touching the cervix.

Dr. Brown did not do a vaginal exam to evaluate her cervix, or to see if it had lengthened or dilated. Furthermore, she failed to perform a transvaginal ultrasound which is commonly used to evaluate the cervix. It is doubtful that Dr. Brown had the competence to perform such an ultrasound.

The following day, on March 4, 2004, Ms. White experienced a little bit of pinkish discharge, and through the night started feeling cramping. The next morning, concerned that something was wrong, Ms. White called Universal Memorial Hospital, and they recommended that she come in to the Labor and Delivery Department, and be hooked up to a monitor to see what was going on. Dr. Gonzalez was the OB/GYN covering for Dr. Brown on that day. Upon examination, he performed a vaginal examination and determined that she was dilated 3 cm. He started her on medication in an attempt to stop the pre-term labor and further dilation of her cervix. At that time, Ms. White was in her 23rd week of the pregnancy.

Continue Reading ›