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/medical malpractice case and its proceedings.)

BRIEF STATEMENT OF FACTS

This medical malpractice action arises out of the prenatal, perinatal and postnatal care and treatment provided to Molly Brown and her minor son Mark Brown by defendants Tom White, M.D., Richard Hill, M.D., and Memorial Hospital (hereinafter “Memorial”). On June 20, 2000, Mrs. Brown delivered her son, Mark at Memorial. Plaintiffs contend that as a result of defendants’ alleged negligence in caring for Mrs. Brown and her son Mark Brown while at the hospital, Mark Brown suffered permanent neurological damages, including cerebral palsy.

As to defendant Memorial, plaintiffs contend its nurses negligently delayed in attaching Mrs. Brown to a fetal heart monitor upon her presentation to the hospital, that defendant failed to implement intrauterine resuscitation maneuvers, and that defendant’s nurses failed to timely contact Dr. White. (See, Molly Brown’s responses to special interrogatory no. 23). Plaintiffs further contend that, as a result of this alleged negligence, plaintiff Mark Brown suffered physical, emotional and other damages. Plaintiffs allege defendants’ negligence caused Molly Brown to suffer physical, emotional and loss of earnings damage. Mrs. Brown brings her claim for emotional distress as a direct victim, under Burgess v. Superior Court (1992) 2 Cal.4th 1064. Plaintiff Stan Brown contends he suffered emotional distress as a bystander, pursuant to Thing v. LaChusa (1989) 48 Cal.3d 644 and loss of consortium damages as a result of his wife’s alleged injuries. (See Part 3 of 5.)

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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/medical malpractice case and its proceedings.)

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT MEMORIAL HOSPITAL’S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION

This is a medical malpractice action arising out of a birth injury suffered by the minor, Mark Brown. The minor suffered birth injuries resulting in cerebral palsy, and cognitive and developmental delay.

Memorial Hospital, where the minor was born, now moves for summary judgment claiming that the nurses acted within the medical standard of care and did not cause injury to the minor.

There is a triable issue of fact; Plaintiff has submitted evidence contradicting the Defendants’ expert declaration. Plaintiff presents the expert declaration of John Zee, M.D., board certified in obstetrics and gynecology, contradicting the moving party’s expert declaration. This counter declaration requires the denial of summary judgment (Sesma v. Cueto (1982) 129 Cal.App.3d 108, superceded on other grounds).

The moving party bears the burden of persuasion and the initial burden of proof: [F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Emphasis added.) (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Here the Plaintiff has now contradicted the Defendants’ expert declaration; the Defendant has failed to carry its burden of persuasion. (See Part 2 of 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 a personal injury case 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 was exactly this type of NIED claim that led to the Supreme Court’s unanimous opinion in Bird v. Saenz (2000) 28 Cal.4th 910, and bears repeating. There, the Supreme Court acknowledged the crucial point the Court of Appeal had overlooked – lay people, as a general rule, necessarily lack the ability to meaningfully comprehend medical errors when they occur. Being distressed by watching medical care rendered to a loved one is not enough to state a claim:

The Court of Appeal did not explain how a bystander without medical acumen, except in the most extreme case…could meaningfully be aware that a course of treatment is causing injury. In any event, a rule permitting bystanders to sue for NIED on account of unperceived medical errors hidden in a course of treatment cannot be reconciled with Thing’s requirement that the plaintiff be aware of the connection between the injury-producing event and the injury. The Court of Appeal’s rule would, moreover, impose nearly strict liability on health care providers for NIED to bystanders who observe emotionally stressful procedures that turn out in retrospect to have involved negligence. We may reject such a rule as inconsistent with Thing.

Thus, allowing the father to amend is futile, because he could not possibly have witnessed or meaningfully comprehended the transmission of a latent bacterial infection from mother to child during birth. The only way he could have known about the infection is to be told about it after the fact. The demurrer to his NIED claim should be sustained without leave to amend.

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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 a personal injury case 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.)

PLAINTIFFS’ DIRECT VICTIM THEORY WAS AN AFTERTHOUGHT, NOT SUPPORTED BY THE PRESENT ALLEGATIONS.

It bears repeating that the parents’ status as “direct victims” was not pled, either directly or by reasonable inference. The only theory postulated by the parents to support their NIED recovery is based upon bystander status.) In order to pursue any direct victim claim they first have to plead it, which they did not do. The demurrer should be sustained on that basis.

THE FATHER CANNOT STATE A RIGHT TO RECOVER AS A DIRECT VICTIM AS A MATTER OF LAW, BECAUSE HE IS NOT A PATIENT.

The plaintiff-parents cite Burgess v. Superior Court (1992) 2 Cal.4th 1064 and Zavala v. Arce (1997) 58 Cal.App.4th 915 as support for their status as direct victims. Assuming leave to amend is granted, because the plaintiff-mother was a patient of Dr. Brown, she may qualify under Burgess as a direct victim; however, the father cannot possibly qualify.

So-called “Burgess” NIED recovery stemming from birth injury to a child is allowed only for the mother. This is because both mother and fetus are owed a duty of care, as both are the obstetrician’s patients. No case has allowed a father to recover as a direct victim for injuries to a child during birth, because he is not a patient. Rather, in order for a father to sue for NIED based upon birth injury to a child, he must satisfy the bystander criteria.

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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 a personal injury case 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.)

In the absence of an express contract warranting a specific result, lawsuits against physicians resulting from negligent treatment are not based in contract, but in tort. Ibid; Custodio v. Bauer (1997) 251 Cal.App.2d 303; Schwartz v. Regents of the University of California (1990) 226 Cal.App.3d 129-father denied recovery for emotional distress as the alleged direct victim of a psychotherapist even though he participated in counseling sessions to improve the family relationship. The court also held that the simple existence of a contract between a parent and a medical caregiver to provide medical treatment for a child is not in itself sufficient to impose on the caregiver a duty of care owed to the parent. (Id. at 168.)
This was confirmed nearly forty years ago:
It is thoroughly settled in California that In the absence of an express contract the physician or surgeon does not warrant cures. By taking a case he represents that he possesses the ordinary training and skill possessed by physicians and surgeons practicing in the same or similar communities, and that he will employ such training, care, and skill in the treatment of his patients. In the absence of an expressed contract the general rule is applicable that those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.’ Custodio v. Bauer, supra, at 314-315
Any doubt about the parents inability to qualify as direct victims stemming from a contract is resolved by our Supreme Court in Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124. There the appellate court reversed a summary judgment granted to the defendant-pharmacy against the parents of an infant injured by medication the parents administered to him, based upon the pharmacist’s erroneous directions to the parents who, unwittingly, administered five times the appropriate medication dose.

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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 brain injury/personal injury case and its proceedings.)

LIABILITY

BROWN CAUSED THE COLLISION BY DRIVING THROUGH A SOLID RED LIGHT IN VIOLATION OF VEHICLE CODE § 21453(a).

This is a case of clear liability on the part of Defendant Brown and his employer California Gas Company. The California Highway Patrol confirmed Brown caused the collision, and violated section 21453(a) of the California Vehicle Code for running the solid red signal. Calif. Vehicle Code § 21453 (a): A driver facing a steady circular red signal alone shall stop at a marked limit line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection, and shall remain stopped until an indication to proceed is shown, except as provided in subdivision (b).

Investigating Officer Andy Williams: The conclusion that I came to was that Mr. Brown had drove through a steady circular red light and that Miss Martin had a green turn arrow, and she was broadsided while making her left turn.

In his deposition, Dan Brown admitted that he did not look at the light prior to entering the intersection and that he did not brake prior to impact with the Martins’ vehicle:

Q: On the date of the collision, as you approached White Road did you see the light turn red?
A: No.
Q: Did you see the light turn yellow?
A: No.
Q: Was the light green as you went through the intersection?
A: I did not see the light.
Q: Did you look at the light as you went through the intersection?
A: If I didn’t see it, I don’t think I looked at it.

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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 a personal injury case 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.)

REPLY OF DEFENDANT KENNETH BROWN, M.D., TO PLAINTIFFS’ OPPOSITION TO DEMURRER

This medical malpractice case involves allegations that the defendants negligently provided medical treatment causing the transmission of the bacteria Group B streptococcus to pass to [the minor-plaintiff] during birth.

The plaintiff-parents now deny they tried to allege a negligen infliction of emotional distress (NIED) cause of action based upon a bystander theory, though the allegations clearly demonstrate that was their intent. Rather, the plaintiff-parents argue that they stated a right to recover for NIED based upon a contractual direct victim duty. They have pleaded no direct victim claim, directly or by reasonable inference. The demurrer should be sustained, and as to the father, without leave to amend.

NO DUTY TO THE PARENTS CAN BE PREMISED UPON CONTRACT.
Plaintiffs cannot circumvent the body of law pertaining to parasitic NIED claims, by a bare allegation that their claim arises out of a duty imposed by a so-called contract. Plaintiffs argue that a contractual relationship was pled at paragraph 11 of their complaint, though review of those allegations seems to demonstrate otherwise. Even had plaintiffs plead the existence of a contract, the result is still the same, no tort duty can be premised thereon.

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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.)

In Zavala v. Arce. 58 Cal.App.4th 915, 68 Cal.Rptr.2d 571 (4th Dist. 1997) an individual brought a medical malpractice action against her former obstetrician arising from the in utero death of plaintiff’s post-term fetus, seeking emotional distress damages on a “direct victim” theory of liability. The trial court granted summary judgment for defendant.

The Court of Appeal reversed the judgment and remanded the case to the trial court for further proceedings. The court held that the trial court, in granting summary judgment for defendant, erred in ruling as a matter of law that plaintiff could not state a claim for direct victim emotional distress damages. Because a pregnant woman who experiences negligent antenatal care is no bystander but a “direct victim” instead, the strictures of Thing v. La Chusa do not apply, and she may sue for her emotional distress even if she did not realize, while it was going on, that her doctor was acting negligently.

CONCLUSION
The plaintiffs cause of action is based on a direct victim rationale and not a bystander theory. The limitations asserted in Thing v. La Chusa are not applicable as for they only deal with actions asserted under a bystander theory. The plaintiffs pleadings are sufficient and the court should overrule the defendants’ demurrer.

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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 plaintiffs allege in paragraph 11 of their complaint that a contractual relationship existed between “plaintiffs and said defendants.” Further, in paragraph 14 of the complaint it is alleged that the defendants negligently cared for plaintiff causing injury. Therefore a cause of action for medical negligence was pleaded for the plaintiff-parents due to the birth injury.

In Burgess v. Superior Court. 2 Cal.4th 1064, 1073, 9 Cal.Rptr.2d 615, 618, P.2d 1197 (1992) A mother filed a medical malpractice action against an obstetrician and a hospital after her child suffered permanent brain and nervous system damage, allegedly as a result of oxygen deprivation during the delivery. Defendants brought a motion for summary adjudication that the mother was not entitled to recover damages for emotional distress, since she did not contemporaneously observe the baby’s injury as required for recovery in a bystander situation. The trial court granted defendants’ motion. The Court of Appeal, granted the mother’s petition for a writ of mandate to vacate the trial court’s order, concluding that the mother was a “direct victim” rather than a bystander.

The Supreme Court modified the judgment of the Court of Appeal to direct the trial court, in addition to reversing its order of summary adjudication, to enter an order in accordance with the views expressed in the Supreme Court’s opinion. The court held that the negligent causing of emotional distress is not an independent tort, but the tort of negligence, with the traditional elements of duty, breach of duty, causation, and damages. The court also held that in contrast to bystander cases in which a plaintiff seeks to recover for emotional distress caused by being a percipient witness to the injury of another, “direct victim” cases are those in which damages for serious emotional distress are sought as a result of a breach of duty owed to the plaintiff arising from a preexisting relationship between the plaintiff and the defendant. Inasmuch as the obstetrician owed a duty of care to the mother to avoid injuring her child, which arose from their physician-patient relationship, the obstetrician’s alleged negligence breached a duty of care owed to the mother.

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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’ MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO DEFENDANTS’ DEMURRER
INTRODUCTION

This is a medical malpractice action brought by plaintiffs Donna Smith and Peter Smith, the parents of their infant child Amanda Smith for medical malpractice arising out of the delivery and birth of Amanda. The negligence occurred as a result of the delivering doctor, Kenneth Brown, M.D. and Universal Hospital failure to administer antibiotics prior to delivery knowing that mother, Donna Smith was Group B Strep Positive. As a result of this negligence the virus was passed to the child and resulted in sepsis which required the child to be admitted to Neonatal Intensive Care Unit for 6 days.

The Plaintiffs filed a complaint for medical negligence and negligent infliction of emotional distress with this court on August 12, 2004. The Defendant Universal Hospital provided an answer on October 1, 2004. The Defendant Kenneth Brown, M.D., has responded with this demurrer claiming the parents Peter Smith and Donna Smith do not fit the criteria to recovery as under the bystander theory . Specifically the demurrer is based on the plaintiff-parents failure to satisfy the second prong of the three part test established in Thing v. La Chusa (1989) 48 Cal.3d 644.

PLAINTIFFS’ ACTION IS PREMISED ON A DIRECT VICTIM RATIONALE AND NOT BASED ON A BYSTANDER THEORY
Plaintiff-parents Peter Smith and Donna Smith assert that their right to bring a negligence action on a contractual direct victim rationale and not based on a bystander theory. A physician-patient contract existed between the parents and the defendant obstetrician with an end and aim of the birth of a healthy child and a normal reproductive experience for the parents.

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