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 case and its proceedings.)

Universal Presents No Evidence Whatsoever as to Elam Liability

Universal’s motion asserts that plaintiff has no evidence to support its liability under Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 183 Cal.Rptr. 156, under which a hospital may be held responsible for the negligent conduct of independent physicians who, based on their staff privileges, avail themselves of the hospital’s facilities. Universal presents no evidence that it did anything to assure the competence of physicians practicing there, and thus offers nothing to disprove its liability under the Elam theory. It does not even raise the matter in its Separate Statement.

Elam recognizes, first, that case precedent establishes a hospital has a duty of reasonable care to protect patients from harm .., including the discovery and treatment of their medical conditions. Secondly, Elam holds that as a general principle, a hospital’s failure to insure the competence of its medical staff through careful selection and review creates an unreasonable risk of harm to its patients. (Id. at 340) Reviewing the controlling statutes and regulations, the Court noted that:

Regarding staff selection, although the medical staff is to be self-governing, a hospital must provide procedures for selection and reappointment of the medical staff in accordance with JCAH standards, implying investigation of competency for initial appointment and periodic review of competency before reappointment. The hospital’s duty to guard against physician’s incompetency is further implied by requiring renewal of staff privileges at least every two years (implying a periodic competency review) and the periodic review of the medical records of hospital patients. Although these reviews are conducted by medical staff peer committees, the governing body of the hospital is responsible for establishing the review procedures. Finally, [Health and Safety Code] §32128 provides that the hospital rules shall include [s]uch limitations with respect to the practice of medicine and surgery in the hospital as the board of directors may find to be in the best interests of the public health and welfare… [Id. at 342]
In summary, we hold a hospital is accountable for negligently screening the competency of its medical staff to insure the adequacy of medical care rendered to patients at its facility. (Id. at 346)

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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 case and its proceedings.)

UNIVERSAL FAILS TO CARRY ITS INITIAL BURDEN ON SUMMARY JUDGMENT

On motion for summary judgment, defendant has the burden of producing evidence negating a necessary element of the plaintiff’s case or establishing an affirmative defense. To succeed, a defendant moving for summary judgment must conclusively negate a necessary element of the plaintiffs case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial. Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1190, 260 Cal.Rptr. 49; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 10 Cal.Rptr.2d 748. Defendant must establish that there is no triable issue of fact with respect to any basis for liability under the complaint. United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 338, 282 Cal.Rptr. 368. The defendant has the burden of establishing that there was no room for a reasonable difference of opinion … Rosh v. Cave Imaging Systems. Inc. (1994) 26 Cal.App.4th 1225, 1235, 32 Cal.Rptr.2d 136.

Where the Complaint alleges matters upon which a breach of duty may be based, failure of the moving party to address each factual theory supportable under the Complaint precludes summary judgment. Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 715-716, 52 Cal.Rptr.2d 821; Villa v. McFerren (1995) 35 Cal.App.4th 733, 741-746, 41 Cal.Rptr.2d 719. Where matters on which liability may be based are not conclusively disposed of by the moving papers, the motion must be denied even without opposition. Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830, 20 Cal.Rptr.2d 296.

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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 case and its proceedings.)

C.C.P. §340.5 GOVERNS DELIVERY MALPRACTICE AND EXTENDS THE LIMITATIONS PERIOD TO THE CHILD’S EIGHTH BIRTHDAY

It is firmly established that an infant’s claim for medical malpractice – whether the injury is prior to, contemporaneous with or subsequent to birth – is subject to the limitations period of C.C.P. §340.5, governing medical malpractice actions generally and medical malpractice actions by minors specifically, and that C.C.P. §340.4 has no bearing on such actions.

3 Witkin, Cal. Procedure 4th, Actions §542, discussing prenatal injuries, observes that C.C.P. §340.5, part of the Medical Injury Compensation Reform Act, does not expressly refer to former Civil Code §29 or C.C.P. §340.4, but supplants their period of limitations in medical malpractice actions. (Emphasis in original.) Haning, Flahavan, Kelly, et al., California Practice Guide – Personal Injury (Rutter 2006) §5:138, likewise states:

Neither C.C.P. §352 nor C.C.P. §340.4 applies to minors’ actions predicated on medical malpractice. Even if the claim alleges prenatal injury, the altogether different limitations period contained in C.C.P. §340.5 is controlling. [Young v. Haines (1986) 41 Cal.3d 883, 226 Cal.Rptr. 547; Photias v. Doerfler (1996) 45 Cal.App.4th 1014, 1018-1020, 53 Cal.Rptr.2d 202, 204-205]
Hence, C.C.P. §340.4 governs prenatal injuries from general negligence, products liability, etc., but not medical malpractice. It was enacted to abolish the common law rule that an unborn child has no independent existence and, therefore, no right of action for injuries suffered before its birth, but at a time when there was no distinction in limitations rules between medical malpractice and other negligence claims. Young v. Haines (1986) 41 Cal.3d 883, 892, 226 Cal.Rptr. 547. 5 Witkin, Summary Cal. Law 10th, Torts, §728, pg. 1053. The adoption of MICRA in 1975, with its distinct limitations rules, overrode any role that §340/4 might have had in medical malpractice cases.

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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 case and its proceedings.)

William Taylor describes his wife’s legs as still in the stirrups while she was being instructed to again push, after which the baby’s head popped out all the way to the neck before the shoulders. If a proper McRoberts position had been performed the mother’s legs would have not remained in the stirrups.

Mr. Taylor saw Dr. Y. grab the infant by the head, with her thumb on his forehead and a hand around his neck, and turn him to the left. She was holding her hands outside the body and around the neck area. She did not go inside the vagina. A photograph clearly depicts the infant’s head fully out of the vagina, facing upward, and shows the physician’s hands around the head and necks, fully outside the vagina. This does not depict the Woods maneuver described in the Delivery Notes. The maneuver described by the father, and depicted in the photograph is beneath the standard of care in that it allows excessive rotation of the neck, which can cause the Erb’s Palsy and brachial plexus injury that is described in Sean Taylor’s records. Mr. Taylor saw Dr. X. turn the baby to the left causing a popping sound, leading Mr. Taylor to believe that Sean’s neck may have been broken. Dr. Z. concludes that it is probable that this was the brachial plexus injury leading to the Erb’s Palsy suffered by Sean, caused by excessive force and improper traction on the head and neck during the delivery.

Critical to the hospital’s liability is the fact that the mother was not in the correct McRoberts position, but had her legs in the stirrups. The positioning of the mother for this procedure is the responsibility of the nurses, who assuredly should have recognized that the procedure was no being properly performed, and who assisted in this mangled form of delivery notwithstanding that the problems would have been evident to any obstetrics specialist present.

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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 case and its proceedings.)

Sean’s father, William Taylor, was present in the delivery room and photographed the delivery. His deposition testimony, and his photographs, provide direct evidence that is in direct conflict with the events described by Dr. X. in her delivery notes.

Q. Okay. Did he come out straight, his head, or was he sideways?

A. He came out straight. After she cut and told her to push, then his head came out just like I’m looking up straight up at the ceiling. It came out like that and stopped.

Q. Then what happened after his head came out?

A. She grabbed him by the forehead and put her hands around the neck part.

Q. Then what happened after his head came out?

A. She grabbed him by the forehead and put her hands around the neck part.

Q. You said grabbed him on the forehead?

A. Put her thumb on the forehead, you know, like you grab a football. You would grab a head like this, like — I know you can’t put like this on here (indicating). She grabbed his head and had her thumb on the forehead and had her hand around his neck, and then she turned him.

Q. So one hand, then was on his head; and the other hand was on his neck?

A. Right.

Q. Which hand was on his head?

A. I can’t recall. I think it was the right hand. I think. I’m giving you an estimate.

Q. I don’t want you to guess.

A. Well, I can’t tell you for sure which hand was on his forehead.

Q. You do know that one hand was on his head and one hand was on his neck, correct?

A. That’s right. That’s correct.

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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 case and its proceedings.)

STATEMENT OF THE CASE

This is medical negligence action arises out of serious nerve injury suffered by Sean Taylor during birth on 6/4/1998. Sean’s mother, Edith Taylor, was under the care of obstetrician Dr. Vanessa X. when she was admitted to Sacramento’s Universal Medical Center at 1:15 p.m. on June 3, 1998. Edith Taylor was then in early labor, at almost 41 weeks, based upon an estimated date of confinement of 5/29/98.

Dr. X. ordered induction of labor by Pitocin drip and artificial rupture of Edith’s membrane, which reportedly resulted in the release of clear amniotic fluid. Epidural anesthesia was begun, and labor continued throughout the balance of that day and into the early morning hours of June 4. During that time, the patient was started on antibiotics for a temperature of 101.

At 3:40 a.m. on June 4, Pitocin was discontinued, and at 4:00 a.m. a vaginal examination revealed that the patient was 9 cm dilated and at 1 station. I.V. antibiotics were continued and the mother was instructed to continue pushing to assist in delivery, which occurred at 5:10 a.m.

The Popras 6 form for Delivery Data and Problems lists shoulder dystocia as a birth complication. The one minute Apgar scores were zero score for respirations, muscle tone and color, requiring emergency resuscitation. Erb’s Palsy was noted at birth

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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 case and its proceedings.)

Plaintiffs’ Memorandum of Points and Authorities in Opposition to the Motions for Summary Judgment of Universal Medical Center and Vanessa X., M.D.

INTRODUCTION

Universal’s statute of limitations argument has been clearly and conclusively rejected by the Supreme Court of this state, as well as all relevant decisions of the intermediate courts. An infant’s claim for medical malpractice resulting in birth injuries is governed by C.C.P. §340.5, not §340.4 and may be filed at any time prior to the child’s eighth birthday.

Universal’s contention that there is no evidence supporting its liability under the Elam rule requiring a hospital to assure the competence of physicians and surgeons with staff privileges is unsupported by even the hint of evidence, and the failure to negate such liability means that the
Court is required to deny the motion as to substantive grounds of no liability. The claim that there was no neglect in the provision of medical care is flatly contradicted by percipient and photographic evidence, and the assertion that there was no causal connection between that care and the minor’s injuries is frivolous. This Court so held in denying the motion for summary judgment of Defendant Vanessa X., M.D. on May 15, 2007. This child suffered exactly the injuries that would be expected from the dangerous and improper extraction of the baby in the McRoberts position by twisting his head to extract him from the birth canal.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

3) Dr. X. testified that it took only 2 minutes to provide a surgical level of analgesia with a spinal anesthesia (between 11:08 am and 11:10 am). Plaintiff’s expert anesthesiologist will testify that despite the circumstances here of some elevated blood pressure, some indication of PIH, fetal distress, and an ASA of 2-3:
a) It was below the standard of care for Dr. X. not to provide a rapid sequence general anesthesia (which would have taken 2-3 minutes), and

b) It is impossible that the spinal took only 2 minutes. Instead, such anesthesia would have required at least 7-10 minutes to conduct. If the spinal took longer to take effect than Dr. X. has been willing to admit, the difference in the time it took to complete it, compared with general anesthesia, was a significant factor in this child’s catastrophic birth injury outcome.

DAMAGES:

The reports of plaintiff’s expert pediatric physiatrist, Amy Morris, MD, and the expert pediatric neurologist, Dr. William Samuels, have been provided. Further, the Life Care Plan of Karen Collins, RN, and the economic report of Peter Steiners, Ph..D. have also been provided. Based on the medical condition of Martha Cruz and the level of care required for proper care at home, including a gastrostomy feeding tube and the high probability that she will require a tracheostomy, Plaintiff’s experts have testified that she will require 24-hour LVN care, plus other medical expenses. There is no off-set for Medi-Cal payments now or in the future, under current case law. Based on a markedly reduced, but probable, life expectancy of 30 additional years, the present cash value of her life care plan is $11.5 million per plaintiff’s economist, or $9.2 million per the defendant’s economist. Additionally, there are future loss of earnings in the range of a present cash value of $750,000 to $1,000,000.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Dr. Stuart X.

1) Although Dr. X. testified that he didn’t recall ever seeing Ms. Cruz in L&D on October 5, the L&D nursing notes clearly place him there at 10:32 am. The notes also clearly demonstrate that he was needed in the OR for Ms. Cruz. The notes do not indicate what Dr. X. was told regarding patient status, but assuming he was aware that the patient was in distress, he had an obligation to do whatever was reasonable to insure that the Cesarean section was done as quickly as possible. Dr. X. testified that he did nothing until being instructed by Dr. U.. Given that Dr. X. had been called for Ms. Cruz in L&D and was at her bedside under circumstances in which a CRASH Cesarean section had been called, he had an absolute responsibility to assist in getting a surgeon to operate sooner than Dr. U. became available – which did not occur at least until 10:52 am and probably later. This was particularly so if Dr. X. was the physician identified by Amanda Cruz who claimed to know about surgery ongoing in the main OR and yet refused to have the patient transferred or pursue alternative options to get Ms.Cruz delivered. According to the deposition of Dr. Z., he likely had remained in the main OR until at least 10:40 am (following surgery that ended at 10:25 am).

2) L&D nursing had documented on the fetal monitor tracing at 10:52 am, that Dr. U. had requested general anesthesia but that Dr. X. insisted on a spinal. This tracing never was transferred with the patient to the main OR.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

6) Substandard care to have given Terbutaline at 10:20 am, whether ordered by Dr. U. or not, given the likelihood that the placenta was abrupting (based on irritable uterus, abdominal pain and frequent, small decelerations occurring every minute), as this medication causes a vaso-dilation which aggravated perfusion to the fetus, contributing to ischemia of the fetus. From this point until delivery, the fetus was under increasing fetal distress and hypoxia from decreased placental perfusion.

7) L&D nursing notes indicate that the anesthesiologist was at the patient’s bedside at 10:32 am. At deposition, Dr. X. denied having seen the patient in L&D. Yet, spinal analgesia was not administered until 11:08 am, 36 minutes after the note suggests that the anesthesiologist was at bedside. L&D nursing personnel had an absolute duty to discuss the case with Dr. X., to obtain a surgeon and run the CRASH Cesarean section given circumstances in which they obligated Dr. U. to deliver the breech patient without having informed Dr. D. of his commitments, and having failed to contact other available OB/GYNs to avoid any further delay in the delivery of Ms. Cruz.

8) Failure to properly interpret the fetal monitor tracing at 10:52 am, leading to a reticence on the part of L&D nursing personnel to pursue the Cesarean delivery of Ms. Cruz on a CRASH or STAT basis. In fact, the external monitor demonstrated a doubling of the FHR (as it was known to do when the FHR became exceedingly low) while L&D personnel assumed that the FHR was once again within normal limits. While L&D personnel acted as if the fetus had recovered, the fetus was likely becoming further de-compensated with a baseline of 65-75 bpm at that time, culminating in an absent FHR at 11:07. If, at 10:52 am, L&D nurses informed Dr. X. that the FHR had stabilized with variability in the range of 130-155 bpm” causing him to defer anesthesia or to assume he had the time to administer spinal analgesia, then they fell below the standard of care in the community. Further, there was a failure to actively monitor the fetus following transfer from L&D. Between 10:52 am and 11:10 am, a period of 18 minutes, no fetal monitoring was conducted. During this period, there is a total absence of the mother’s pulse documented in the chart, suggesting that L&D nursing personnel never considered that the apparent change in the fetal heart rate was in fact evidence of the mother’s heart rate instead..

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