Articles Posted in Birth Injury

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

IV THE MOTHER DOES NOT HAVE TO SHOW CONTEMPORANEOUS OBSERVATION OF HER CHILD’S BIRTH INJURY TO CLAIM EMOTIONAL DISTRESS AS A DIRECT VICTIM
The plaintiff mother does not have to show contemporaneous observation of a bystander under Thing v. La Chusa (1989) 48 Cal.3d 644, to claim emotional distress from injury to her child because the mother is a direct victim.
A. Because Gupta Owed a Preexisting Duty of Care to Burgess, the Criteria for Recovery of Negligent Emotional Distress Enunciated in Thing Are Not Controlling in This Case.

In contrast [to bystander], the label direct victim arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law or that arises out of a relationship between the two. [Citation omitted.] In these cases, the limits set forth in Thing, supra, … have no direct application. [Citations omitted.] Rather, the well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case. (Emphasis and brackets added.) (Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1064, 1072-1073.)

Consequently, the elements of emotional distress for the plaintiff mother are the elements of negligence: We have repeatedly recognized the [t]he 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. (Id. at p. 1072.)

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

Plaintiff’s Settlement Conference Brief

BRIEF SUMMARY OF THE CASE:

This action for malpractice involves severe birth-related brain injuries to Martha Cruz, born XX/XX/2002, at Regional Medical Center in West Sacramento. Briefly, Martha’s mother, Patricia Cruz, was seen for prenatal care by OB/GYN, Gregory U., MD. The pregnancy was uneventful except for gestational diabetes and some elevated blood pressures, neither of which caused or contributed to the infant’s injuries in this case.

Ms. Cruz arrived in Labor & Delivery (L&D) at Regional Medical Center at 8:57 am on Saturday, October 5, 2002, complaining of abdominal pain. A fetal monitor was placed immediately. Nursing documented a non-reassuring fetal heart rate (FHR) and a uterine contraction pattern described as very irritable . At 9:10 am, Ms. Cruz signed a consent for Cesarean delivery. At 9:15 am, nursing first contacted Dr. U. by telephone. At that time, he advised that the patient be admitted for an emergency Cesarean section . As October 5 was a Saturday, an on-call operating room (OR) crew, including anesthesiologist, Sandy Y., MD, assistant surgeon, Michael V., MD, scrub nurse, Robert A., circulating nurse, Elaine B., RN, and pediatrician, Susan W., MD, were contacted for Ms. Cruz’ delivery. At the time of Dr. U.’s arrival in L&D, she confirmed the need for an emergency Cesarean section. At the time, there was a scheduled surgery on another patient for removal of a hysterectomy occurring in OR #1.

At Regional Medical Center, all Cesarean sections were conducted in the main hospital OR, one floor below L&D in the
basement. Dr. U. testified that she expected the surgery to occur within 30 minutes of her order. At approximately 10:00 am, Dr. U. left L&D and went downstairs to the main OR to determine whether the OR crew had arrived yet.
Either before she went to the OR or immediately after her arrival in the OR, Dr. U. was informed that there was a breech
patient at high risk that required an emergency Cesarean section, though the patient was not Dr. U.’s patient.

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

The Third District cited the Second District case of Zambrano v. Dorough (1986) 179 Cal.App.3d 169, a medical negligence case wherein the plaintiff asserted the defendant physician’s negligent misdiagnosis caused her hysterectomy; she also asserted emotional distress.

The Third District drew a distinction between the medical negligence action and found the emotional distress based upon a different allegation that the physician refused to treat her:

We are likewise convinced that Zambrano should be permitted to proceed against Dorough for the loss of her reproductive capacity. That injury is of a different type than the emotional distress she allegedly suffered from Dorough’s refusal to treat her and the pain and suffering and out of pocket losses allegedly accompanying the negligent misdiagnosis. The cause of action is based upon the injury to the plaintiff … [ ] If the complaint alleges violation of a different primary right, it states a different cause of action. (4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 25, p. 69.) (Emphasis added.) (Zambrano v. Dorough, supra, 179 Cal.App.3d at p. 174.)

To emphasize the point that the medical negligence action was separate from the emotional distress action, the Second District continued: Zambrano’s right to be free of the transitory damages of discomfort and distress is separate from and independent of her right to have children, a much more serious complication not apparent at the time of the earlier 5 problems. (Id.)

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

III THE DEFENDANTS VIOLATED TWO PRIMARY RIGHTS: (1) ONE INVOLVING INJURY TO THE CHILD AND (2) ONE INVOLVING INJURY TO THE MOTHER; THE MOTHER MAY ASSERT SEPARATE CAUSES OF ACTION FOR EACH VIOLATION OF A PRIMARY RIGHT

The Third District has explained that in tort law, damages flow from violations of primary rights *Skrbina v. Fleming Companies, Inc. (Cal.App. 3 Dist. 1996) 45 Cal.App.4th 1353, 1364.) As noted in the above discussion on Burgess, [a]ny 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. (Emphasis added.) (Burgess, supra, 2 Cal.4th at p. 1076.) And as noted above, the mother also suffered damages from her ruptured uterus. Consequently, the Defendants violated two primary rights ; each violation gives rise to a separate cause of action; the mother has a right now to collect separate damages for each violation.

The Third District explained the distinction between causes of action:
California defines a cause of action in accord with Pomeroy’s primary right theory. [Citation.] A cause of action consists of (1) a primary right possessed by the plaintiff and a corresponding primary duty imposed upon the defendant, and (2) a delict or wrong committed by the defendant which constitutes a breach of such primary right and duty. [Citation.]’ (Miranda v. Shell Oil Co. (1993) 17 Cal.App.4th 1651, 1658, 26 Cal.Rptr.2d 655; 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 23, pp. 66-67.)
The cause of action is based on the injury to the plaintiff, not on the legal theory or theories advanced to characterize it. (Emphasis added.) (Skrbina v. Fleming Companies, Inc., supra, 45 Cal.App.4th at p. 1364.) Here the mother suffered two injuries: (1) emotional distress because of injury to her child pursuant to Burgess and (2) physical injury because of her own injuries (Civil Code, § 1714).

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

DAMAGES

As to Alexandra, the damage to his body speaks for itself. Plaintiffs presented substantial and credible evidence on this issue with the testimony of Dr. Peter W., Dr. Nathaniel T., Dr. Paul U., and Dr. Marilyn S.. All testified to the nature and extent of the severe and permanent injuries suffered by Alexandra, and Dr. W. testified to those things that Alexandra will need in the future by way of the life care plan.

Plaintiffs additionally presented substantial and credible evidence with Dr. David R. and Mr. Anastos concerning the nature and extent of Alexandra’s disability as it related to his ability to work and the economic impact of that disability.

The jury obviously carefully considered the plaintiffs’ expert witness testimony and the defense expert witness testimony and reached a compromise on the economic damages suffered by Alexandra. The award was reasonable and in line with the substantial and credible evidence produced by plaintiffs.

As to general damages, it was the jury’s judgment that Mrs. Brown suffered $1,000,000.00 in general damages being witness to the injuries suffered by her child at birth and dealing with those injuries and their sequela.

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

THE ISSUE OF VERDICT BASED ON INSUFFICIENT EVIDENCE

The Defendants’ Memorandum of Points and Authorities in Support of Motion for New Trial contends that there was insufficient evidence to support the jury’s verdict in favor of plaintiffs. Defendants’ motion is based upon little more than argument of counsel and not the evidence considered by the jury in this matter. This alone is reason to deny defendants’ motion. However, as this court is well aware, the evidence introduced at trial is more than sufficient to support the jury’s verdict.

California Code of Civil Procedure, Section 657 states, in part:

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences there from, that the court or jury clearly should have reached a different verdict or decision.

In deciding a motion for new trial based upon insufficiency of the evidence, the court’s function is to determine whether…there is sufficient credible evidence to support the verdict. Zurian v. Wahl Shoe Company, Inc., (1994) 22 Cal. 4th 397, citing People v. Robarge, (1953) 41 Cal. 2d 628, 633.

In ruling on a motion for new trial based upon insufficiency of the evidence, the trial court should not disregard the verdict or decide what results should have been reached if the case had been tried without a jury. Dominguez v. Pantalone, (1989) 212 Cal.App.3d 201, 215.

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

Thus, … the failure by Burgess to satisfy the criteria for recovery under Thing, … does not end the inquiry. The alleged negligent actions resulting in physical harm to Joseph [the minor] breached a duty owed to both Joseph and Burgess. Burgess was unavoidably and unquestionably harmed by this negligent conduct. (Emphasis and brackets added.) (Burgess, supra, 2 Cal.4th at p. 1076-1077.)

The above analysis was recently affirmed in Zavala v. Arce (1997) 58 Cal.App.4th 915, decided October 27, 1997. In Zavala, the fetus was stillborn; yet, the mother could still allege her own action for direct victim emotional distress. Zavala cited Burgess were the baby was born alive – as in the present case – and died after birth; in both circumstances, the mother can allege emotional distress: Our Supreme Court has held in a factually similar case that when an obstetrician and a pregnant woman enter into a physician-patient relationship … the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. (Zavala, supra, 58 Cal.App. 4th at p. 928.)

Whether the baby survives birth or dies after is immaterial to the emotional distress claim of the mother:
The fact that the baby in Burgess survived the injuries caused by the obstetric negligence during delivery was immaterial to the determination of whether the obstetrician owed a duty of care to the mother. The Supreme Court in Burgess reasoned that … the obstetrician and the pregnant woman [who] enter into a physician-patient relationship … understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus, and [a]ny emotional anguish to the mother, therefore breaches a duty owed directly to the mother. (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1076.) (Emotional distress.) (Zavala, supra, 58 Cal.App. 4th at p. 930.)

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

THE ISSUE OF INFORMED CONSENT

The defendant says that there is virtually no testimony on the issue of informed consent except Dr. Linda X.’s testimony that she failed to obtain the patient’s informed consent to use the vacuum. What more is needed?

Although the plaintiff was precluded from offering testimony that she would not have consented to the vacuum’s use had the risks and benefits been properly explained, there appears to be abundant testimony from the defendant himself to submit this theory of liability to the jury for its consideration. The Court is well aware no expert witness testimony is required on the issue of informed consent. Ardto v. Avedon, (1993) 5 Cal. 4th 1172.

Furthermore, the Court will recall that plaintiffs presented three distinct theories of liability against Dr. Linda X. (1) Her negligence caused the medical emergency; (2) She was negligent in management of the medical emergency; and (3) She failed to obtain Mrs. Brown’s informed consent to employ the vacuum device at mid-pelvis.

Because of the multiple theories of negligence offered by plaintiffs, this jury could have found Dr. Linda X. negligent on any or all of the issues. With multiple contentions of negligence, but no special interrogatory to the jury asking which specific act or acts they deemed negligent, defendant cannot now challenge the jury’s findings. They may have found her not negligent on the informed consent issue. We will never know.

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

B. BURGESS: THE SUPREME COURT IN BURGESS RECOGNIZED THE OBSTETRICIAN OWES A SEPARATE DUTY TO A MOTHER NOT TO INJURE HER CHILD – DISTINCT FROM THE OBSTETRICIAN’S DUTY NOT TO INJURE THE MOTHER
The medical care providers can breach two duties when they commit negligence resulting in the delivery of an injured child. The first breach of duty can be to the mother if she has suffered damages such as the mother here. Liability for breach of such a duty is set forth in statute: Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want or ordinary care or skill in the management of his property or person, …. (Civil Code, § 1714.) The second breach of duty is the breach of duty resulting in the mother’s emotional distress arising from the abnormal event of participating in a negligent delivery and reacting to the tragic outcome …. (Burgess, supra, 2 Cal.4th at p. 1085.)

Consequently, the mother here was correct to allege two separate and distinct causes of action, one for herself, another for her participation in the abnormal delivery and injury to the child which was delivered. Since the mother here has suffered the breach of two separate duties, she is allowed to allege two separate causes of action.

The Supreme Court expressly held that the health care provider owes a duty to the mother regarding the medical treatment of the fetus. This is a separate and distinct duty apart from the breach of the duty to the mother resulting in the mother’s injury:

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

(Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916). Consequently, direct victim emotional distress does not rely upon physical injury or impact.

And the lack of a requirement for physical injury is a key central aspect of the direct victim analysis. In Molien, the Supreme Court answered in the affirmative the question of whether, in the context of a negligence action, damages may be recovered for serious emotional distress unaccompanied by physical injury. (Burgess, supra, 2 Cal.4th at p. 1073.) To emphasize the point that physical injury is not part of the direct victim analysis, the Supreme Court in Burgess made the point again: physical injury is not a prerequisite for recovering damages for serious emotional distress, especially when as here, there exists a guarantee of genuiness in the circumstances of the case. (Burgess, supra, 2 Cal.4th at p. 1079.) The Supreme Court put its point in a headline: Lack of Physical Injury Does Not Defeat Burgess’s Claim. (Id. at p. 1078.) Physical injury is not connected with the direct victim analysis.

The point here is that the defense argument that the direct victim emotional distress action is subsumed into the mother’s personal injury action is entirely illogical. If the direct victim analysis specifically excludes physical injury, how can the direct victim emotional distress be subsumed into a physical injury action? The physical injury and the emotional distress here are separate and distinct. And the Supreme Court in Burgess makes this distinction.
The Defendants rely upon one comment in Burgess taken out of context: We have repeatedly recognized the [t]he negligent causing of emotional distress is not an independent ort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply. (Id. at p. 1072.) This statement means is that in order to plead direct victim emotional distress, the elements of negligence must be alleged. But Burgess never held that direct victim emotional distress is subsumed into a separate personal injury action. The further language in Burgess clarifies that the direct victim emotional distress it is addressing involves not the mother’s emotional distress from injury to herself but rather the mother’s emotional distress because of injury to the child:

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