Articles Posted in Birth Injury

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

The court had no adequate basis for a new trial order, conditional or otherwise. (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 906.) We do not construe the juror declarations taken as a whole to show an express or implied agreement by the jury to inflate the verdict to include attorney fees. After examining the record, we conclude a new trial was not required as a matter of law because of alleged jury misconduct or anything else.

Under like circumstances the court in Moore v. Preventive Medicine Medical Group, Inc., (1986) 178 Cal.App.3d 728 [223 Cal.Rptr. 859] affirmed the denial of a new trial for jury misconduct. In Moore, two juror declarations were introduced to show a discussion among the jurors regarding the plaintiff’s probable contingency fee obligation to his attorney. Distinguishing Krouse v. Graham (1977) 19 Cal.3d 59 [137 Cal.Rptr. 863, 562 P.2d 1022], the court found the declarations insufficient to establish [a]n express agreement by the jurors to include such fees in their verdict, or extensive discussion evidencing an implied agreement to the effect. [Citations.]…. The declarants do not suggest an express agreement was reached and the discussion they relate could hardly be characterized as extensive, (Moore, supra, 178 Cal.App.3d at pp. 740-741, fn. Omitted.) Thompson v. Friendly Hills Medical Center, (1999) 71 Cal.4th 544, 548.

The main thrust of moving parties’ argument seems to be juror discussion about money. Discussions about the appropriate size of Mrs. Brown’s award and how it might be spent is simply not juror misconduct. The moving party has not cited a single authority to suggest otherwise. There is no evidence in the declarations that any juror awarded Mrs. Brown compensation not supported by evidence.

As discussed in the authorities cited above, it is acknowledged that these types of discussions are part of the give and take of the jury’s secret deliberation process.

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

II BURGESS: A MOTHER’S EMOTIONAL DISTRESS ACTION FOR INJURY TO HER CHILD IS NOT SUBSUMED INTO HER NEGLIGENCE CAUSE OF ACTION

The seminal case allowing a mother to assert direct victim emotional distress for injury to her child during birth is Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1072. Under Burgess, there are two reasons why the mother’s direct victim emotional distress is not subsumed by her separate negligence personal injury cause of action: (1) Burgess’s own language found the mother could allege emotional distress irrespective of whether she alleged personal injury; and, (2) Burgess recognized the obstetrician had a duty directly to the mother not to injure her child, which is distinct from a duty not to injure the mother directly.

A. BURGESS: THE SUPREME COURT IN BURGESS RECOGNIZED DIRECT VICTIM EMOTIONAL DISTRESS FOR THE MOTHER INDEPENDENT OF ANY PERSONAL INJURY ACTION

The Supreme Court in Burgess held the mother in a case of obstetrical negligence can recover for emotional distress for injury to her child – as opposed a separate injury to the mother. A reading of Burgess shows the mother’s emotional distress for the child’s injury is not subsumed by a mother’s separate personal injury action. Indeed, the Supreme Court specifically held that physical injury is not part of the direct victim analysis.

Burgess is similar to the present case. In Burgess, the defendant obstetrician delivered an injured child who subsequently died: Joseph died during the course of the litigation, allegedly as the result of his injuries. A wrongful death action was subsequently filed by Burgess [the mother] and was consolidated with the original malpractice action. (Burgess, supra, 2 Cal.4th at p. 1070-1071.) Consequently, Burgess included both a malpractice claim and a wrongful death claim.

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

Our power over excessive damages exists only when the facts are such that the excess appears as a matter of law, or is such as to suggest at first blush, passion, prejudice, or corruption on the part of the jury, (citations omitted.) Practically, the trial court must bear the whole responsibility in every case. (Bond v. United Railroads (1911) 159 Cal. 270, 286 [113 P. 366].)

The trial judge had an opportunity to review the evidence in this case at the time of the hearing on the motion for new trial. We have also independently reviewed the evidence.

The mere fact that the judgment is large does not validate an appellant’s claim that the verdict is the result of passion or prejudice of the jury. Each case must be determined on its own facts. It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive or grossly inadequate general damages. (Daggett v. Atchison. T. & S.F. Ry. Co., (1957) 48 Cal.2d 655, 666 [313 P.2d 557, 64 A.L.R.2d 1283].)

That result which requires reversal should clearly appear from the record. We are unable to say, as a matter of law, that the judgment in this case is so excessive as to warrant us in interfering with the finding of the jury. Di Rosario, Id. @ 1239.

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

Plaintiffs’ Trial Brief: The Mother’s Emotional Distress Action is not Subsumed by Other Actions Nor Does the Mother Have to Show Contemporaneous Observation of the Birth Injury Itself
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION

This is a medical negligence action wherein the minor Plaintiff, KYLIE JAMES, suffered severe birth injuries. The Complaint alleges that the minor suffered damages because of medical negligence. The Complaint also alleges a separate cause of action by the mother, OLIVIA JAMES, for negligence in her treatment. In addition, OLIVIA alleges a cause of action for negligent infliction of emotional distress (NIED) pursuant to Burgess v. Superior Court (Gupta) (1992) 2 Cal. 4th 1064.

1. The mother’s action for NIED is not subsumed by other actions. The defense may assert that the mother’s direct victim emotional distress cause of action under Burgess is subsumed or erased by her separate action for personal injuries. The defense may assert that an obstetrical patient cannot claim a cause of action for negligence separate and distinct from her emotional distress cause of action under the Supreme Court case of Burgess. If a mother’s direct victim emotional distress action is subsumed by her personal injury action, then the mother’s direct victim emotional distress is effectively eliminated for a mother who is involved with obstetrical negligence, has an injured child, and in the process is injured herself. Contrary to what the defense may claim, a mother has a separate action for 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.)

2. The mother does not have to show contemporaneouss observation under Thing. Contrary to what the defense may claim at trial, under Burgess, the mother is not required to prove that she was contemporaneously aware of a negligent act and harm to her child.

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

Defendant urges that we adopt what amounts to a rigid rule that prejudicial misconduct cannot be cured either by jury self-admonition or by admonitions from the trial court. Such a contention ignores the very purpose of permitting and requiring jury deliberations: through group discussion of the law and the evidence, our common law system trusts that jurors who express wrong ideas about the evidence, the law, and their duty as jurors will be guided to a correct view of the case. In the absence of an opportunity for jurors to express such wrong conceptions and thereafter change their thinking, a jury trial might just as well conclude with the submission of ballots from the jury box at the close of the case.
Romo v. Ford Motor Co., (2002) 99 Cal. App. 4th 1115, 1130.

Plaintiff asserts two additional instances of alleged jury misconduct. The first of these rests upon a discussion by jurors of the source of money to pay a potential judgment. Plaintiff suggests that discussion of where the money for the judgment was to come from was somehow tied to the jury’s impression that defendant was a nice guy. Hence, plaintiff suggests the jury declined to find defendant liable because if was concerned about the financial impact a verdict would have upon him.

Looking to the affidavits we find the following references: Juror Smith states that one juror asked where the money would come from if the verdict was in favor of the plaintiff, whereupon several of the jurors discussed this subject; Juror Michela states that some of the jurors wondered where the money was going to come from if the jury found in favor of the plaintiff; Michela notes, in a separate paragraph that one male juror… said that David Brunicardi was a nice guy. Other jurors agreed with this statement. We find nothing in these affidavits which is sufficient to establish a bias in favor of defendant or to cause the jury to avoid imposing the financial burden on a judgment upon him. Young v. Brunicardi, (1986) 187 Cal. 3d 1344, 1352.

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

PLAINTIFFS’ OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION

This is a medical malpractice action arising out of a birth injury suffered by the minor, DONALD WHITE. The Complaint alleges that the minor suffered severe and profound damages because of medical negligence at or about the time of birth. For this pregnancy, AMBER WHITE at about 33wks gestation, felt decreased fetal movement; an ultrasound was done found she had excess fluid around the baby and they began doing tests. She was referred to a perinatologist at ABC Medical Center for high-contrast ultrasound. He diagnosed the baby with micrognathia of the lower jaw. He said it was a singular symptom, and that it was not a genetic factor. He recommended the parents deliver at GENERAL HOSPITAL because they would have a higher level of care.

The doctors at GENERAL HOSPITAL assured the parents that the baby would be fine; that the most important part of the delivery was making sure she could breathe once the umbilical cord was cut and then she would have plastic surgery to correct the chin. AMBER WHITE began having pre-term labor which was controlled by medication; her physicians wanted her to get as far as possible. At 37 weeks she began having contractions again; she and her husband, DAVID WHITE went to do pre-admission at GENERAL HOSPITAL on August 2, 2003; they met with the ICU team at that time who assured them that everything would be in place when she went into labor and that an ear, nose, and throat (ENT) surgeon would be there to do a trachea at birth.

On August 6, 2003, AMBER WHITE went to labor and delivery at 3:00 p.m. with contractions, 100% effaced, and 5cm dilated. The monitors were put on and they planned a vaginal delivery. Sometime that afternoon she was told that they would do a c-section because the baby was turned sideways. The c-section was not an emergency; when she was taken to OR, the mother kept asking if the necessary doctors were present, and the parents were assured that everyone was present and were ready for the baby. The baby was born by c-section at 8:15 p.m.; the doctor who was supposed to do the trachea was not present. The baby was bagged but couldn’t be intubated because his throat was not large enough.

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

Faced with the twin facts that jurors are allowed great freedom in their conduct of deliberations and that a court can never know exactly what influences resulted in a particular verdict, our judicial system has established certain presumptions for reviewing allegations of juror misconduct. Jurors ordinarily are presumed to have followed the court’s instructions. (People v. Sanchez, (2001) 26 Cal. 4th 834, 852, (111 Cal. Rptr. 2d 129, 29 P. 3d 209]; Craddock v. Kmart Corp., (2001) 89 Cal. App. 4th 1300, 1308, [107 Cal. Rptr. 2d 881].) The California Supreme Court has consistently stated that on appeal, [w]e must of course, presume that the jury followed [the trial court’s] instructions… People v. Chavez, (1958) 50 Cal. 2d 778, 790, [329 P.2d 907].)… In the absence of evidence to the contrary, the presumption [that the jury adhered to the limiting instructions] will control. (People v. Beach, (1983) 147 Cal. App. 3d 612, 625, (195 Cal. Rptr. 3811.) (People v. Zack, (1986) 184 Cal. App. 3d 409, 416, [229 Cal. Rptr. 317].)

On the other hand, [j]uror misconduct such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. (People v. Nesler, supra, 16 Cal. 4th at p. 578.) To succeed [on a claim of jury misconduct, a party] must show misconduct on the part of a juror; if he does, prejudice is presumed; [the opposing party] must then rebut the presumption or lose the verdict. (People v. Marshall, supra, 50 Cal. 3d at p. 949.)

The presumption of prejudice in a civil case is rebutted if the reviewing court reaches one of three conclusions: (1) the record establishes the absence of prejudice; (2) a review of the entire record shows there is no reasonable probability of actual harm to the complaining party under the constitutional standard of People v. Watson, (1956) 46 Cal. 2d 818, 836, [299 P.2d 243]. (See Hasson v. Ford Motor Co., (1982) 32 Cal. 3d 388, 416-417, [185 Cal. Rptr. 654, 650 P. 2d 1171]: McDonald v. Southern Pacific Transportation Co., (1999) 71 Cal. App. 4th 256, 265, [83 Cal. Rptr. 2d 7341); or (3), in the case of possible actual bias of a juror whose vote may have been determinative of the verdict there is no substantial likelihood that at least one juror was impermissibly influenced.

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

The Complaint alleges a number of causes of action beside negligence regarding the child including a separate cause of action for the father, DAVID WHITE, for bystander emotional distress pursuant to Thing v. LaChusa (1989) 48 Cal.3d 644.

The hospital, GENERAL HOSPITAL and various physicians have now filed a motion for summary adjudication on the father’s bystander emotional distress action.

Contrary to the motion, the father does not have to be aware of medical negligence to allege bystander emotional distress – he directly viewed the injury. The father saw the injured minor while the minor was suffering from a continuing injury a continuing lack of oxygen. The motion for summary adjudication is absolutely wrong; the father need not be aware of medical negligence – or internal physiological processes – to witness the incident. What the Supreme Court required was that the father be present at the scene of the injury-producing. event at the time it occurs and is then aware that it is causing injury to the victim … (Emphasis added.) (Thing, 48 Cal.3d at p. 667-668.) The father does not have to be a medical expert and determine that there was medical negligence. The Supreme Court was clear: [W]e by no means suggest… that plaintiff must be aware of the tortuous nature of defendant’s actions … [Such requirement would lead to the anomalous result that a mother who viewer her child being struck by a car could not recover because she did not realize that the driver was intoxicated. (Emphasis added.) (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 170.)

All that is necessary is that the father be present for the injury-producing event and then know there is an injury: [W]e conclude it is not necessary that a plaintiff bystander actually have witnessed the infliction of injury to her child, provided that the plaintiff was at the scene of the accident and was sensorially aware, in some important way, of the accident and the necessarily inflicted injury to her child. (Emphasis added.) (Wilks v. Hor (1992) 2 Cal.App.4th 264, 1271.) Here, the father was aware – in some important way – of the injury to the minor.

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

Interestingly, there is little decisional law on the question of what is proper discussion among jurors during deliberations, and the few cases are quite ancient. In Baker v. Borello, (1902) 136 Cal. 160, the California Supreme Court approved an instruction which told the jurors to deliberate in light of their general knowledge on the subject. Jurors, in weighing evidence, always exercise their judgment in the light of their own general knowledge of the subject in hand, whether instructed to do so or not; and a judgment will not be reversed whether they are or are not so instructed. Wagner v. Doulton, (1980) 112 Cal. App. 3d 945, 949 [169 Cal. Rptr. 550].

The court in Wagner concluded: We believe the appropriate rule has been well articulated by an opinion of a sister state: In determining what is proper and what is improper discussion among jurors, regard must be had for the fact that the jury are supposedly men (and women] of different walks of life, avocations, and necessarily views that would be affected by their past experiences and situations. They could hardly arrive at a solution of their differences without discussion of the facts before them, and each man’s discussion would necessarily be tinged or affected by his own viewpoint and experience. Frazer v. State, (1924) 99 Tex. Grim. 89, (112 Cal. App. 3d at p. 950.); English v. Linn, (1994) 26 Cal. 4th 1358, 1364

Jury deliberations are secret while they are occurring. No verbatim transcript or other record of the deliberations normally exists. Declarations seeking to reconstruct deliberations after the fact may be colored by the jurors’ natural inclination to protect or attack the process that resulted in the verdict depending on whether the juror agreed or disagreed with the verdict. (See Weathers v. Kaiser Foundation Hospitals, (1971) 5 Cal. 3d 98, 108-109, [95 Cal. Rptr. 516 485, P.2d 1132].) Yet, the parties’ right to a jury trial is one of constitutional dimension, and we give great deference to a verdict issued by a properly instructed jury – in the normal case, without any inquiry whatsoever into the processes used to reach that verdict. Even when there are allegations of jury misconduct evidence of the jurors’ mental processes is, with narrow exceptions, excluded from consideration of the right to a new trial. (In re Hamilton, supra, 20 Cal. 4th at pp. 294-295.)

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

Alexandra BROWN., a minor by and through her guardian ad litem, Winona Brown; Winona Brown; Sean Brown., Plaintiffs, v. Linda X., M.D., Linda X., M.D., Inc., General Medical Center, a Corporation, and Does 1 through 250, inclusive, Defendants.

March 2005.

Plaintiffs’ Opposition to Defendants’ Motion for New Trial (Medical Malpractice/Birth Injury)

TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES
I. THE IRREGULARITY IN THE PROCEEDINGS – JURY AFFIDAVITS
II. THE ISSUE OF INFORMED CONSENT
III. THE ISSUE OF VERDICT BASED ON INSUFFICIENT EVIDENCE
IV. DAMAGES
V. CONCLUSION
MEMORANDUM OF POINTS AND AUTHORITIES

On December 8, 2004 the jury rendered a verdict in plaintiffs’ favor. As set forth below the verdict is supported by substantial evidence and law. On or about January 3, 2005 the Court entered judgment on the verdict.

Plaintiffs will address each issue raised by the defendants in the order in which they were advanced in the Motion for New Trial.

THE IRREGULARITY IN THE PROCEEDINGS – JURY AFFIDAVITS

The four juror declarations submitted by the defendant are replete with discussions about the juror mental processes. The Evidence Code states in unequivocal terms that such evidence is inadmissible.

(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct; condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

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