Birth Injury

Sacramento Parents Witness Birth Injury Of Child, Part 4 of 8

May 12, 2009 | by Moseley Collins

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

Q. WAS IT YOUR UNDERSTANDING, WHEN YOU WERE TALKING WITH DR. Z. IN THE HALLWAY, THAT THAT PROBLEM OF GOT [SIC] BEING ABLE TO GET DONALD OXYGENATION WAS STILL AN ONGOING PROBLEM?

A. YES.

Q. AND DID YOU HAVE AN UNDERSTANDING THAT WHILE YOU WERE TALKING WITH DR. Z. ABOUT THE FACT THAT THE MEDICAL PROVIDERS STILL COULD NOT PROVIDE PROPER OXYGENATION TO DONALD, AND THAT WAS CAUSING HER A CONTINUING INJURY?

A. YES. (Deposition of David White, at pp. 77:12 – 78:20.)

Q. WAS IT YOUR UNDERSTANDING, WHILE YOU WERE TALKING WITH DR. Z. IN THE HALLWAY, THAT THE CONDUCT OF THE DOCTORS OR THE LACK OF CONDUCT OF THE DOCTORS WHO WERE CARING FOR DONALD IN THAT NICU TRANSITIONAL WAS CONTINUING TO CAUSE INJURY TO DONALD?

A. YES. (Deposition of David White, at p. 79:12-17.)

In other words, the health care providers promised an ENT would be present; and when the ENT failed to show, the father knew the child was not being properly treated. And, the child’s injuries were so apparent that DAVID WHITE thought his son was dead – then the injury cause by failure to obtain an airway caused damage of which the father was aware.

III THE EVIDENCE SHOWS THE ELEMENTS OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS PURSUANT TO THING
The father was present at and viewed the continuing injury – the lack of oxygen – to the child. The fourth cause of action of the Complaint for the father properly alleges all the elements of negligent infliction of emotional distress pursuant to Thing v. LaChusa (1989) 48 Cal.3d 644. Thing set forth the three requirements for the bystander cause of action for negligent infliction of emotional distress:

Sacramento Child Born Brain Damaged Due To Hospital Negligence, Part 5 of 8

May 10, 2009 | by Moseley Collins

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

Likewise, the Plaintiff here saw the injury in process, the excessive bleeding and described it in detail in the Complaint. The father saw an ongoing event – which was a continuing injury – the lack of oxygen. No, the father does not have to have x-ray vision – or be a medical expert – to know there is an injury to the body. As in an automobile accident – the bystanding relative does not have to know the driver is intoxicated to know a car is causing injury.

Here, whenever the injury to the child began, the father has properly shown he directly saw the continuing injury. It is irrelevant whether or not the Plaintiffs saw the initial physiology. Here, the father saw the injury as it was occurring in an ongoing event.

In Wilks V. Hom (1992) 2 Cal.App.4th 1264 (approved by the Supreme Court in Bird v. Saenz (2002) 28 Cal.4th 910), a mother who was in one room of her house when an explosion in another room severely burned her daughter could recover on a bystander theory even though the mother did not actually see her daughter at the exact moment of the explosion. Wilks discussed what Thing did not require – that the plaintiff witness the injury at the exact moment it occurred:
Notable is the omission of a requirement that the plaintiff actually witness the injury to Jessica as and when it occurred. … Following Krouse, we 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, supra, 2 Cal.App.4th at p. 1271.)

Medical Malpractice In Sacramento Hospital Results In Permanent Birth Injury, Part 6 of 8

May 7, 2009 | by Moseley Collins

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

The motion cites Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, which holds that a parent cannot claim emotional distress for viewing the damage caused after a injury caused by radiation therapy. They did not, and could not, observe the radiation overdose; [Petitioners] were, however, present and witnessed the results of the negligent over radiation, when after an unspecified period of time the symptoms of radiation poisoning became visible. (Golstein, supra, 223 Cal.App.3d at p. 1418.) Consequently, the plaintiffs in Golstein viewed the manifestations of the injury after it occurred. In contrast here, the father viewed the injury while it was occurring – the child’s appearance of being lifeless. Golstein is inapplicable, Plaintiff here directly saw the injury in progress.

The motion cites Jansen v. Children’s Hospital Medical (1973) 31 Cal.App.3d 22 for the proposition that a parent cannot claim NIED for learning of the medical injury after the death of the child. She [the mother in Jansen] later learned that her child’s death was due to the failure to diagnose a penetrating duodenal ulcer. (Emphasis added.) (Ochoa, supra, 39 Cal.3d at p. 167.) In contrast here, the father directly saw the injury in progress. The father did not learn of the injury after the event – he directly saw the events.

Further, the Supreme Court in Ochoa disapproved the portion of Jansen which required a sudden, brief occurrence viewed contemporaneously by the plaintiff (Ochoa, supra,30 Cal.3d at p. 168). In other words, defendants were erroneously asserting a plaintiff had to view the exact moment of a sudden brief occurrence of injury. Our review … leads us to the conclusion that the sudden occurrence requirement is an unwarranted restriction on the Dillon guidelines.

Sacramento Hospital Physicians’ Negligence Leaves Child With Brain Injury, Part 7 of 8

May 5, 2009 | by Moseley Collins

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

In Huggins v. Longs Drug Stores (1993) 6 Cal.4th 124, the trial court granted defendant pharmacy summary judgment in an action by parents for negligent infliction of emotional distress arising from defendant’s having written prescription directions for five times the prescribed dosage for a medication that plaintiffs administered to their infant child. The trial court found that plaintiffs could not recover as bystanders to the child’s injury, since there was no contemporaneous observation. In contrast here, the father was present for viewing the injured child during an ongoing injury – the lack of oxygen for the minor.

The defense here cites Powers v. Sissoev (1974) 39 Cal.App.3d 865, 874 – a case decided prior to Ochoa and Thing. There the court held that the mother could not recover for shock which resulted from seeing her daughter 30 to 60 minutes after an accident and thereafter under circumstances not materially different from those undergone by. every parent whose child has been injured in a nonobserved and antecedent accident. In contrast, in the present case, the father was present in the delivery room at the time of the injury. Powers has no relevance to the present case.

The defense here cites Bird v. Saenz (2002) 28 Cal.4th 910, which approved the holding in Wilks discussed above. In Bird, the Supreme Court denied bystander emotional distress to plaintiffs who saw their decedent being briefly rushed through a hospital hallway in respiratory distress. The Supreme Court held that since the plaintiffs were not in the operating room-where a single specific act of negligence occurred – they were not bystanders. Here, in this case, the father was present in the operating room. Further, the Supreme Court in Bird further discussed what can qualify as being a bystander – and visual perception of an impact on the victim is not required:

Birth Injury Of Sacramento Baby Due To Hospital’s Malpractice, Part 8 of 8

May 2, 2009 | by Moseley Collins

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

Here, the Plaintiffs contemporaneously understood that viewing the child’s deterioration was watching injury to a close relative. In Byrd, the Supreme Court discussed Ochoa v. Superior Court (1985) 39 Cal.3d 159:

In that case [Ochoa], a boy confined in a juvenile detention facility died of pneumonia after authorities ignored his obviously serious symptoms, which included vomiting, coughing up blood, and excruciating pain. We permitted the mother, who observed the neglect and recognized it as harming her son, to sue as a bystander for NIED [negligent infliction of emotional distress]. Anticipating the formula we would later adopt in Thing, we explained that when 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. (Emphasis added.) (Bird, supra, 28 Cal.4th at p. 919.)

Significantly, the Supreme Court in Byrd held that in Ochoa the injury-producing event was the failure to provide proper medical attention – and that observing the symptoms was sufficient for bystander emotional distress:
The injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention. Such a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson. (Bird, supra, 28 Cal.4th at p. 919-920.)