Articles Posted in Birth Injury

The following blog entry is written to illustrate an example of a birth injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury lawsuit and its proceedings.)

Instead of attending to her patient as she had promised, defendant Brady kept her vacation plans at that time without properly transferring plaintiff’s care to another doctor. Plaintiff said she felt alone, frightened, and abandoned. During defendant Brady’s absence, plaintiff was examined by an on-call perinatologist covering at the hospital that weekend, Dr. Grady. Grady testified that he was asked by someone to see the patient, but that defendant Brady never conferred with him over the next three days.

Mercy Hospital’s attending perinatologist, Dr. Herman, saw plaintiff on October 22, 2004. Although defendant Brady was still plaintiff’s physician, plaintiffs said, she was not caring for or communicating with her patient. When Dr. Herman took over plaintiff’s care, he observed through vaginal ultrasound that defendant Brady had performed the cerclage improperly and had used the wrong procedure. The cerclage failed as a result. By the time plaintiff was informed about her true condition and Dr. Herman explained her options to receive an abdominal cerclage to try to rescue the babies, it was too late. Plaintiff’s lower, exposed twin (minor plaintiff #1) had developed IAIS-Intra-Amniotic Infection Syndrome, which set off a series of events. The option for an abdominal, rescue cerclage was no longer available. The infection necessitated a lengthy hospital stay, and ultimately, when it spread from twin #1 to the upper twin (minor plaintiff #2), the babies had to be delivered by Cesarean Section at 24 weeks gestation.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate an example of a birth injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury lawsuit and its proceedings.)

Plaintiff remained in the hospital for two days but said she was never told that her cervix tore or that defendant Brady had encountered complications with the procedure. Defendant Brady also failed to monitor the cerclage after the procedure through ultrasound. Plaintiff was sent home with limited instructions for bed rest. Despite knowing that she had encountered complications with the procedure, the doctor assured plaintiffs and plaintiff’s mother, that the operation had been a complete success and that there was “no way” that the cerclage would come undone. After returning home, plaintiff complied with her doctor’s orders and stayed off her feet as much as possible. Two weeks later, she experienced a loss of fluid and sought an emergency appointment with her doctor, who was again unavailable for several days. After plaintiff, her husband, and her mother all called defendant Brady’s office without success in reaching the doctor, plaintiff finally spoke to an after-hours on-call physician, who advised her she could wait to see her doctor until the next morning. The next day, October 18, 2004, defendant Brady was gone to a conference, so plaintiff was seen by defendant Brady’s nurse practitioner, who observed that she was now up to 4 cm dilated with the membranes of the lower twin presenting through the cervix. Colleen was rushed to the hospital by fire department paramedics.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate an example of a birth injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury lawsuit and its proceedings.)

CASE INFORMATION
FACTS/CONTENTIONS

According to court records: Plaintiffs, husband and wife, became pregnant with twins through in-vitro fertilization in approximately June 2004 after attempting for five years to get pregnant. Plaintiff had previously suffered an ectopic pregnancy resulting in the loss of one fallopian tube.

Plaintiff presented with numerous high risk factors, including advanced maternal age (38 years), a negative Rh factor, a clotting disorder, and a multiple pregnancy resulting from IVF therapy when she sought medical care from defendant Brady, M.D. and her medical corporation Brady, M.D. Inc. through her medical practice located in Roseville, California in August 2004. Before seeing defendant Brady, plaintiff had been pregnant with triplets. She lost one of the babies before consulting with defendant Brady.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth and brain injury lawsuit and its proceedings.)

All of defendant’s experts have reviewed the videotapes they complain of in their Motion in Limine. Not only have the experts reviewed and looked at the videotapes, but defense counsel’s own experts have stated under oath that these tapes form the basis, in part, of their own opinions regarding the nature of injury and prognosis of this child. Never at any time prior to plaintiffs receipt of this Motion in Limine has the defense ever requested in any way to depose or question Dr. Smith or Cynthia Lee. Never at any time prior to plaintiffs receipt of defendant’s Motion in Limine has defense counsel expressed a desire to supplemently designate their own experts in these particular areas. Consequently, it is disingenuous at best, and intentionally misleading at worst, for them to state in their Motion: Therefore, Dr. Johnson was unable to depose them to assess whether they are qualified or to assess what was done during the testing. Further, because these alleged experts were not designated as such, Dr. Johnson was unable to supplemently designate his own experts in this area.

As stated previously, the defense has known for over a year regarding the reliance upon these reports by plaintiffs experts. If any side is engaged in gamesmanship, it is the defense who waits until the last moment to make these spurious allegations.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth and brain injury lawsuit and its proceedings.)

Here, Stefan Hall, M.D., is a pediatric neurologist. He has seen this child on three occasions and along the way has provided the child with recommendations for treatment and has reached a prognosis and opinions relative to future care needs of this child. Even outside of the forensic realm, pediatric neurologists always review outside tests done by physical therapists and speech therapists in an effort to more finitely define the specific delays and issues in those areas. There can be no question that these reports are quite specifically the type of reports and findings that pediatric neurologists always, even outside the realm of legal testimony, rely on in order to assist, prognose and make appropriate recommendations.

Sally Jackson is a registered nurse specializing in case management, rehabilitation and life care planning. Her entire profession is based upon review of outside physicians, physical and speech therapists. In her area of expertise inevitably and in every situation she relies upon the specific types of studies and testing performed by Dr. Hadley Smith and Ms. Cynthia Lee.

All of plaintiffs experts have indicated specifically that in part they relied upon these specific reports and the video in order to assist them in formulating their opinions.

Notwithstanding whether the reports themselves can be introduced into evidence, there can be no question based upon the above authority that plaintiffs experts can rely upon the findings and reports and make known their reliance upon same and the contents therein.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth and brain injury lawsuit and its proceedings.)

If anything, after plaintiffs experts testify regarding the matters relied upon by them from Dr. Smith and Ms. Lee’s report, the defense can certainly request a jury instruction that evidence from those reports only be received for that limited purpose, specifically as part of the information upon which those experts base their opinion. In fact, that was specifically what was done in the Kelley case.

Additionally, defendant’s reliance upon the case of Mosesian v. Pennwalt Corporation (1987) 191 Cal.App.3d 851 is misplaced. (In defendant’s Motion this case is incorrectly cited as Mossman v. Pennant Corporation) In fact, the Mosesian facts are radically different than presented here. In Mosesian, a defense expert specifically testified as to the verbal hearsay opinions of six outside experts regarding the very specific conclusion that that expert was testifying to. This is not remotely close to the issues presented here. Additionally, the facts in Mosesian did not involve a medical issue with physicians relying on reports or studies and/or testing done by other medical experts.

In fact, the court in Mosesian acknowledged the rule and holding of Kelley v. Bailey. The court states:

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth and brain injury lawsuit and its proceedings.)

David Greene was seen and evaluated by a speech therapist, Hadley Smith, Ph.D. On two separate occasions, specifically October 29, 2002, and approximately ten months later. Additionally, plaintiff was seen and evaluated at ABC Pediatric by registered physical therapist, Cynthia Lee, P.T., P.C.S. Also on two separate occasions, specifically September 20, 2002 and about ten months later. Two videotapes were produced in conjunction with the ABC Pediatric therapy evaluations.

A number of David Greene’s medical experts recommended these tests be done in order to further provide them with additional information in which to base their expert opinion. This was done. True and correct copies of each and every report by Hadley Smith, Ph.D. and Cynthia Lee, P.T. are attached hereto as Exhibits 1, 2, 3 and 4, respectively.

PLAINTIFF’S EXPERTS, STEFAN HALL, M.D., HANK WHITE, PH.D., AND SALLY JACKSON MAY PROPERLY RELY UPON AND TESTIFY REGARDING THE TEST RESULTS AND VIDEOTAPES DONE BY HADLEY SMITH, PH.D. AND CYNTHIA LEE, P.T.

Evidence Code §801 states:

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth and brain injury lawsuit and its proceedings.)

Plaintiff, David Greene’s, Opposition to Defendant, Robert Johnson, M.D.’s, Motion in Limine No. 10

Plaintiff, David Greene, a minor, by and through his Guardian ad Litem, Owen Greene, hereby opposes defendant, Robert Johnson, M.D.’s, Motion in Limine No. 10 for order precluding plaintiff from introducing all reports, data, opinions, etc., of speech therapist, Hadley Smith, Ph.D., and physical therapist, Cynthia Lee, P.T., and from allowing all experts from testifying and relying on their testing materials.

This Opposition is based on the attached Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

As a result of defendant, Robert Johnson, M.D.’s, negligence, minor child David Greene suffers from two separate and distinct injuries; a brachial plexus/ Erb’s palsy to the right upper extremity and an hypoxic Ischemic Encephalopathy resulting in residual brain injury, behavioral, cognitive and speech deficits.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

On appeal, the Easterby court distinguished its circumstances from that of Kennemur and Jones, stating: The present case differs from Kennemur, Jones and [Bonds v. Roy (1999) Cal.4th 140 [83 Cal.Rptr.2d 289] in one salient respect: Defendants learned approximately three months before trial that Brown would go beyond his original deposition testimony and offer a causation opinion at trial … [U]nlike the defendants in Kennemur and Jones, and Bonds, defendants in this case had the opportunity to take Brown’s deposition in light of his changed opinion and prepare for cross-examination and rebuttal of his testimony. The elements of unfair surprise and prejudice present in Kennemur and Jones, and Bonds are entirely absent in this case. Id. at 780.

The defense acknowledges that plaintiffs in this case did not receive as much advance knowledge regarding Dr. White’s life expectancy testimony as the defendants did in Easterby. However, plaintiffs still had an opportunity to meet and confer with the defense on the issue of Dr. White’s testimony for a period of time after the completion of Heather Xitco’s deposition. Xitco’s deposition was completed on March 30. Trial is not set to begin until April 19. Plaintiffs could have contacted the defense about re-deposing Dr. White on the limited issue of life expectancy, and could have imposed conditions on the deposition to make it more convenient for them, such as requiring the deposition to take place in their office to cut down on attorney time.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

Plaintiff Denise Easterby was injured while at a dentist’s office when a dental assistant stepped on a wire connected to a sensor in plaintiff’s mouth. She received pain management and physical therapy for pain in various areas of her body for several months, to little success. Thereafter, plaintiff was referred to an orthopedic surgeon, who diagnosed her with nerve compression, herniated disks and compressed spinal nerves. He performed successful surgery to resolve the conditions.The orthopedist, Dr. John Brown, was retained as an expert by plaintiffs and was deposed by the defense approximately seven months before trial. At deposition, Dr. Brown testified that he had not formed any opinions on the subject of causation as they related to the initial dental accident. Id. at 775. When asked whether he had an opinion as to what caused the plaintiff to require back surgery (whether it was a pre-existing condition or the result of the dental accident), the doctor said that he didn’t know what caused it. Id.

Thereafter, three months before trial, plaintiffs sent the defense correspondence indicating that Dr. Brown now intended to express as to causation at trial. Id. at 775-776. The defense did not seek to depose the doctor after receipt of the letter. Id. at 776.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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