Articles Posted in Birth Injury

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.)

In Jones, the plaintiff sued her former attorney for legal malpractice after her ex-husband stopped paying marital support. At the plaintiff’s expert’s deposition, the expert testified that he believed the defendant’s conduct fell below the standard of care when he negotiated the underlying divorce settlement and judgment. When asked whether he believed the defendant’s conduct fell below the standard of care in other areas of his representation, the expert testified Not that I’m prepared to testify to at this time. Jones, at 563. When asked whether he anticipated arriving at any other opinions, the expert testified, No, but if I do, you will be notified well in advance, so as to be able to properly exercise your discovery rights. Id.

At trial, the expert testified that the defendant’s conduct fell below the standard of care when he failed to properly secure the source of plaintiff’s marital support income, a task unrelated to his negotiation of the underlying settlement and judgment. The trial court excluded the pinion, holding that it “would be grossly unfair and prejudicial to permit the expert to offer additional pinions at trial” after he had made affirmative representations that he would not do so at deposition. Id. at 564-565.

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

Continue Reading ›

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.)

Opposition of Defendants National Healthcare Corporation and Memorial Hospital, Inc., to Plaintiffs Jermaine and William Hills’ Motion in Limine #3 to Exclude Opinion of Jeffrey White, M.D., on Decedent’s Life Expectancy
THE INSTANT CIRCUMSTANCES DIFFER FROM THE CASES RELIED UPON BY PLAINTIFF

Plaintiffs rely on the cases of Jones v. Moore (2000) 80 Cal.App.4th 557 [95 Cal.Rtpr.2d 216] and Kennemur v. State of California (1982) 133 Cal.App.3d 907 [184 Cal.Rtpr. 393] in support of their position that Dr. White’s opinion relative to decedent’s life expectancy should be excluded at trial because he did not offer this opinion at his deposition. However, this case differs from those matters.

In Kennemur, the plaintiff attempted to call an expert to testify about causation at trial. However, in three depositions prior to trial, the expert testified that he had no opinion to offer on causation. Kennemur, at 912-913. On that basis, the trial court did not allow the expert to testify on causation, holding that the plaintiff was required to give the defendant notice of the general substance of the testimony that his expert was expected to give at trial either in his witness list or that this information must be disclosed during the expert’s deposition itself. Id. at 919.

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

Continue Reading ›

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.)

Here, Plaintiff is alleging that as a result of Defendant’s negligence, he suffered “Shoulder Dystocia and Brachial Plexus Palsy” while being delivered at ABC Hospital on July 26, 2000. Specifically, Plaintiff’s Complaint alleges negligence including negligently failing to conform to the standard of care with respect to the prenatal care and treatment to plaintiff in utero and to his mother, and with respect to the use of all reasonably safe medical alternatives of obstetric procedures during labor and delivery of plaintiff. Plaintiff is clearly claiming birth-related injuries.

Since Code of Civil Procedure § 340.4 was enacted in 1994, more than ten years after Code of Civil Procedure § 340.5 was enacted, and because Code of Civil Procedure § 340.4 more particularly pertains to birth related injuries caused by medical malpractice, the former statute should override the latter. Therefore, and according to Code of Civil Procedure §340.4, Plaintiffs opportunity to commence this action expired on July 26, 2007.

The Supreme Court has held that when the plaintiff is a minor, it is the knowledge or lack thereof of the parents which determines when the cause of action accrues . Whitfield v. Roth (1974) 10 Cal, 3d 874, 885. Here, based upon the nature of the alleged injuries, Plaintiff, by and through his parents and legal guardians, would have had knowledge of the claimed injury long before the Complaint was filed. Infants with Brachial Plexus Palsy are usually identified in the newborn nursery during the first week of life. The most obvious feature of the disorder is lack of mobility in the arm. Arguably, as such, Plaintiff’s parents would have had knowledge of Plaintiff’s injury over eight years prior to the filing of their Complaint, and before the tolling of the statute of limitations pursuant to Code of Civil Procedure § 340.4.

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

Continue Reading ›

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’S COMPLAINT IS BARRED BY THE STATUTE OF LIMITATIONS

Code of Civil Procedure § 340.4 provides in part:

“An action brought by or on behalf of a minor for personal injuries sustained before or in the course of his or her birth must be commenced within six years after the date of birth, and the time the minor is under any disability mentioned in Section 352 shall not be excluded in computing the time limited for the commencement of the action.” Conversely, Code of Civil Procedure § 340.5 indicates that actions against a health care provider by a minor shall be commenced within three years from the date of the alleged wrongful act-except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.

To clarify such statutory inconsistencies, the Supreme Court has held that the general rule is that when a general and particular provision [is] inconsistent, the latter is paramount to the former. Young v. Haines (1986) 41 Cal. 3d 883. The Court in Young, ultimately applied Code of Civil Procedure § 340.5 to Plaintiffs claim for birth injuries. However, the specifically applicable to birth-related injuries statute, Code of Civil Procedure § 340.4, had yet to be enacted. The present case is dissimilar to Young as that case involved potential allegation of intentional concealment of birth-related injuries, whereas, the instant case does not contain any such allegations.

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

Continue Reading ›

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.)

THE CARE AND TREATMENT RENDERED BY DR. LEE DID NOT CAUSE OR CONTRIBUTE TO PLAINTIFFS’ INJURIES

In California, the substantial factor test defines the scope of conduct subject to liability, i.e., conduct which is a cause in fact of a plaintiff’s claimed injury or harm. That test was set forth in Mitchell v. Gonzales (1991) 54 Cal.3d 1041. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. (Id. at 1052-1053.)

The element of causation is satisfied in a medical malpractice case when a plaintiff produces sufficient evidence to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. (Alef v. Alta Bates Hospital (1992) 5 Cal.App. 4th 208, 216.)

Plaintiffs cannot prove medical causation. Dr. Black’s opinion is to a reasonable degree of medical probability that none of the actions or inactions by Dr. Lee caused or contributed to any injury claimed by the minor plaintiff, Sean Brown.

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

Continue Reading ›

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.)

THE CARE AND TREATMENT RENDERED BY DAVID LEE, MD, WAS WITHIN THE APPLICABLE STANDARD OF PRACTICE
Plaintiff essentially contends that Dr. Lee failed to properly deliver Sean Brown, resulting in an Erb’s palsy. In order for plaintiff to hold Dr. Lee liable for medical malpractice, plaintiffs must establish the applicable standard of care and the defendant’s breach of that standard.

The declaration of board-certified OB/GYN, Hank Black, M.D., and supporting evidence filed herewith, establish that Dr. Lee complied with the requisite standard of care. Because plaintiff’s contentions against Dr. Lee clearly involve actions not within the common knowledge of laymen, the standard of care must be decided on the basis of expert testimony. Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.

Based on the medical evidence, Dr. Black’s opinion is that David Lee, M.D., complied with the standard of care regarding the care and treatment she rendered to Sean Brown.

Dr. Black’s opinions are supported by the medical evidence. The evidence reflects that Ms. Brown came into the hospital in active labor. Dr. Lee was contacted at 1:00 a.m. and arrived by 1:30 a.m. Shoulder dystocia was encountered and properly handled by Dr. Lee resulting in the delivery of a live baby boy, Sean Brown.

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

Continue Reading ›

It is worth noting that situations similar to those described in this medical malpractice 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 birth injury lawsuit and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical malpractice action arising from the birth of Sean Brown. Dr. Lee was only involved in the delivery of the infant on July 26, 2000. The action is brought by Sean Brown, a minor, by and through his mother and Guardian ad Litem, Randi Brown. Plaintiff alleges that Defendant negligently provided prenatal health care and treatment to Plaintiff in utero resulting in injuries to Plaintiff and damages. Plaintiff further contends that Defendant was negligent with respect to not offering reasonably safe alternatives to obstetric procedures during the labor and delivery of Plaintiff.

As set forth in the declaration of board-certified OB/GYN Hank Black, M.D., it is Dr. Black’s opinion that the care and treatment rendered to Sean Brown by David Lee, M.D., was within the standard of practice, and did not cause or contribute to any of his injuries.

The present Motion will also show that Plaintiff’s Complaint is time barred by the statute of limitations set forth in Code of Civil Procedure § 340.4. Pursuant to that code section, Plaintiff should have filed his Complaint on or before July 26, 2007, therefore, Plaintiffs instant Complaint is barred by the statute of limitations.

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

Continue Reading ›

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 injury lawsuit and its proceedings.)

Defendant David Lee, M.D.’s, Notice of Motion and Motion for Summary Judgment, pursuant to Code of Civil Procedure § 437c, as to Plaintiff Sean Brown’s Complaint.

This Motion is brought on the grounds that the complaint has no merit as to moving defendant; further, no act or omission to act by Dr. David Lee caused or contributed to any injuries or damages alleged by plaintiff.

In the alternative, Defendant David Lee will move for summary adjudication, pursuant to Code of Civil Procedure § 437c, subd. (f), as to the following claim set forth in Plaintiffs Complaint on the following grounds:

Issue Number One: Timeliness of Plaintiff’s Complaint

Plaintiffs Complaint has no merit because Plaintiff fails to establish the elements necessary for a timely medical malpractice claim for personal injuries sustained before or in the course of birth. Pursuant to Code of Civil Procedure § 340.4, Plaintiff, born on XX/XX/2001, should have filed his Complaint on or before July 26, 2007, in order to be considered timely. The complaint was not filed until October 22, 2007.

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

Continue Reading ›

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 medical malpractice lawsuit and its proceedings.)

SYMPATHY PLEAS ARE IMPROPER AND VIOLATE THE LAW

Whether or not following this incident defendant Green was remorseful, depressed, or in any other way was upset over this incident and its consequences is irrelevant to any issue in this case, and any evidence of it or argument would be unduly prejudicial and involve an undue amount of time to rebut. Any plea of sympathy for Defendant Green is improper because it asks the jury to violate the law and their oath to judge the case based on the evidence presented to them and without regard to sympathy for any party. While such a plea can be cleverly worded and disguised in its presentation, it is still inadmissible and improper and should not be allowed by this Court.

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

EVIDENCE CODE § 352 MANDATES EXCLUSION OF SYMPATHY PLEAS. AS IT WOULD RESULT IN PREJUDICE TO PLAINTIFF. CONFUSION OF THE ISSUES. AND WOULD MISLEAD THE JURY SUCH THAT ITS PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE
This Court has the discretion to exclude prejudicial evidence. California Evidence Code § 352 provides that:

Continue Reading ›

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 medical malpractice lawsuit and its proceedings.)

Plaintiffs’ Motion in Limine to Prohibit Argument or Evidence of Defendant’s Grief, Sorrow or Remorse

PLEASE TAKE NOTICE that Plaintiffs will move this court in limine, before trial and selection of jury, for the following orders:

1. Prohibit testimony and argument of grief, remorse or sorrow by Defendant Green with respect to plaintiff following his birth.

This motion is made on the grounds that such evidence is not relevant to any issues presented in this action, and would be highly improper and prejudicial to Plaintiffs.

This motion is based upon this notice, the accompanying Memorandum of Points and Authorities, any documents already on file with this Court, and upon such other oral and documentary evidence as may be presented prior to or at the hearing of this matter.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical negligence action involving the care and treatment provided to the plaintiff Amy Choo during thge course of her labor and delivery with the minor plaintiff Ellen Choo. Plaintiffs anticipate that defense counsel may improperly attempt to appeal to the trier of fact’s sympathy by eliciting testimony concerning any grief, sorrow or remorse by Defendant Paul Green, M.D., following the delivery of plaintiff in an unjustified effort to relieve the defendants from liability for Plaintiffs’ significant and permanent injuries.

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

Continue Reading ›