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 medical malpractice action and its proceedings.)

Plaintiff Mark Smith, a minor, by and through his Guardian ad Litem, Alana Smith, hereby opposes Defendant Katherine Steinberg, M.D., et al.’s, Motion in Limine No. 6, to limit the testimony of Plaintiff’s expert witnesses to those opinions and conclusions testified to at their depositions and to exclude testimony based on materials not provided to or reviewed by them prior to their depositions, as follows:

Kennemur is Not Controlling
By this motion, Defendants are asking this Court to preclude Plaintiff’s experts from saying anything that they have not already said in their depositions. This is clearly contrary to the law, and would create a possible loophole in the expert discovery statute.

In the extreme, a Defendant would simply have to ask very few questions in deposition, and thereby effectively prevent the expert from testifying about anything other than what he or she was asked.

This is particularly true in instances where a Defendant insists on asking overly broad, catch-all questions such as, do you have any other opinions not yet expressed, rather than simply deposing the expert about the specific areas about which an expert could reasonably have an opinion in this case.

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, 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 case and its proceedings.)

DR. BLACK SHOULD BE PRECLUDED FROM GIVING ANY OTHER OPINIONS ON THE SUBJECT OF A PEDIATRIC NEUROLOGIST VERSUS AN ADULT NEUROLOGIST

Although Plaintiff’s counsel attempted to solicit from his own witness differences in education, background, training and/or knowledge of the two specialities, Dr. Black chose not to answer the question. She chose to give no admissible basis for her opinion and no opinion other than lack of credibility. Since she did not testify at her deposition of other bases or other opinions on the subject, she must now be precluded from giving same. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

An expert must, if asked at deposition, disclose the substance of the facts and the opinions which the expert will testify to at trial. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919.) In Kennemur, the court explained:

[O]nly by such a disclosure will the opposing party have reasonable notice of the specific areas of investigation by the expert, the opinions he has reached, and the reasons supporting the opinions, to the end the opposing party can adequately prepare for cross examination and rebuttal of the expert’s testimony. (Whitehill v. United States Lines. Inc. (1986) 177 Cal.App.3d 1201, 1210, citing Kennemur at 919.)

Dr. Black’s intentional failure to disclose precludes her from expressing such testimony at trial.

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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, 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 case and its proceedings.)

POINTS AND AUTHORITIES
DR. BLACK’S TESTIMONY AS TO “CREDIBILITY” IS IRRELEVANT AND IMPROPER

There is no foundation for Dr. Black being able to opine that a physician’s credibility drops merely because they see patients for lawyers. In fact, she has testified a 100 times as an expert, presumably for lawyers. This credibility comment was made without any proper basis and is surely not a proper subject for expert testimony (Evidence Code section 801 and 802). As such, it should be excluded. Defense counsel can lay no foundation that Dr. Black knows anything about the credibility of Dr. Wong or is an expert on whether pediatric neurologists have more credibility than general neurologists. Evidence Code section 803 states as follows:

The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Evidence Code section §801(a) states:

“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and ….”

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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, 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 case and its proceedings.)

Plaintiffs Emma and Sabrina Smith’s Motion in Limine to Exclude the Opinion of Dr. Black Regarding the Difference Between a Pediatric Neurologist and an Adult Neurologist

Plaintiff Emma Smith, through her Guardian as Litem, Sabrina Smith, brings the following motion in limine and requests that the court order as follows:

1. To exclude any and all comments or opinions of Dr. Black regarding the differences between a pediatric neurologist and an adult neurologist;
2. To exclude any and all comments or opinions that adult neurologists “who see kids only for lawyers, credibility drops”;
3. To order defendant counsel to caution his witness as to the above referenced rulings;

4. To order defense counsel to approach the bench and make an offer of proof prior to soliciting any testimony that could elicit such an opinion or comment.

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

INTRODUCTION
At the conclusion of the deposition of the defense expert, Dr. Black was asked if she had expressed all of her opinions. Plaintiff’s counsel then questioned his own witness about a separate subject and a new opinion. Specifically, on page 145, Plaintiff’s counsel states that his witness will be testifying regarding whether there is a difference between an adult neurologist and a pediatric neurologist, in terms of their knowledge and ability to review the materials.

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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, 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 case and its proceedings.)

SUCH COMMENTS AND OPINIONS ARE IRRELEVANT, INADMISSIBLE AND PURELY SPECULATIVE

Evidence Code section 350 states that only relevant evidence is admissible. Speculation in itself is not evidence and evidence which produces only speculative inference is irrelevant. (People v. De la Plane (1979) 88 Cal.App.3d 223) Evidence Code section 352 allows the court in its discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice of confusing the issues or of misleading the jury. Testimony which invites improper speculation by the jury is construed to be misleading, confusing, and can be excluded pursuant to Evidence Code section 352. (Cox v. Superior Court (2002) 98 Cal.App.4th 670, 675.) In this case, Dr. Hill treated this child for months, from March 2001 through January 2000. She then left the University. It is purely speculation that had Emma sought out Dr. Hill again that she would have made a diagnosis she ruled out earlier.

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

During the time frame that Dr. Hill treated Emma she was only part-time at Universal Hospital, working two days a week in the clinic. She started at Universal Hospital in May 2000 and left in February 2000. It is also pure speculation that had she seen the original pediatric neurologist, Dr. Trauner, Dr. Lee or Dr. Skoglund who were available during this entire course of time, that any of them would have made this diagnosis. There is no duty to return to a physician who is wrong.

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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, 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 case and its proceedings.)

MRS. SMITH’S ACTS CANNOT BE CONSIDERED ON MITIGATION.

Although the law does require a plaintiff in a personal injury action to use reasonable effort to care for their injuries or avoid further harm, such a duty to mitigate cannot and should not be inferred as an obligation of Emma through her mother’s decision to seek additional opinions. An extensive amount of research has been done to determine if there is a California case addressing imputation of a duty to mitigate to a child. Counsel has been unable to locate such California authority. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

But the issue was decided by the Connecticut Supreme Court in the case of Lange v. Hoyt (1932) 114 Conn. 590. In that case, an eight-year-old child was struck by a bus. The mother refused hospitalization and surgeries for the child, and the minor’s injuries were therefore aggravated. Holding that the mother’s failure to mitigate was not a superseding or intervening act, the Connecticut Supreme Court stated as follows:

A child of the age of eight years is necessarily dependent upon her parents as regards the steps to be taken to bring about a recovery from an injury, and, if she is not herself guilty of any negligence or improper conduct, the failure of the parents to take proper steps to that end, by a parity of reasoning, cannot be such a cause of any portion of the injuries as will defeat a recovery for all the results of the defendant’s wrongdoing. (Lange v. Hoyt, supra, 114 Conn. 590.)

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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, 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 case and its proceedings.)

This doctrine was again reviewed in the sentinel case of Haft v. Lone Palm Motel (1970) 3 Cal.3d 756, where defendants attempted to characterize imputing parental negligence as an intervening or superseding cause. In Haft, the negligent party attempted to argue that the alleged negligence of the father, Mr. Haft, in the death of his five-year-old son was a causation issue. They claimed that his failure to appropriately supervise was a intervening and superseding cause which broke the chain of proximate causation with respect to the deaths of father or son. (Haft v. Lone Palm Motel, supra, 3 Cal.3d 756, 769.) In response to same, the court stated as follows:

The fallacy of defendants’ contentions as to “superseding cause” is perhaps most clearly illuminated by its application to the cause of action relating to the death of five-year-old Mark. In that context the claim that defendants’ responsibility to Mark was cut off by Mr. Haft’s alleged negligence is in reality no more than an attempt to resurrect the doctrine of imputed contributory negligence between a minor and his parent, a theory which the California courts have long repudiated. (Crane v. Smith (1943) 23 Cal.2d 288, 295,144 P.2d 356; Zarzana v. Neve Drug Co. (1919) 180 Cal. 32, 34–37, 179 P. 203) [FN15] The imputed contributory negligence formula transferred the negligence of a parent (in not carefully supervising his child, for example (see Hartfield v. Roper (N.Y. 1838) 21 Wend. 615, 34 Am.Dec. 273)) to a plaintiff child so as to bar the child’s recovery against an admittedly negligent defendant; defendants seek to obtain a like dispensation through the jury’s application (in reality, misapplication) to the nebulous superseding cause doctrine. 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, 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 case and its proceedings.)

POINTS AND AUTHORITIES
SABRINA SMITH WAS NOT NEGLIGENT

In the case at bar, there is absolutely no evidence that Mrs. Smith was negligent. There is no evidence that she did anything other than advocate for her child’s correct diagnosis. No witness has opined that she ever acted against medical advice. The record is devoid of evidence that by seeking additional opinions after physicians failed to treat and diagnose her child, she acted in any manner other than a reasonable person or parent.

To allow defense witnesses to imply that if she had taken an alternative approach and returned enough times to Dr. Hill, who did not make the diagnosis, the diagnosis would have been made, is pure speculation. Dr. Hill was not even at the University after February 2000! Evidence Code 352 precludes such speculation. Mrs. Smith cannot appear on the verdict form without proof of fault. The act of not returning to the same physician, unless this changing of doctor is against medical advice, is not negligence. Mrs. Smith had no duty to return to Dr. Hill. Duty is a question of law. 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, 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 case and its proceedings.)

In October 2002, Mrs. Smith watched a television show regarding DRD. She immediately knew that the diagnosis her daughter had carried for nearly four years, made by Dr. Hill, of spastic diplegia due to birth trauma, was incorrect. She therefore called her pediatrician and was referred to endocrinologist, Bob Greene, M.D. On the same day as the appointment Dr. Greene prescribed a trial dosage of L dopa/Sinemet for Emma. Within literally hours Emma’s symptoms began to disappear.

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

THE ISSUE

During the deposition of the defense expert witness, Dr. Nancy Black, she commented repeatedly that Mrs. Smith did not bring Emma to the same doctor during this four year period. Quotes from the deposition representative of said comments are attached hereto as Exhibit 1. She states that “the kid has been everywhere. The mother was shopping around.” Ultimately, she gives the opinion, based on nothing other than utter speculation, that Emma probably would have been diagnosed somewhat earlier had she just continued to follow up with the first neurologist.

Dr. Black gives this unfounded opinion despite the fact that she admits that Mrs. Smith had Emma participate in all testing ordered by Dr. Hill and that all the testing was normal. Admittedly Dr. Hill did not set a return appointment.

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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, 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 case and its proceedings.)

Plaintiff’s Motion in Limine to Exclude any Reference or Comment by Defendants’ Expert Witness Nancy Black, M.D. and of Any Other Witness that Emma Smith’s Delay in Diagnosis Was Contributed to or Caused by Her Mother’s Failure to Return to Defendant Dr. Hill or Other Physicians

Plaintiff Emma Smith, through her Guardian as Litem, Sabrina Smith, brings the following motion in limine and requests that the court order as follows:

1. To exclude any and all comments concerning Sabrina Smith’s failure to return Emma to the treatment of Dr. Hill or other health care providers;
2. To exclude any and all comments or opinions Emma would have been diagnosed sooner if she had returned to Dr. Hill or other health care providers;
3. To order defendant counsel to caution his witnesses as to the above referenced rulings;

4. To order defense counsel to approach the bench and make an offer of proof prior to soliciting any testimony that could elicit such an opinion or comment.

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

INTRODUCTION
This case involves the failure to appropriately diagnose and treat an eight year old child, Emma Smith, for a primary dystonia, dopa responsive dystonia (DRD). The child, Emma, from the age of eight years and one month through age twelve years and four months, became progressively disabled as a result of this treatable and reversible disease. During this time frame she was cared for by her parent, Sabrina Smith.

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