Articles Posted in Brain Injury

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

After Paul was discharged from the hospital, he attended outpatient rehabilitation for approximately three months. At this point it was clear that Paul was much slower to process information, had significant memory and motor-skills problems, and could not engage in many of the activities he used to enjoy. During the initial three-month recovery period, Paul suffered from daily severe headaches due to his brain trauma for which he treated with Vicodin.

Paul spent the remainder of his eighth-grade year in a homeschool program designed to help him during the recovery period. Paul attempted to go back to Sacramento Junior High School but he could not cope with the confusion and the chaos of a regular school program.

A teacher assigned from the Sacramento Unified School District came to the home two to three times per week to assist Paul with his school work. In ninth grade, Paul was home-schooled with the California Virtual Academy (an internet-based schooling program). Sherrie stayed home from work during this year to assist Paul with his recovery and learning.

At the beginning of Paul’s tenth-grade year in the fall of 2007, Paul participated in an independent studies homeschooling program affiliated with the Sacramento High School. The students in this program work from the home and visit the school once per week for grading and extra help. Paul did not function well in this program and the school representatives recommended that Paul return to Sacramento High School. Due to his severe cognitive impairment, Paul has been unable to successfully matriculate into Sacramento High School. Paul’s physicians have recommended an intensive residential based rehabilitation program, in which he is currently in the process of admission.

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

FACTUAL BACKGROUND

On the date of the collision Plaintiffs had stopped at the intersection of White Road in the left turn lane where they waited for the red arrow signal to turn green. Upon the signal cycling to a green arrow, Sherrie Martin proceeded into her left turn in a normal course and speed.

Defendant Dan Brown was traveling westbound on S.R. 40 in his 2000 Ford F-150 dual-wheeled utility truck at approximately 60 miles-per-hour and failed to stop at the red light causing the collision. Brown was in the course and scope of his employment with the California Gas Company at the time of the collision.

The defendants’ Ford truck struck the Martins’ vehicle directly at the passenger side where Paul was seated. Brown admitted in deposition that he did not brake before the impact and that he was traveling at least 55 miles-per-hour. The deepest point of impact was the right-front grill of the Ford piercing through the passenger door and window area where Paul’s head was located.

Paul suffered life-threatening injuries on the scene including a severe head trauma, brain hemorrhage, collapsed lung, fractured pelvis, multiple fractured ribs, spleen and liver lacerations, internal bleeding, and other cuts and soft-tissue injuries. At the scene, Paul initially had a Glasgow Coma Scale of 13 which quickly fell to a 3 when he became completely unresponsive. Paul went into respiratory failure at the scene likely due to brain swelling (subdural bleed in bilateral frontal lobes) and/or aspiration.

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

PLAINTIFF’S TRIAL BRIEF
INTRODUCTION & FACTUAL BACKGROUND

On November 2, 2005, at 11:35 a.m., 14-year-old Paul Martin was a passenger with his mother Sherrie while driving eastbound on California State Route 40 in Sacramento. The Plaintiffs made a lawful left turn at White Road where they were violently struck by a California Gas Company truck driven by Dan Brown which ran through a solid red light. Paul Martin suffered life threatening injuries including a severe traumatic brain injury that has permanently disabled him.

PARTIES
Plaintiffs:

Paul Martin was an active fourteen-year-old boy at the time of the collision. He was in the eighth grade at Sacramento Junior High School and enjoyed riding dirt bikes, skateboarding, building and repairing bicycles, drawing, and playing basketball. Prior to the collision Paul had been a below-average student, but had recently found success with an independent studies program in which he received mostly A’s and B’s. After suffering a moderate to severe traumatic brain injury, Paul’s entire life has changed. His ability to process information, memory, ability to communicate, and motor skills are now drastically diminished. Paul’s personality has completely changed, he is depressed, lacks ambition, and he can no longer engage in many of the activities he used to enjoy. As a result of the impact of the collision, Paul has a large 6″ scar on the back of his head, a drooping left eye, and partial facial palsy.

Sherrie Martin escaped the collision with only soft-tissue injuries.

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

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Third, evidence or argument regarding brain damage would be highly prejudicial to Defendants and misleading or confusing to the jury. Cal. Evid. Code § 352 (excluding evidence that is more prejudicial, confusing, or misleading than probative). The presentation of such evidence could plausibly lead the jury to believe that brain damage is at issue in the case, when in fact it is not.

Fourth, allowing such evidence would unnecessarily consume trial time. Cal. Evid. Code § 352. If Plaintiffs allowed Dr. X. to testify about whether the amount of water consumed during the contest could or would be expected to cause brain damage, Defendants would not only have to present rebuttal expert testimony, but would have to spend time attempting to explain to the jury that despite the fact that such testimony was presented to them, it has no bearing on the claims at issue.

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

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Despite the Smith Plaintiffs’ withdrawal of any brain injury claim, it appears that Plaintiffs’ counsel aims to improperly prejudice and confuse the jury by nonetheless presenting Dr. X.’s testimony that the volume of water consumed during the Hold Your Wee for a Wii contest possibly could be expected to cause brain damage.

ARGUMENT

Evidence regarding whether the amount of water consumed during the Hold Your Wee for a Wii contest could or would be expected to cause brain damage would be irrelevant, highly prejudicial, confusing to the jury, and time consuming.

First, evidence or argument regarding brain damage is not relevant. Cal. Evid. Code § 210 (irrelevant evidence inadmissible). The evidence does not prove or disprove any disputed fact that is of consequence to the determination of the action. Cal. Evid. Code § 210 (defining relevant evidence). The Smith Plaintiffs do not claim that any of them have actually suffered brain damage. Furthermore, it is not disputed that Sherrie Johnson died as a result of pulmonary edema stemming from hyponatremia. While impaired brain function probably was involved in her death, there is no evidence or claim that she suffered from brain damage. Any discussion of whether the amount of water consumed by Jennifer Strange (the second-place finisher) could or would be expected to cause brain damage would be nothing more than a back-door attempt to argue that the amount of water consumed by Lucy Davidson (the contest winner) could or would be expected to cause brain damage. This is particularly concerning because before the Smith Plaintiffs withdrew their brain damage claim, they focused heavily on Paul Smith’s possible injuries.

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

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

“These men [the Smith Plaintiffs] had symptoms of increased intracranial pressure that did not cause unconsciousness or seizures; nevertheless their brains were subjected to compression with the potential for loss of neurons that may have subsequent effects on these individuals.” (Declaration of Ken X., M.D., Ph.D., in Opposition to Defendant Geary’s Motion for Summary Adjudication.)

If the body is able to excrete water fast enough to avoid lethal brain swelling, sodium balance is gradually re-established. As that happens, symptoms gradually subside, although this does not mean that permanent damage, especially brain damage, has not already occurred due to swelling. (Id. at 7:17-24 (emphasis added).)

“Given the significant amount of water she [Paul Smith] consumed, it would be expected that he sustained some degree of permanent brain damage.” (Id. at 8:10-11) To support this brain injury claim, the Smith Plaintiffs also designated an expert allegedly specializing in brain injury, Dr. Monica Y..

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

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Defendant Radio Roseville’s Motion in Limine No. 3: to Exclude Evidence or Argument Regarding Whether the Volume of Water Consumed at the Radio Contest Could or Would be Expected to Cause Brain Damage

INTRODUCTION

As the court is aware, the lawsuit brought by Sherrie Johnson’s family has been consolidated with a lawsuit brought by three other contestants, Paul Smith, Steven Davis, and Mike Jones (the Smith Plaintiffs). The Smith Plaintiffs seeks recovery for injuries they say were caused by the Hold Your Wee for a Wii contest, allegedly consisting of feeling nauseated after the contest in addition to feeling emotional distress.

In both 2007 and 2008 (long after the contest had concluded), each of the Smith Plaintiffs stated under oath that they sought recovery solely for emotional distress. The Smith Plaintiffs pursued these claims despite the fact that they sought no treatment for emotional distress between March of 2007 and the spring of 2009 (in fact, Steven Davis did not see a therapist at all in the months following the contest). In March of 2009, the Smith Plaintiffs changed counsel to be represented by Dewey, Cheatham and Howe, which also represents the Johnson family.

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

On that issue, defendant has failed to meet her prima facie burden because her moving papers do not include any evidence, admissible or otherwise, that Ms. Smith’s fall treatment had concluded as of April 30. Nowhere in the evidence offered there does any health care provider opine that the care for the fall had concluded or the care that came afterward was completely unrelated to the fall. Again, nowhere do the words appear in Defendant’s evidence that care for the fall had concluded. Without some evidence to that effect, the defendant has failed to meet its burden of producing evidence.

The defense asks the court to make an enormous leap of faith and make that finding by attaching to their attorney’s declaration without foundation medical records that reflect pain medications were discontinued and discharge planning commenced. For the reasons stated in plaintiff’s objections submitted herewith, this evidence is inadmissible to prove her care for the fall had concluded.

Thirdly, there is at least a factual dispute on the question of whether some or all of decedent’s hospital care after April 30, was for the fall. Plaintiff, and logic, dispute any notion that on April 30, 2005, Ms. Smith’s care for the fall had concluded. Tammy Bauer, who guided the medical care from the patient’s standpoint declared that the care in the hospital for the fall continued during Ms. Smith’s entire stay as she continued to have severe or intractable left thoracic pain.

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

THERE IS A TRIABLE ISSUE OF FACT AS TO WHETHER THE NEGLIGENCE OF THE DEFENDANT WAS A CAUSE OF MS. SMITH’S DEATH WHERE NEGLIGENCE OF HEALTH CARE PROVIDER’S AT THE HOSPITAL WHERE SHE SOUGHT CARE CAUSED HER DEATH.

Defendant’s Motion misses the mark for several reasons.

First, defendant misstates the law of causation in this context. [W]here the additional harm results either from the negligence of doctors or hospitals who furnish necessary medical care, or from the materialization of a risk inherent to necessary medical care, the chain of causation set in motion by the original tort remains unbroken.

Even if one assumes, arguendo, that in the middle of this hospitalization the care for the fall concluded and the care for a completely unrelated seizure disorder began, the treatment for that disorder would still arise from the materialization of a risk inherent to necessary medical care. In this case, it is readily foreseeable that putting an elderly woman in the hospital would trigger some attendant care for unrelated medical conditions. Defendant’s reading of the cases to exclude from causation these complications in care misstates the case law. That is why they do not cite nor is there any case where a negligent tortfeasors causal culpability stops during the hospitalization that the tortfeasor created. The fall put Ms. Smith in XYZ Hospital and subjected her to their care. While under their care, her death was negligently caused. That raises a triable issue of fact on causation.

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

In Hastie v. Handeland (1969) 274 Cal. App. 2d 599, a case involving a vehicular collision and subsequent death of the victim following medical care, the court held a tortfeasor was liable for the subsequent injury suffered during medical treatment. Id. at pp. 604-605 If death resulted from a risk inherent in the medical treatment reasonably required to cure the injuries caused by the accident, respondents the original would be liable irrespective of whether such treatment was rendered in a proper or a negligent manner.

The question is one of causation, and where the additional harm results either from the negligence of doctors or hospitals who furnish necessary medical care, or from the materialization of a risk inherent to necessary medical care, the chain of causation set in motion by the original tort remains unbroken. [Citations.] (Id. at p. 606.)

In one case, the victim of a motorcyle accident was injured further by a trauma room surgeon. Following that care, the patient sought care from Kaiser Foundation facilities, where their negligence further aggravated the situation. The court held that the trauma surgeon was responsible for the additional injuries caused by the negligence of the Kaiser staff. The court explained: The principle usually appears in cases involving automobile accidents, where the initial tortfeasor’s careless driving exposed the plaintiff to a risk of physical harm, including medical treatment for the injuries resulting from the accident. The initial tortfeasor therefore is liable for the resultant medical treatment. The rationale for the rule is that such medical treatment is closely and reasonably associated with the immediate consequences of the defendant’s act and forms a normal part of its aftermath.

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