Articles Posted in Real Cases

A ventricular drain with pressure monitor was placed in his brain on January 7, 2001. In addition to the foregoing, Plaintiff was suffering from aspiration and a right-sided pneumothorax. As a result, a chest tube had to be placed into his lung in the Emergency Department.
The operation to place the ventricular drain and pressure monitor in his skull took place on January 7, 2001. To rule out intra-abdominal injury a diagnostic peritoneal lavage was carried out on January 7, 2001, with an incision made below his navel.

Plaintiff was finally discharged on February 18, 2001, having been hospitalized for six weeks. Following his discharge from UC Davis Medical Center, Plaintiff was transferred to Sierra Gates Rehabilitation for initial head injury rehabilitation. On March 1, 2001, he was released to his parents’ custody.

BRAIN DAMAGE

Plaintiff suffered brain damage in the collision. On December 18, 2002, he was assessed by Alan E. Brooker, Ph.D., ABPP-CN, CRC, a clinical neuropsychologist. In his report, Dr. Brooker concludes the following:

“Thus, the pattern of neuropsychological test date reflects most difficulties are clearly delineated by auditory attention and concentration, delayed procedures (e.g., 18-second delay), but more profound difficulties were found with visual immediate memory, visual delayed memory, and auditory recognition delayed memory as measured by the WMS-3rd Edition.

Continue Reading ›

SECOND CAUSE OF ACTION

(Sexual Harassment in Violation of California Gov’t Code §12900 et seq. Against All Defendants and DOES 1-50)

25. Plaintiff repeats and realleges by reference each and every allegation contained in paragraphs 1 through 24 and incorporates the same herein as though fully set forth.

26. Defendants are employers in the State of California, as defined in the California Fair Employment and Housing Act (“FEHA”), California Government Code § 12926.

27. Defendants’ harassment of Plaintiff by Dan Black included inappropriate touching and sexual comments and sexual innuendo, on the basis of her gender constitutes a violation of the California Fair Employment and Housing Act, California Government Code § 12940 et seq. The sexual harassment Plaintiff endured was severe and/or pervasive, offensive and hostile. Further the work environment including lingerie parties and sexual-charged comments regarding customers and employees constitutes a sexually hostile work environment that Plaintiff was forced to endure.

28. Plaintiff is informed and believes, and based thereon alleges, that in addition to the practices enumerated above, Defendants may have engaged in other discriminatory practices against her which are not yet fully known. At such time as such discriminatory practices become known to her, Plaintiff will seek leave of Court to amend this Complaint in that regard.

29. On or about October 27, 2008, Plaintiff filed timely charges against Defendants with the California Department of Fair Employment and Housing (“DFEH”). True and correct copies of her charges are referenced herein. Within one year of the filing of this Complaint, the California Department of Fair Employment and Housing issued right to sue notices to Plaintiff authorizing this lawsuit. True and correct copies of the right to sue letters are referenced herein. Plaintiff has therefore exhausted her administrative remedies

Continue Reading ›

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

On February 3, 2000, Dr. W. finished his radiation treatments of Mr. Smith’s lower back skin lesion. He returned Mr. Smith to the care of Dr. X..

On February 23, 2001, Mr. Smith returned to Dr. W. for a follow-up visit. Dr. W. noted in part to his report to Dr. X.:

“The patient states he is doing well except he has a chronic sore over the low back. The patient will return to see Dr. X. regarding this in the near future. He will return to see Dr. X. as scheduled.”

The contents of Dr. X’s reports are referenced herein. The balance of Dr. W.’s records are referenced herein.

Under Dr. X.’s care the wound never healed. It became extremely painful. Dr. X. described it as an ulcer. Dr. X’s nurse recorded on December 21, 2001: “complains back hasn’t healed up since radiation.” The contents of these records are referenced herein.

Dr. X. used a number of drugs on Mr. Smith including various ointments, and Neurontin.

The pain from the back wound grew worse. William Smith’s family members described the wound as “infected, red, and foul smelling.”
When the pain grew unbearable, Dr. X. injected the open wound with 3 ml of Kenalog, a powerful steroid, on March 11, 2003.
Injecting an infected wound with a steroid has been described as “like throwing gasoline on a fire.”

Continue Reading ›

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
Eric Van Ostrand, M.D. Dr. Van Ostrand is a physician and a board-certified neurologist.He was retained by plaintiff. Dr. Van Ostrand’s report sets forth [plaintiff’s] diagnosis as follows:
a. Severe traumatic brain injury based upon clinical history and radiographic findings, sustained 04/28/07.
b. Mood instability, irritability causally related to traumatic brain injury.
c. Impaired short-term recall, causally related to the subject accident.
d. Impaired fine motor control and overall agility, causally related to traumatic brain injury.
e. Central nervous system radiographic findings documenting traumatic subarachnoid hemorrhage, multiple cerebral contusions and diffuse axonal injury.
f. Impaired right-sided hearing, causally related to subject accident based upon temporal relationship. Multiple potential etiologies. Further comment deferred to ENT specialist.

g. Possible early post-traumatic seizure. Abnormal EEG suggesting increased risk of epilepsy.

Continue Reading ›

On 01/06/01, Plaintiff sustained a severe closed-head injury with prolonged loss of consciousness. Intubation in the field was required. A CT scan of the brain revealed multiple punctuate hemorrhages in the right temporal, right occipital, and left temporal frontal areas, all of less than 1 cm in size.

Regarding Plaintiff’s future levels of personal achievement during the remainder of his life, it is probable that he will not achieve the levels of success and achievement he would have absent the brain injury of January 6, 2001.

It is probable that education past the high school level will be more difficult for Plaintiff as a result of his brain damage. As a result, it is likely that Plaintiff will eventually settle for a comparatively reduced post-high school level of educational achievement and training.

It is probable that Plaintiff’s future earning potential during the remainder of his life will be significantly reduced as a result of his cognitive impairments, as compared to his future earning potential absent those impairments. He will not perform as well on the job; he will have reduced abilities. Plaintiff will likely appear apathetic to others, and he will perform less well with co-workers and bosses than he would have absent the brain injury.

Continue Reading ›

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

On March 18, 2003, Mr. Smith called Dr. X. “wanting to know if it was possible to come in today for more shots because he is in a lot of pain.”

Family members were sure Dr. X. was making William Smith worse. They begged him to change doctors. He responded that he still trusted Dr. X..

His back wound was now so painful that he could hardly drive his car.

On March 19, 2002, Mr. Smith again saw Dr. X.. Dr. X’s nurse recorded that he was complaining of “severe pain.” Dr. X. prescribed Vicodin as needed for pain. He again injected plaintiff’s open wound with an additional 1 ml of Kenalog. Dr. Bock also had Mr. Fideldy on oral steroids. A copy of the record is referenced herein.

On March 21, 2002, Mr. Smith went back to Dr. X’s office with complaints of pain from the open back wound. Dr. X. increased his Vicodin and Neurontin. This would be Mr. Smith’s last visit to Dr. X..

When he returned home from Dr. X’s office on March 21, 2002, his ex-wife had to pull him from the car. He lay in a fetal position for 24 hours.

In the early morning hours of March 23, 2002, Mr. Smith’s ex-wife, Ms. Greene, could not stand to see him suffer anymore. She insisted on calling an ambulance. Plaintiff agreed. At 4:47 a.m., she placed a call for an ambulance.

Continue Reading ›

31. As a direct and proximate result of Defendants’ willful, knowing and intentional discrimination and sexual harassment against her, Plaintiff has further suffered and will continue to suffer a loss of earnings and/or other employment benefits and job opportunities. Plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial.

32. As a further, direct and proximate result of Defendants’ violation of California Government Code § 12900, et. seq. , as heretofore described, Plaintiff has been compelled to retain the services of counsel in an effort to enforce the terms and conditions of her employment relationship with Defendants, and has thereby incurred, and will continue to incur, legal fees and costs, the full nature and extent of which are presently unknown to her. Plaintiff will therefore seek leave of Court to amend this Complaint in that regard when the same shall be fully and finally ascertained. Plaintiff requests that attorneys’ fees be awarded pursuant to California Government Code § 12965.

33. Plaintiff is informed and believes, and based thereon alleges, that the outrageous conduct of Defendants described above was done with malice, fraud and oppression and with conscious disregard for her rights and with the intent, design and purpose of injuring her. Defendants participated, authorized, condoned and/or ratified the unlawful conduct of the other employees. By reason thereof, Plaintiff is entitled to punitive or exemplary damages from Defendants in a sum according to proof at trial.

THIRD CAUSE OF ACTION

(For Injunctive Relief Against All Defendants and DOES 1-50)

34. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 through 33 and incorporates the same by reference as though fully set forth herein.

Continue Reading ›

BACK INJURY

For months following the collision Plaintiff has complained of severe back pain. He has been seen by Christopher Molitor, M.D., an orthopedic surgeon recently for these complaints. On April 1, 2003, he diagnosed Plaintiff with chronic back pain.

Because Plaintiff continued to complain of severe back pain, an MRI was performed on May 1, 2003. The MRI showed the following:
1. Compression fracture of T-12.

2. End plate disc herniation at T-11 and T-12.

WAGE LOSS
Plaintiff has been evaluated by Timothy Sells, M.A., Vocation Rehabilitation Counselor regarding her future earning potential. Due to his brain damage and chronic back pain, Mr. Sells concludes that Plaintiff will experience a significant loss of earnings in the future.A.R. Gutowsky, Ph.D. economist, has calculated the present value of Plaintiff’s wage loss. His report concludes the following:
If Plaintiff returns to full-time employment, a present value wage loss of $519,000.
If Plaintiff returns to part-time employment, a present value wage loss of $1,047,000.
It should be noted that Plaintiff has attempted to return to work and has tried six different jobs. He has not been successful in keeping any of these jobs due to both cognitive deficits and chronic back pain.

Continue Reading ›

B. ABC Hospital:

Immediately upon arrival the emergency room the doctor noted a large “draining wound” on his back. Unlike Dr. X., the medical staff at ABC Hospital immediately realized that the back wound may be infected. Unlike Dr. X., the emergency room doctor started plaintiff on Ancef, an IV antibiotic. He was admitted to the hospital. Unlike Dr. X., a culture was ordered. Mr. Smith was neurologically intact. An assessment of his back wound was performed by a nurse. She noted the following:

“DATE 3/23/02
WOUND NUMBER I
STAGE III
COLOR Red
DRAINAGE Yellowish
ODOR Yes”

Dr. Y. was filling in for Mr. Smith’s regular doctor, Dr. V., M.D. Because of Dr. V’s absence, Dr. Y. became Mr. Smith’s attending physician.

Unlike Dr. X., Dr. V. felt the wound might be infected. He stated in his history and physical: “We will empirically treat with antibiotics. We will talk to Dr. U. to rule out osteomyelitis or skin cancer infiltrating the subcutaneous tissue with MRI scan of the back.”

Dr. Y. was concerned that an infection could spread to Mr. Smith’s blood stream, causing sepsis.

On March 24, 2002, Dr. Y. visited Mr. Smith. He noted that Mr. Smith could move all four extremities but had difficulty lifting his legs. In his deposition, Dr. Y. said he thought this was secondary to pain but it is not noted in his records. At that time Dr. Y. received results from the blood culture. Mr. Smith had sepsis. It was gram positive, meaning it was either strep or staph.

Continue Reading ›

35. cont.

Ms. Williams was required to lose weight by Defendants in order to perform her job bartending visibly with the public meeting a female sexual stereotype of looking rail-thin. Defendants claim they are within their rights to require weight loss of Plaintiff who is female.

36. Ms. Williams desires a judicial injunction to be returned to the front bar, visible to the public where she can perform her bartending duties as she did successfully prior to her 5-lb. weight gain. She has suffered irreparable harm of emotional distress, humiliation and has been denied her appropriate position.

37. A judicial injunction is necessary and appropriate at this time returning Ms. Williams to her rightful position at her work site. Such an injunction will avoid conflict between the parties and the possibility of a multiplicity of actions.

WHEREFORE, Plaintiff prays that judgment be entered in her favor and against Defendants as follows:

AS TO THE FIRST CAUSE OF ACTION:

1. That Plaintiff be awarded general and compensatory damages, including prejudgment interest, in an amount according to proof at trial;
2. That Plaintiff be awarded reasonable attorneys’ fees and costs of suit and interest incurred; and
3. That Plaintiff be awarded punitive or exemplary damages against Defendants in an amount according to proof at trial;

4. That this Court award such other and further relief as the Court deems just and proper.

AS TO THE SECOND CAUSE OF ACTION:

1. That Plaintiff be awarded general and compensatory damages, including prejudgment interest, in an amount according to proof at trial;

2. That Plaintiff be awarded reasonable attorneys’ fees and costs of suit and interest incurred; and.

3 That Plaintiff be awarded punitive or exemplary damages against Defendants in an amount according to proof at trial;
4. That this Court award such other and further relief as the Court deems just and proper.

Continue Reading ›