Malpractice At Sacramento Hospital Leads To Wrongful Life Action, Part 8 of 10

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


As stated above, plaintiff’s contend that not only is Dr. Brown’s conduct imputed to Universal Hospital but the conduct of all subsequent tortfeasors should be imputed as well. Their contentions are incorrect.

The seminal case for subsequent medical treatment liability is Ash v. Mortensen (1944) 24 Cal.2d 654. The California Supreme Court in Ash held that the tortfeasor responsible for the original injury to plaintiff remained jointly and severally liable for injuries occurring during subsequent medical treatment for those injuries. This determination was based on a proximate cause analysis whereby the aggravated injury resulting from subsequent negligent medical treatment was considered foreseeable and a “normal part of the aftermath” of the original injury. (Id. at p. 657; Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1606.) As a consequence, the original tortfeasor becomes jointly and severally liable to plaintiff for those additional, subsequent injuries. (Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 1201-1203.)

In that regard, CACI Instruction No. 3929 provides:

If you decide that [defendant] is legally responsible for [plaintiff]’s harm, [he/she/it] is also responsible for any additional harm resulting from the acts of others in providing aid that [plaintiff]’s injury reasonably required, even if those acts were negligently performed. (Emphasis added.)

But the foregoing legal principals presuppose that the original tortfeasor caused bodily injury to plaintiff that necessitated subsequent (negligent) medical care. The exact language utilized by the court in Ash v. Mortensen is critical in that regard:

It is settled that where one who has suffered personal injuries by reason of the tortious act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment and holds him liable therefore. (Ash v. Mortensen, supra, 24 Cal.2d at p. 657.)

Absent bodily injury for which subsequent negligent medical care becomes foreseeable, the causation chain between the original tortfeasor and the alleged subsequent medical providers is broken and no liability attaches to the original tortfeasor. There is no bodily injury or aggravation here.

Consequently, the underlying basis for plaintiff’s’ improperly-collapsed merger of ostensible agency and subsequent medical treatment liability theories fails. (See Part 9 of 10.)

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

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