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.
NEGLIGENCE OF THE MOTHER CANNOT BE IMPUTED TO THE MINOR PLAINTIFF
It has long been the law in the State of California that the contributory negligence of the parent is not imputable to the minor child. This doctrine was first established in Morningred v. Golden State Company, Ltd. (1961) 196 Cal.App.2d 130. In Morningred a milk truck delivery driver ran over a four year old girl on a tricycle. The defense attorney wanted to evidence statements that the mother said her child was always hard to control and leaving the yard. The court held that such testimony was inadmissible since it was clearly prejudicial. The contributory negligence of the parent is not imputable to the minor child. (Morningred v. Golden State Company, Ltd. supra, 196 Cal.App.2d 130, 138.) (See Part 4 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.