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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 medical malpractice/personal injury case and its proceedings.)

Unconscionability

As noted above, to obtain the benefits of C.C.P. Section 1295 and avoid challenges based on being a contract of adhesion and/or unconscionable, Defendant Black was required to comply with subdivision (e) which provides: Such a contract is not a contract of adhesion, nor unconscionable nor otherwise improper, where it complies with subdivisions (a), (b), and (c) of this section. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant Black’s arbitration agreement fails to comply with subdivisions (a) and (c).

The unconscionability analysis begins with determining if the contract is one of adhesion. Armendariz v. Foundation Health Psychare Services, Inc., (2000) 24 Cal.4th 113, citing Graham v. Scissor-Tail, Inc, (1981) 28 Cal. 3d 807. An adhesion contract is one in which the drafting party with superior bargaining power gives the subscribing party only the opportunity to adhere to the contract or reject it. Armendariz, supra, 24 Cal, 4th 113, citing Neal v. State Farm Ins. Cos. (1961) 188 Cal. App. 2d 690, 694. These restrictions apply to healthcare providers.

Once a contract is determined to be adhesive, then two judicial limitations are placed on its enforcement. First, the contract will not be enforced if it does not meet the reasonable expectations of the adhering party. Second, even if the reasonable expectations of the adhering party are met, the contract will not be enforced if it is unconscionable. Armendariz. supra, 24 Cal. 4th 113, citing Scissor-Tail.Inc. supra, 28 Cal 3d 807.

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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 birth injury/personal injury case and its proceedings.)

The Expert Evidence About the Defendant’s Multiple Breaches of the Standard of Care

Defendant Dr. Lee breached the standard of care in three significant ways. First, she failed to obtain complete information from the nurse concerning the status of the labor and delivery at 17:00. The standard of care for a physician, whether resident or attending, required the physician to learn from the nurse the data that is necessary for the physician’s own diagnosis and assessment of the fetal status. She cannot rely only upon the nurse’s interpretation of the data. Also, the standard of care required a physician to monitor Ms. Jackson closely, because of her pre-eclampsia and gestational diabetes. By failing to ask for specific information, the defendant failed to fulfill that duty.

Second, if the defendant had asked for and obtained accurate data about the status of the labor, then the standard of care required her to understand that the fetus was having severe variable decelerations, diminished variability, fetal tachycardia and that the fetus was at risk for hypoxia. The standard of care would have required the physician to order the Pitocin to be turned off, and to assess the fetus’s status immediately and personally. Instead, the defendant waited another 22 or 23 minutes before examining Ms. Jackson. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Third, the standard of care required the defendant to deliver the baby immediately – as rapidly as she could get to Ms. Jackson’s room after the 17:00 telephone call, which the defendant physician testified took only a couple of minutes.

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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 personal injury cases present such issues to the court.

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

LEGAL ARGUMENTS

Plaintiff’s Complaint is Barred by the Statute of Limitations.

A complaint is subject to a demurrer under Code of Civil Procedure section 430.10, subparagraph (e), if the facts alleged in the complaint and matters of which the court is entitled to take judicial notice show the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995; Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The statute of limitations for medical malpractice claims is set out in Code of Civil Procedure §340.5. It provides, in pertinent part:

In an action for injury or death by a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through use of reasonable diligence should have discovered, the injury, whichever occurs first. C.C.P. §340.5.

The plaintiff’s complaint does not specifically set forth the date of death of her mother; however, in each cause of action it is stated that the plaintiff was caused harm on September 27, 2007. The Coroner’s Report states that Ms. Miller died on that date.

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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 personal injury cases present such issues to the court.

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Direct Victim Analysis Is Inapplicable to Plaintiff Timothy Lee.

Plaintiffs argue that Timothy Lee is a “direct victim,” thereby entitling him to damages based upon a cause of action for NIED. Plaintiffs inappropriately rely on Burgess v. Superior Court, (1992) 2 Cal.4th 1064. In Burgess, the Supreme Court held that a mother could claim emotional distress damages as a direct victim of medical negligence which injured her baby during the birthing process. The Court’s rationale was based on the physician-patient relationship that gave rise to a duty owed to the mother which encompassed medical care rendered to both her and her fetus. As the Court stated:

It is in light of both these physical and emotional realities (the court was referring to the altruistic physical and emotional connection between a woman and her fetus. (Burgess at 1076)) that the obstetrician and the pregnant woman enter into a physician-patient relationship. It cannot be gainsaid that both parties understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother. Id. at 1076.

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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 personal injury cases present such issues to the court.

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

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

DR. STRONG IS NOT QUALIFIED TO RENDER EXPERT OPINION TESTIMONY AS TO THE STANDARD OF CARE APPLICABLE TO DEFENDANTS

To prevail against Defendants in this professional negligence action, Plaintiff has the burden of proving that Defendants’ care and treatment fell below the standard of care, and further, that Defendants’ conduct, if below the standard of care, caused or substantially contributed to Plaintiff’s alleged injuries. The prevailing standard of care applicable to defendants can be introduced only through the use of qualified expert testimony. Flowers v. Torrance Memorial Medical Center, 8 cal.4th 992 (1994); Munro v. Regents of the University of California, (1989) 215 Cal.App.3d 977, 983-984; and Jones v. Ortho Pharmaceutical Corp. (1985) 63 Cal.App.3d 396, 402. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

The requisite standard of care is determined by the applicable standard of care that exists in a particular professional community. Barton v. Owen (1977) 71 Cal.App.3d 484. Thus, a health care provider is only required to exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances Mann v. Cracchiolo, (1985) 38 Cal.3d 18, at 36.

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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 present such issues to the court.

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

UNCONTRADICTED EXPERT TESTIMONY ESTABLISHES THAT THE CARE AND TREATMENT RENDERED BY DR. LEE WAS WITHIN THE STANDARD OF CARE AND DID NOT CAUSE PLAINTIFF’S ALLEGED INJURIES

The Accepted Standard of Care in Medical Malpractice Actions Must Be Established By Qualified Experts.

In a medical malpractice action based on professional negligence, a plaint must establish the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; a breach of that duty; a proximate causal connection between the negligent conduct and the resulting injury; and actual loss or damage resulting from the professional’s negligence. Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230. When the defendant is accused of failing to adhere to accepted standards of practice, such standards may be established only by qualified expert testimony. Stephenson v. Kaiser Foundation Hospital (1961) 203 Cal.App.2d 631, 635.

Specifically, the inherent nature of a medical malpractice action, along with the applicable standards of care, involve subject matter that is beyond the competency of laymen to address and therefore, must be addressed by a qualified expert. Landeros v. Flood (1976) 17 Cal.3d 399, 410.

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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 personal injury cases present such issues to the court.

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

Code of Civil Procedure §662.5(b) provides in pertinent part as follows:

In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion:

b) If the ground for granting a new trial is excessive damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In deciding a motion for new trial on excessive damages, the court has the power (and the responsibility) to reweigh the evidence:

A new trial shall not be granted upon the ground of … excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. [CCP § 657]
In Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 CA4th 359, the jury awarded one plaintiff $300,000 in economic damages and the second plaintiff $250,000 in an employment discrimination case.

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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 medical malpractice/personal injury case and its proceedings.)

In the present case, Defendant Black’s insertion of Article 2 into the arbitration agreement contradicts and undercuts the clear understanding of the consequences that patients were intended to obtain from subdivisions (a) and (c) of Section 1295. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

With regard to Section 1295 subdivision (a), both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. Yet Article 2 provides for the Filing by Physician of any action in Court to collect any fee from patient…. The addition of this Article 2 language to the agreement by Defendant Black undermines the communication of significant contractual consequences to the patient. The language muddles the clear understanding sought by the legislature with C.C.P. Section 1295, and is only inserted to provide a loophole out of arbitration for healthcare providers like Defendant Black.

With regard to subdivision(c), the arbitration agreement governs all subsequent open-book account transactions for medical services for which the contract was signed. Yet Article 2, again, undermines the communication of the significant contractual consequences to the patient. Are all subsequent open-book account transactions for medical services for which the contract was signed governed by the arbitration clause, or is there an exception for claims brought by Defendant Black to collect fees from the patient?

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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 birth injury/personal injury case and its proceedings.)

If defendant Lee had asked, she would have learned that the variable decelerations were worsening (lower heart rate and longer duration) and the baseline was increasing and the variability was diminishing. A baseline increasing means that the fetus’s heart rate was getting faster when not in deceleration (fetal tachycardia). Here, the fetus’s heart rate had increased as high as 170 beats per minute from a previous normal baseline of approximately 150 beats per minute. This increase is indicative of fetal hypoxia (oxygen deprivation). Also, defendant Lee would have learned crucial information that the variability was diminishing as well, which is also indicative of hypoxia. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

At this point (17:00), Ms. Jackson’s condition required that the Pitocin be discontinued. Continuing the Pitocin in light of Ms. Jackson’s fetal monitoring changes is contraindicated, because uterine contractions decrease blood flow to the fetus. Pitocin has the effect of increasing the strength of the contractions. Pitocin should be discontinued if there is fetal distress. Lee did not order the Pitocin to be discontinued at 17:00. In fact, a nurse turned the Pitocin off, but waited about another 20 minutes before doing so.

At 17:18, a nurse telephoned defendant Dr. Lee once more and reported that there were variable decelerations that were deeper with a slower return to baseline. Most probably, to a reasonable degree of medical probability, these variable decelerations were the result of prolonged administration of Pitocin, or umbilical cord compression, or a combination of both. Defendant Lee, after five hours since her last visit with Ms. Jackson, at last went to examine her at 17:22 or 17:23. Three minutes earlier, however, the baby developed fetal bradycardia (a slow heart rate in the fetus). A normal fetal heart rate is 120 to 160 beats per minute. George’s heart rate had slowed to 80 to 90 beats per minute.

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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 personal injury cases present such issues to the court.

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

THE VERDICT

The matter was submitted to the jury on February 5, 2008. On or about February 5, 2008, the jury rendered the following Special Verdict:

Past Medical Expenses: $15,221.75
Past Lost Earnings: $28,686.00
Future Medical Expenses: $720.00
Future Lost Earnings: $4,250.00
Past Pain and Suffering: $190,000.00
Future Pain and Suffering: $80,000.00
Total: $318,877.75

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

In light of the evidence that plaintiff suffered only soft tissue injuries from the accident and had only $15,221.75 in past medical expenses defendant maintains that the jury award for past pain and suffering in the amount of $190,000 as well as the award for future pain and suffering in the amount of $80,000 was extremely excessive, and unsupported by the evidence. A new trial is warranted under the circumstances.

AUTHORITY
Code of Civil Procedure §657 outlines the basis for granting a new trial. In pertinent part, it provides:
The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

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