Personal Injury Lawyer Blog

Infected Child From Sacramento Sues Her Doctor, Part 3 of 4

August 9, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence 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’s Opposition Motion cont.

Burgess v. Superior Court, supra, 2 Cal.4th 1064, has no application to this action. Burgess is limited to the question addressed by the Supreme Court: Can a mother recover damages for negligent inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery? (2 Cal.4th at p. 1069.) The court went on to state: Because the professional malpractice alleged in this case breached a duty owed to the mother as well as the child, we hold that the mother can be compensated for emotional distress resulting from the breach of the duty. For public policy reasons that have been previously articulated by this court, however, these damages do not extend to emotional distress due to loss of affection, society, companionship or similar harm that the mother may incur in adjusting to and living with the child’s impairments. (Ibid.) This is not a birth injury case. This is also not a case where a physician or other health care provider has a duty owed to two patients at the same time as a obstetrician does in the case of a delivery. Burgess does not support a claim by Cindy Jones that she can recover damages for exposing her family to a contagious disease.

Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, also has no application here. There, the family member, the husband of the patient, sued based on the emotional distress he suffered when his wife, following the dictate of the health care provider, informed him that she had a sexually transmitted disease.

Sacramento Plaintiff Files Action For Brain Injuries, Part 5 of 9

August 9, 2009 | by Moseley Collins

(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.)

THE COURT SHOULD NOT ORDER BIFURCATION ON ITS OWN MOTION

Although defendants motion is untimely as discussed above, the Court retains discretion to order bifurcation on its own motion at any time when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby . CCP §§ 598; see also, CCP § 1048(b).

In the present case, none of these ends would be served by conducting two separate trials, one on liability and one on damages, for several reasons to be discussed below. First, however, it should be noted that plaintiff has no intention of calling an extensive number of the physicians who treated him. Indeed, Plaintiff plans to call only one of the doctors who treated him at Sacramento Medical Center and only one who treated him at Mercy Hospital. Each will be relatively short – no more than one hour of direct testimony and probably less. Moreover, as discussed further below, each of these doctors will be testifying on the issue of liability in any event, and would have to come back to testify a second time if the case were bifurcated.

Severe Birth Injury Due To Malpractice In Sacramento, Part 5 of 12

August 9, 2009 | by Moseley Collins

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

C.C.P. §340.5 GOVERNS DELIVERY MALPRACTICE AND EXTENDS THE LIMITATIONS PERIOD TO THE CHILD’S EIGHTH BIRTHDAY

It is firmly established that an infant’s claim for medical malpractice – whether the injury is prior to, contemporaneous with or subsequent to birth – is subject to the limitations period of C.C.P. §340.5, governing medical malpractice actions generally and medical malpractice actions by minors specifically, and that C.C.P. §340.4 has no bearing on such actions.

3 Witkin, Cal. Procedure 4th, Actions §542, discussing prenatal injuries, observes that C.C.P. §340.5, part of the Medical Injury Compensation Reform Act, does not expressly refer to former Civil Code §29 or C.C.P. §340.4, but supplants their period of limitations in medical malpractice actions. (Emphasis in original.) Haning, Flahavan, Kelly, et al., California Practice Guide – Personal Injury (Rutter 2006) §5:138, likewise states:

Neither C.C.P. §352 nor C.C.P. §340.4 applies to minors’ actions predicated on medical malpractice. Even if the claim alleges prenatal injury, the altogether different limitations period contained in C.C.P. §340.5 is controlling. [Young v. Haines (1986) 41 Cal.3d 883, 226 Cal.Rptr. 547; Photias v. Doerfler (1996) 45 Cal.App.4th 1014, 1018-1020, 53 Cal.Rptr.2d 202, 204-205]
Hence, C.C.P. §340.4 governs prenatal injuries from general negligence, products liability, etc., but not medical malpractice. It was enacted to abolish the common law rule that an unborn child has no independent existence and, therefore, no right of action for injuries suffered before its birth, but at a time when there was no distinction in limitations rules between medical malpractice and other negligence claims. Young v. Haines (1986) 41 Cal.3d 883, 892, 226 Cal.Rptr. 547. 5 Witkin, Summary Cal. Law 10th, Torts, §728, pg. 1053. The adoption of MICRA in 1975, with its distinct limitations rules, overrode any role that §340/4 might have had in medical malpractice cases.

Sacramento Woman Files Personal Injury Action Against Nursing Facility, Part 2 of 6

August 8, 2009 | by Moseley Collins

(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.)

FACTUAL SUMMARY cont.

She was thereafter taken by a friend and fellow Universal Home tenant to XYZ Hospital. She had fallen on her left side and was treated for injuries sustained in the fall. She was diagnosed with a left sided chest contusion. It caused her to have intractable left sided thoracic pain throughout her stay. [Declaration of Plaintiff Tammy Bauer] Ms. Smith was admitted to XYZ Hospital by her primary care and admitting physician Robert J., M.D.

After two days in the hospital, Ms. Smith developed and alteration of consciousness, including confusion and somnolence repeatedly trying to get out of bed. In addition, she developed seizures. Dr. J. asked for and received a neurology consultation with Nancy S., M.D. This was not a transfer of medical care to a new physician for a new problem but a simple consultation request by the admitting and primary treating physician.

Dr. S.’s initial exam occurred on April 30, 2005. [The foregoing references are to Dr. S.’s deposition.] The two reasons for the consultation were Ms. Smith’s confusion somnolence, or alteration in her level of consciousness and unexplained tremors she was having. Dr. S. diagnosed intermittent partial seizures. After consulting with the patient and plaintiff, Tammy Bauer, Ms. Smith was started on Dilantin, an anti-seizure medication.

Dr. S.’s evaluation was part of the care and treatment for the falls, not independent of that. Contrary to the basic theme of defendant’s Motion, care for the fall did not conclude at the time Dr. J. sought a consultation from Dr. S. Dr. S. considered the question of whether or not several reported earlier falls ending with the one that brought Ms. Smith to XYZ Hospital had been caused by the seizure disorder she had been asked to consult about.

Eyewitness To Sacramento Auto Accident Helps Victim, Part 2 of 5

August 7, 2009 | by Moseley Collins

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

It is noteworthy that the defendant did not produce any eye witnesses to dispute Ms. Diaz’s observations. The best that the defendant could say was that she wasn’t sure if she braked and that she didn’t remember hearing the screeching of tires that typically accompanies sudden braking. Not surprisingly, there was no evidence that the were any skid marks left by the defendant’s tires.

Simply because no ambulance was called to the scene and Ms. Hayes drove herself home does not establish, as defendant seems to think it does, that this was a minor accident. It is not an uncommon event for several hours or more to pass before pain from the accident caused injury manifests itself. Moreover, in her motion defendant neglects to mention that her car was totaled, with more than $9,600.00 in damages. The force of the impact was so great that plaintiff’s solid steel trailer hitch, which was bolted to the frame of the van, was cracked and pushed into the rear of the van sealing the rear door shut.

Defendant asserts that Dr. Kelkar’s unrebutted biomechanical accident reconstruction testimony established that plaintiff could not have been injured as she claimed. No trier of fact is required to accept expert testimony as gospel, even if unrebutted. (In re Marriage of Duncan (2001) 90 Cal. App. 4th 617.) [A]s a general rule, provided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.] [Citation.] This rule is applied equally to expert witnesses. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 890.)

Injured Sacramento Man Files Claim Against Police Officer, Part 4 of 9

August 7, 2009 | by Moseley Collins

(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.)

DEFENDANTS’ MOTION IS UNTIMELY
Code of Civil Procedure § 598 provides that a motion to bifurcate brought by a party must be noticed and set for hearing far enough in advance of the trial so that an order for bifurcation, if appropriate, may be obtained no later than the pretrial conference or, in other cases, no later than 30 days before the trial date. C.C.P. § 598;

Although the Court retains discretion to order bifurcation on its own motion, the notice and hearing deadline provided in CCP § 598 is no small matter. For example, in the present case, plaintiffs counsel have been preparing for trial and scheduling witnesses, including expert witnesses, for a single trial. Defendants never mentioned or hinted that they desired bifurcation until new counsel entered the case and this motion was filed. Notably, the motion was filed with the trial date imminent and with a hearing date for the motion on the trial date itself, June 6, 2008. This is well beyond the deadline for such motions specified in CCP § 598.

Equally significant is the fact that the Rules of Court provide that the issue of bifurcation, if desired or applicable, should be taken up months before the trial, at the Case Management Conference. (See California Rules of Court, Rule3.727(10).

In their Case Management Conference Statement filed for the Case Management Conference on June 20, 2007 nearly one year ago, Defendants mentioned nothing about seeking bifurcation, and specifically left blank the section of the CMC Statement that is to be checked where a party is contemplating bifurcation. Nor did defendants suggest they would seek bifurcation at either of the Case Management Conferences (June 20, 2007 and August 31, 2007). Clearly, the rules contemplate that such a motion be heard and ruled upon well before trial.

Medical Malpractice At Sacramento Hospital Leads To Birth Injury, Part 4 of 12

August 7, 2009 | by Moseley Collins

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

William Taylor describes his wife’s legs as still in the stirrups while she was being instructed to again push, after which the baby’s head popped out all the way to the neck before the shoulders. If a proper McRoberts position had been performed the mother’s legs would have not remained in the stirrups.

Mr. Taylor saw Dr. Y. grab the infant by the head, with her thumb on his forehead and a hand around his neck, and turn him to the left. She was holding her hands outside the body and around the neck area. She did not go inside the vagina. A photograph clearly depicts the infant’s head fully out of the vagina, facing upward, and shows the physician’s hands around the head and necks, fully outside the vagina. This does not depict the Woods maneuver described in the Delivery Notes. The maneuver described by the father, and depicted in the photograph is beneath the standard of care in that it allows excessive rotation of the neck, which can cause the Erb’s Palsy and brachial plexus injury that is described in Sean Taylor’s records. Mr. Taylor saw Dr. X. turn the baby to the left causing a popping sound, leading Mr. Taylor to believe that Sean’s neck may have been broken. Dr. Z. concludes that it is probable that this was the brachial plexus injury leading to the Erb’s Palsy suffered by Sean, caused by excessive force and improper traction on the head and neck during the delivery.

Critical to the hospital’s liability is the fact that the mother was not in the correct McRoberts position, but had her legs in the stirrups. The positioning of the mother for this procedure is the responsibility of the nurses, who assuredly should have recognized that the procedure was no being properly performed, and who assisted in this mangled form of delivery notwithstanding that the problems would have been evident to any obstetrics specialist present.

Sacramento Physician Sued For Negligence, Part 2 of 4

August 6, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence 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.

Defendnat’s Opposition Motion cont.

CINDY JONES CANNOT RECOVER FOR ANY ALLEGED LOSS OF HER DAUGHTER’S CONSORTIUM.

It appears that Cindy Jones is attempting to recover damages she allegedly suffered because her daughter became infected. This appears to be a loss of consortium claim. It is well-settled that a parent cannot recover damages for the loss of a child’s consortium. (Baxter v. Superior Court, supra, 19 Cal.3d 461.) The motion to strike should be granted.

CINDY JONES DOES NOT HAVE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
In the opposition, Cindy Jones asserts that she has a valid cause of action for negligent infliction of emotional distress ( NIED ) because Defendants failed to diagnose, treat and warn Plaintiffs of the impending danger to which she unknowingly exposed family members and the public. Plaintiff relies on Burgess v. Superior Court (1992) 2 Cal.4th 1064; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916; and Ochoa v. Superior Court (1985) 39 Cal.3d 159. These cases do not support a claim for negligent infliction of emotional distress by Cindy Jones.

Sacramento Auto Accident Results In Serious Injuries, Part 1 of 5

August 5, 2009 | by Moseley Collins

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

Plaintiff’s Opposition to Defendant’s Motion for a New Trial
The Court Should Not Grant a New Trial Because the Jury’s Verdict is Amply Supported by the Evidence
Motion for a New Trial Should Not be Granted Unless the Court is Convinced that the Jury Clearly Should Have Reached a Different Verdict

Code of Civil Procedure §657 provides, in pertinent part, that a trial court should not grant a motion for a new trial on the grounds of insufficiency of the evidence, “unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the… jury clearly should have reached a different verdict or decision.” In other words, while a trial court has wide discretion in ruling on a motion for a new trial, the use of the word clearly in §657 makes it evident that such a motion should not be granted unless the trial court is firmly convinced that the jury got it wrong. Simply put, there is no basis for such a finding in this case.

This was No Minor Accident
Citing her own motion, defendant complains that the jury verdict should be set aside because this was a minor accident, making it seem like a fender bender. Not so. Defendant seems to have forgotten, or at least forgotten to discuss, that there was an independent witness, Ms. Vilma Diaz, who had no prior relationship with either party, who witnessed the entire automobile accident unfold in front of her.

Man From Sacramento Sues Police Dept. For Head Injury, Part 3 of 9

August 5, 2009 | by Moseley Collins

(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.)

Mr. Santoro suffered a severe skull fracture, which caused substantial bleeding, bruising and swelling in his brain. He was in a coma, near death, for nearly a month. He had two operations in an attempt to relieve the bleeding, swelling and fluid in his brain. In the second operation it was necessary to remove parts of the temporal and frontal lobes of his brain. A total of ten centimeters of brain tissue had to be removed from Mr. Santoro’ frontal lobes (referred to as a lobectomy, the equivalent of a lobotomy. While Mr. Santoro’ life was saved, he has sustained permanent brain damage and will need life-long care. He was hospitalized for a total of over eight months and has incurred well over $1.5 million in medical bills. He has not returned to work and now lives with his parents and brothers, all of whom have assisted in his care.

At the very minimum this is a case of comparative fault and plaintiffs d images will clearly have to be litigated.