Personal Injury Lawyer Blog

Surgeons’ Mistakes At Sacramento-area Hospital Result In Brain Damaged Child, Part 11 of 11

June 26, 2009 | by Moseley Collins

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

3) Dr. X. testified that it took only 2 minutes to provide a surgical level of analgesia with a spinal anesthesia (between 11:08 am and 11:10 am). Plaintiff’s expert anesthesiologist will testify that despite the circumstances here of some elevated blood pressure, some indication of PIH, fetal distress, and an ASA of 2-3:
a) It was below the standard of care for Dr. X. not to provide a rapid sequence general anesthesia (which would have taken 2-3 minutes), and

b) It is impossible that the spinal took only 2 minutes. Instead, such anesthesia would have required at least 7-10 minutes to conduct. If the spinal took longer to take effect than Dr. X. has been willing to admit, the difference in the time it took to complete it, compared with general anesthesia, was a significant factor in this child’s catastrophic birth injury outcome.

DAMAGES:

The reports of plaintiff’s expert pediatric physiatrist, Amy Morris, MD, and the expert pediatric neurologist, Dr. William Samuels, have been provided. Further, the Life Care Plan of Karen Collins, RN, and the economic report of Peter Steiners, Ph..D. have also been provided. Based on the medical condition of Martha Cruz and the level of care required for proper care at home, including a gastrostomy feeding tube and the high probability that she will require a tracheostomy, Plaintiff’s experts have testified that she will require 24-hour LVN care, plus other medical expenses. There is no off-set for Medi-Cal payments now or in the future, under current case law. Based on a markedly reduced, but probable, life expectancy of 30 additional years, the present cash value of her life care plan is $11.5 million per plaintiff’s economist, or $9.2 million per the defendant’s economist. Additionally, there are future loss of earnings in the range of a present cash value of $750,000 to $1,000,000.

Hospital Employee From Roseville Claims Workplace Discrimination, Part 7 of 8

June 26, 2009 | by Moseley Collins

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

Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, as a matter of good judgment, be receptive to constructive criticism offered by their employees. 461 U.S., at 149, 103 S.Ct. 1684. The dictates of sound judgment are reinforced by the powerful network of legislative enactments-such as whistle-blower protection laws and labor codes-available to those who seek to expose wrongdoing. See, e.g., 5 U.S.C. § 2302(b)(8); Cal. Govt.Code Ann. § 8547.8 (West 2005); Cal. Lab.Code Ann. § 1102.5 (West Supp.2006) … These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions.

Further, Defendant’s argument that Plaintiff has no legal protection for reporting illegal practices because such reporting was an essential part of her job duties turns logic and law upside down. If Defendant’s position were accepted, it would mean that the very employee charged with reporting illegal activity would have no incentive to make a report because the employee would not be protected from retaliation for reporting the illegal conduct. Fortunately, and not surprisingly, California law does not abandon those employees most in need of legal protection, i.e., those who by virtue of their position must report illegal activity. See e.g. Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 79 (public policy termination claim properly stated by quality control inspector who complained about unsafe conditions on airplane despite that the quality control inspector, like Plaintiff here, was simply doing his job);

Wrongful Termination Action Filed Against Sacramento Strip Club, Part 6 of 7

June 25, 2009 | by Moseley Collins

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

THIRD CAUSE OF ACTION

(Unlawful Retaliation in Violation of Gov’t. Code §12900 et seq. By All PLAINTIFFS Against All Defendants)

39. PLAINTIFFS repeat and reallege the allegations contained in paragraphs 1 through 38 and incorporates the same by reference as though fully set forth herein.

40. DEFENDANTS, and each of them, illegally retaliated against PLAINTIFFS for objecting to and protesting the sexual harassment and discrimination perpetrated by DEFENDANTS in violation of the California Fair Employment & Housing Act, Gov’t. Code §12900 et seq.

41. PLAINTIFFS are informed and believe and based thereon allege that Defendants, and each of them, cannot articulate any legitimate, business-related reason or bona fide occupational qualification to excuse their conduct.

42. PLAINTIFFS are informed and believe and based thereon allege that in addition to the practices enumerated above, Defendants, and each of them, may have engaged in other discriminatory practices against them which are not yet fully known. At such time as such discriminatory practices become known to them, PLAINTIFFS will seek leave of Court to amend this complaint in that regard.

Husband And Sister Sue For Wrongful Death At Sacramento Hospital, Part 4 of 6

June 24, 2009 | by Moseley Collins

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

The mother in Wilks was not present at the exact moment of the specific act of negligence In Wilks, the child was injured; but the mother could claim emotional distress because of a continuing event. Consequently, the defense argument that the Plaintiffs’ must view a specific act of negligence That argument is not valid; because it assumes a singular event. Here, the husband and sister were certainly present and sensorially aware of the decedent’s injuries.

Further, the Supreme Court in Ochoa v. Superior Court (1985) 39 Cal.3d 159, disapproved the argument that required a sudden, brief occurrence viewed contemporaneously by the plaintiff (the exact moment argument): Our review … leads us to the conclusion that the sudden occurrence requirement is an unwarranted restriction on the Dillon [Dillon v. Legg (1968) 68 Cal.2d 728] guidelines. Such a restriction arbitrarily limits liability when there is a high degree of foreseeability of shock to the plaintiff …. (Ochoa, supra, 39 Cal.3d at p. 168.) In Ochoa, the decedent was a thirteen year old male who died after an ongoing illness while in the infirmary of juvenile hall and this ongoing illness was witnessed by Gloria Ochoa, his mother. Gloria Ochoa viewed the symptoms of her child’s decline in health. The Supreme Court found that contemporaneous observation can include the viewing of lack of medical care:

We are satisfied that when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness of the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted. (Ochoa, supra, 39 Cal.3d at p. 170.) Contrary to the defense, the husband and sister here can claim emotional distress for the Defendants lack of proper treatment of the decedent.

Delayed Anesthesia At West Sacramento Medical Facility Results In Birth Injury, Part 10 of 11

June 24, 2009 | by Moseley Collins

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

Dr. Stuart X.

1) Although Dr. X. testified that he didn’t recall ever seeing Ms. Cruz in L&D on October 5, the L&D nursing notes clearly place him there at 10:32 am. The notes also clearly demonstrate that he was needed in the OR for Ms. Cruz. The notes do not indicate what Dr. X. was told regarding patient status, but assuming he was aware that the patient was in distress, he had an obligation to do whatever was reasonable to insure that the Cesarean section was done as quickly as possible. Dr. X. testified that he did nothing until being instructed by Dr. U.. Given that Dr. X. had been called for Ms. Cruz in L&D and was at her bedside under circumstances in which a CRASH Cesarean section had been called, he had an absolute responsibility to assist in getting a surgeon to operate sooner than Dr. U. became available – which did not occur at least until 10:52 am and probably later. This was particularly so if Dr. X. was the physician identified by Amanda Cruz who claimed to know about surgery ongoing in the main OR and yet refused to have the patient transferred or pursue alternative options to get Ms.Cruz delivered. According to the deposition of Dr. Z., he likely had remained in the main OR until at least 10:40 am (following surgery that ended at 10:25 am).

2) L&D nursing had documented on the fetal monitor tracing at 10:52 am, that Dr. U. had requested general anesthesia but that Dr. X. insisted on a spinal. This tracing never was transferred with the patient to the main OR.

Workplace Discrimination Action Filed Against Roseville Healthcare Provider, Part 6 of 8

June 24, 2009 | by Moseley Collins

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

Foundation argues that Smith was terminated for legitimate reasons, cannot prove otherwise by showing that the reasons were pretext for retaliatory animus, and therefore it should prevail on summary judgment. As Smith’s claim is a state law claim for retaliation, the California Court of Appeal decision in Mamou v. Trendwest Resorts Inc. (2008) 165 Cal.App.4th 686, is directly on point. As clarified by the Mamou court, while pretext is certainly a relevant issue…the central issue…whether the evidence as a whole supports a reasoned inference that the challenged action was the product of retaliatory animus. (Id. at 715.) At the summary judgment stage, the court’s duty is to determine whether the employee’s evidence is too weak to sustain a reasoned inference in the employee’s favor. (Id. at 718.) If reasonable competing inferences may be drawn from the facts, summary judgment should be denied. Adickes v. S.H. Kress & Co., supra, 398 US at 157; Lake Nacimiento Ranch Co. v. San Luis Obispo County (9th Cir. 1987) 841 F2d 872, 875.

In this case, while a jury could draw a reasoned inference that the very close proximity in time between Plaintiff’s complaints and her termination was coincidental, the jury could also draw a reasoned inference that the proximity between the two acts was evidence enough of retaliatory animus. Fisher v. San Pedro (1989) 214 Cal.App. 3d 590, 615 (one may infer retaliation by the proximity in time between protected activity and the allegedly retaliatory employment decision.)

Waitresses At Sacramento Gentlemen’s Club Claim Sexual Harassment, Part 5 of 7

June 23, 2009 | by Moseley Collins

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

SECOND CAUSE OF ACTION

(Employment Discrimination on Account of Sex in Violation of Gov’t. Code §12900 et seq. By All PLAINTIFFS against all DEFENDANTS)

30. PLAINTIFFS repeat and reallege the allegations contained in paragraphs 1 through 29 and incorporates the same by reference as though fully set forth herein.

31. DEFENDANTS, and each of them, illegally discriminated against PLAINTIFFS by discriminating against them on account of their sex during the course of their employment, terminating her employment, in violation of the California Fair Employment & Housing Act, Gov’t. Code §12900 et seq.

32. PLAINTIFFS are informed and believe and based thereon allege that DEFENDANTS, and each of them, cannot articulate any legitimate, business-related reason or bona fide occupational qualification to justify or excuse their conduct.

33. PLAINTIFFS are informed and believe and based thereon allege that in addition to the practices enumerated above, Defendants, and each of them, may have engaged in other discriminatory practices against them which are not yet fully known. At such time as such discriminatory practices become known to them, PLAINTIFFS will seek leave of Court to amend this complaint in that regard.

34. At all times during the employment relationship, PLAINTIFFS performed their duties in a highly satisfactory, competent and diligent manner.

Roseville Healthcare Provider Sued For Wrongful Termination, Part 5 of 8

June 22, 2009 | by Moseley Collins

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

While working at Foundation North Side, Ms. Lane made frequent complaints to upper management, including officers and managing agents such as Oliver Browne and Ethan Jones, regarding the failure of Foundation to address serious patient and staff safety issues. None of Ms. Smith’s complaints received any substantive response, other than her termination. The subjects of these complaints included:

* OSHA violations including concerns about frequent blood splashes and gastric juices deposited on nurses and the failure of Kaiser to install necessary OSHA required eyewash stations.

* The continued use of non-safety needles to avoid accidental punctures of staff.

* Toxicity of a new facility at Richmond and a manager’s withholding of the report of work that was being done to correct that toxicity found in the Forensic Analytical report commissioned by Charles Smythe to the employees in the building.

* The loss by Sam White of Personal Air Purification Respirators given to Roseville to protect staff and patients from airborne pathogens and would not find them.

* The lack of fit testing for N-95 respirators at the Roseville facility.

* The placement of tuberculosis patients in non-quarantined rooms, in the general patient population and released back out into the general population, including a 14-year-old child who had tuberculosis and whose mother was a Registered Nurse and whose father came contact with about 500 people daily. Those patients that were quarantined were placed in isolation rooms many of which did not work because air exchange testing had not been performed on an annual basis as is required. In another instance, in 2006, a tuberculosis patient was released by a Registered Nurse to get on a bus and released into the general population.

Patient’s Death At Sacramento Hospital Basis For Malpractice Action, Part 3 of 6

June 21, 2009 | by Moseley Collins

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

STATEMENT OF FACTS

On or about January 8, 2003, at about 1:30 p.m., JAMES PATEL was present in the emergency room when Sundari Patel bled excessively so that Sundari’s bed, arms and legs were drenched in blood. JAMES PATEL requested that Sudari be cleaned. A nurse cleaned Sudari. Thereafter she was transferred to another room. At about 4:00 p.m., Sundari’s bed again was covered with blood. JAMES PATEL again asked that Sundari be cleaned. Again a nurse cleaned her. At about 7:00 p.m. Sundari was taken for a CT scan. An hour later, Sundari was again drenched in blood. At about 9:00 p.m., JAMES PATEL saw Sundari and she was again suffering from excessive bleeding. The health care providers indicated that they were not concerned by the excessive bleeding.

Plaintiffs became worried, upset, concerned and emotionally distressed at the condition of Sundari. While in the hospital Plaintiffs were aware injury was being caused to the decedent because of the presence of excessive amounts of blood and the fact that the health care providers indicated that they were not concerned by the bleeding. Sundari was suffering a continuing injury. Plaintiffs were at the scene of the injury producing events and they knew decedent was being caused injury because of the presence of excessive amounts of blood.

THE PLAINTIFFS HAVE COMPLIED WITH THE ELEMENTS OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS PURSUANT TO THING

JAMES PATEL and MARI SINDHURI properly testified to all the elements of negligent infliction of emotional distress pursuant to Thing v. LaChusa (1989) 48 Gal.3d 644. They explicitly alleged they (1) are closely related to the injury victim; (2) were present at the scene of the injury-producing event at the time it occurs and were then aware that it is causing injury to the victim; and (3) as a result suffered serious emotional distress. (Id., 48 Cal.3d p. 667-668.)

Contrary to the motion for summary adjudication, the decedent’s husband, JAMES PATEL, and sister, MARI SINDHURI were present for the injury producing event when they witnessed the excessive bleeding by the decedent. Contrary to the motion for summary judgment, viewing the excessive bleeding is not merely viewing a symptom. The moving papers have absolutely no authority that only viewing the symptoms only is not sufficient. In Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178, the Court of Appeal stated that a wife who witnessed her husband’s bleeding and deprivation of oxygen but actually could not see the full extent of the deprivation of oxygen, can state a cause of action for emotional distress for witnessing the event which was still occurring :

Sacramento-area Physicians’ Negligence Causes Birth Injury, Part 9 of 11

June 21, 2009 | by Moseley Collins

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

6) Substandard care to have given Terbutaline at 10:20 am, whether ordered by Dr. U. or not, given the likelihood that the placenta was abrupting (based on irritable uterus, abdominal pain and frequent, small decelerations occurring every minute), as this medication causes a vaso-dilation which aggravated perfusion to the fetus, contributing to ischemia of the fetus. From this point until delivery, the fetus was under increasing fetal distress and hypoxia from decreased placental perfusion.

7) L&D nursing notes indicate that the anesthesiologist was at the patient’s bedside at 10:32 am. At deposition, Dr. X. denied having seen the patient in L&D. Yet, spinal analgesia was not administered until 11:08 am, 36 minutes after the note suggests that the anesthesiologist was at bedside. L&D nursing personnel had an absolute duty to discuss the case with Dr. X., to obtain a surgeon and run the CRASH Cesarean section given circumstances in which they obligated Dr. U. to deliver the breech patient without having informed Dr. D. of his commitments, and having failed to contact other available OB/GYNs to avoid any further delay in the delivery of Ms. Cruz.

8) Failure to properly interpret the fetal monitor tracing at 10:52 am, leading to a reticence on the part of L&D nursing personnel to pursue the Cesarean delivery of Ms. Cruz on a CRASH or STAT basis. In fact, the external monitor demonstrated a doubling of the FHR (as it was known to do when the FHR became exceedingly low) while L&D personnel assumed that the FHR was once again within normal limits. While L&D personnel acted as if the fetus had recovered, the fetus was likely becoming further de-compensated with a baseline of 65-75 bpm at that time, culminating in an absent FHR at 11:07. If, at 10:52 am, L&D nurses informed Dr. X. that the FHR had stabilized with variability in the range of 130-155 bpm” causing him to defer anesthesia or to assume he had the time to administer spinal analgesia, then they fell below the standard of care in the community. Further, there was a failure to actively monitor the fetus following transfer from L&D. Between 10:52 am and 11:10 am, a period of 18 minutes, no fetal monitoring was conducted. During this period, there is a total absence of the mother’s pulse documented in the chart, suggesting that L&D nursing personnel never considered that the apparent change in the fetal heart rate was in fact evidence of the mother’s heart rate instead..