Personal Injury Lawyer Blog

Parents Of Brain Damaged Roseville Boy Sue Physician, Part 2 of 3

June 11, 2009 | by Moseley Collins

THE PARENTS’ QUALITY OF CARE FOR THE CHILD IS IRRELEVANT

The defense has no admissible testimony that the quality of care given to the minor child by his parents has in any manner contributed to the condition from which the child suffers. The child’s suffering and severe brain damage has not been caused or contributed to by the care of the parents.

Further, it is irrelevant whether the parents provide the extraordinary care necessary for this child or hire an outside attendant to do so. The fact that the parents may voluntarily choose to devote some or all of their lives to providing the extraordinary level of attendant care services required by the minor Plaintiff in this case does not, and should not, insulate the defendant from being liable for the reasonable value of nursing attendant care services required by this child solely as the result of the defendant’s negligence.

It would be confusing for the defense to suggest to the jury that the parents/relatives may, at no cost, provide those services and misleading to the jury in view of the current state of the law regarding Plaintiff’s damages as referred to earlier under the case of Hanif v. Housing Authority, supra, 200 Cal. App.3d at 644 (see discussion below).

Additionally, requiring the jury to deliberate in order to calculate the number of hours of future care that would be provided by the relatives versus an outside hired nurse [where both are entitled to the same compensation] would necessitate an undue and totally unnecessary consumption of time.

Medical Malpractice Suit Against Sacramento Physician, Part 2 of 4

June 10, 2009 | by Moseley Collins

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

Question: Are medical malpractice plaintiffs eligible to recover prejudgment interest on their jury award when their statutory offer to settle has been rejected?

A. Prejudgment Interest of $120,384.75:

Plaintiff is entitled to Prejudgment interest, at the rate of 10% per annum pursuant to Civil Code Section 3291. Prejudgment interest is calculated from November 24, 2003 [to February 4, 2005 (427 days)], which is the date of Plaintiff’s first C.C.P. Section 998 offer to compromise for $400,000, which was not accepted by the defendant KENNETH B., M., D. and was then exceeded by the jury’s verdict.

Plaintiff received a more favorable verdict against Dr. B., after the Code of Civil Procedure §998 offer. The present cash value of that verdict was $3,998,800, as found by the jury in its Special Verdict:
Ques. 3 (a): $ 53,300: Past Economic Loss.
(b): $145,500: Future Economic Loss
(C): $3.8 million for loss of love, companionship, training and guidance

Total: $3,998,800.

B: Reduction Of Non-Economic Damages from $3.8 Million To $830,250:

The non-economic damages of $3.8 million is reduced to $830,250, which is the present value in 2005 dollars of the MICRA limitation provided for in Civil Code § 3333.2 of $250,000. The declaration of Peter Formuz has been provided, and it states that since the MICRA cap of $250,000 was first legislated in 1975, it has not kept up with either inflation or the cost of living in the ensuing 29 years; and, based on the CPI index, the purchasing power of money has diminished greatly since 1975.

Dr. Formuzis states that a judgment against a health care provider in 1975 for $250,000 in non-economic damages would require the sum of $830,250 in 2005 to provide the same purchasing power as $250,000 in 1975 dollars.

Operating Room Mismanagement Results in Roseville Child’s Birth Injury, Part 4 of 11

June 10, 2009 | by Moseley Collins

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

On arrival at Regional Medical Center, the systolic pressure on Ms. Cruz was 138. Her blood sugar was relatively low. Nursing personnel were aware of a history of pregnancy-induced hypertension (PIH) but it had not been treated earlier by anyone. A fetal monitor was placed at 9:00 am. L&D nursing wrote that variability is non-reassuring and referred to the contraction pattern as very irritable.” The fetal heart baseline was holding just at 120 beats per minute (bpm). By 9:10 am, Ms. Cruz was placed on oxygen by mask and changes in position were made in order to better oxygenate the fetus. In anticipation of Cesarean delivery, nursing personnel had Ms. Cruz sign a consent for Cesarean section at 9:10 am. At 9:15 am, nursing personnel called Dr. U. and reported their concerns. Dr. U. ordered an emergency Cesarean section (per L&D nurses) and a STAT Cesarean section (per his own notes) over the telephone and indicated he was en-route. He asked for a PIH panel (blood test) and requested that the patient be placed on magnesium sulfate to avoid seizing. L&D charge nurse, Gabrielle E., RN, testified that she spoke with personnel in the main OR at 9:15 am and gave them a heads-up for an anticipated Cesarean section, but never mentioned the name of the patient. At the time, the hospital had two OR teams available on-call. One was already attending to the hysterectomy which began during the 8 o’clock hour. The other would need to be called in not by the OR, but by the relief house supervisor, Olivia F., RN.

L&D nursing personnel never documented when Dr. U. arrived at bedside. Dr. U. wrote a progress note, timed at 9:20 am, in which he indicated that he had reviewed the tracing. He testified in deposition that he expected that Ms. Cruz would be delivered within 30 minutes; his orders relative to the urgency of the situation had not changed.

Roseville Girl Suffers Birth Injuries, Part 1 of 4

June 9, 2009 | by Moseley Collins

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

Plaintiffs’ Trial Brief on Substantial Contributing Factor; There is No Apportionment of Causation (Espinosa)MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical negligence action wherein the minor Plaintiff, KYLIE SMITH, suffered severe birth injuries. There will be expert testimony on the issue of causation. The defense may argue that the Plaintiffs must show by a reasonable medical probability that a defendant caused the injuries by a margin of 51%. The defense may argue that it can ask the expert to apportion the injury between factors that caused the injury. Then because the expert won’t do that, the defense then claims there is no testimony as to a reasonable medical probability. This is not the current state of the law in California.

Plaintiffs are not required to quantify the percentage on causation. Plaintiffs experts need only testify whether the events were a substantial factor (BAJI No. 3.76). The inability to pin down the exact extent to which defendants’ conduct contributed to the outcome is immaterial for the purposes of causation. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1317-1318).) [I]t was not necessary that plaintiff prove any particular apportionment as was required by the trial court. (Id. at p. 1321.)

Bus Collision In Sacramento Leaves Woman With Brain Injury, Part 5 of 7

June 9, 2009 | by Moseley Collins

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

In June 2005, Dr. Y. recommended to Dr. S. that Diane Cash be evaluated by a neuropsychologist in order to assess the extent of cognitive impairment resulting from the brain damage. In addition to continuing to treat with Dr. S., Dr. C. and Dr. Y., as instructed, Ms. Cash obtained a neuropsychological examination from James W., Ph.D., a licensed psychologist, beginning in August 2005. The neuropsychological evaluation, completed in early 2006, revealed, on the basis of extensive testing, that Ms. Cash had sustained brain damage resulting in considerable loss of cognitive function. Dr. W. also concluded, on the basis of the administered testing, that Ms. Cash’s anxiety and mild to moderate depression, experienced following the bus collision, were sequelae of physical injury to the brain, and not of psychopathology.

Dr. W. declared under oath as follows: The extensive neuropsychological testing conducted during the evaluation of Diane Cash evidenced that Ms. Cash sustained acute physical injury to the brain. The organic brain damage sustained by Ms. Cash has resulted in significant loss of cognitive function. Additionally, as a result of the physical injury to the brain, Ms. Cash suffers from decreased memory, inability to concentrate, mental fatigue, anxiety, irritability, mild to moderate depression, vertigo, stammering, stuttering, blurred vision and headache.

Illegal Retaliatory Firings By Sacramento-area Company Prompts Lawsuit, Part 17 of 18

June 9, 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 BY ALL PLAINTIFFS AGAINST
DEFENDANT UCC BASED UPON RETALIATION
99. Plaintiffs incorporate herein by reference each and every allegation contained in paragraphs1 through 87 with full force and effect as though fully set forth herein.
100. The acts and words of Defendant as alleged herein above constitute adverse employment action and/or retaliation against Plaintiffs, and Defendants violated Government Code § 12940 by retaliating against Plaintiffs because they opposed Defendants’ practices as described herein above.
101. As a direct and proximate result of Defendants’ conduct, Plaintiffs suffered and continue to suffer general damages, including, but not limited to, severe emotional distress, as alleged herein in an amount according to proof.
102. Defendants’ conduct, as set forth above, was intentional and malicious and done for the purpose of causing Plaintiffs to suffer humiliation, mental anguish and emotional distress. Defendants’ conduct was done with knowledge that Plaintiffs’ emotional and physical distress would result and was done with wanton and reckless disregard of the consequences to Plaintiffs and was despicable, intentional and malicious and done for the purpose of causing Plaintiffs to suffer humiliation, mental anguish and severe emotional distress. Defendants’ conduct was done with the knowledge that Plaintiffs’ emotional and physical distress would as a result increase and was done with wanton and reckless disregard of the rights of Plaintiffs and the consequences to Plaintiffs. The aforementioned acts of Defendants were willful, wanton, malicious and oppressive and justify the awarding of exemplary and/or punitive damages according to proof.

Roseville Child Suffers Birth Injuries, Part 1 of 3

June 9, 2009 | by Moseley Collins

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

Plaintiffs’ Trial Brief on the Quality of Parents’ Care (Hanif)

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical negligence action wherein the minor Plaintiff, DANIEL YAMAMOTO, a Roseville resident, suffered severe birth injuries. Each Defendant and their witnesses have no basis for making any reference to (1) the issue of the parents’ quality of care or (2) to a claim that the minor Plaintiff’s damages may be limited by the fact that the parents or relatives of the minor Plaintiff have in the past provided, and may in the future continue to provide, some attendant care for the minor Plaintiff.

1. The quality of the parents’ care is irrelevant. The defense has no admissible testimony that the quality of care given to the minor child has in any manner contributed to the brain damaged condition from which the child suffers. Such testimony is excludable as irrelevant (Evid. Code § 210) and unduly time consuming and prejudicial (Evid. Code § 352).

2. The cost of the minor’s care is not reduced because the parents may provide some care. Further, the defense cannot bring up the issue of the quality of the care given to the minor by the parents in order to reduce the damages. Where it is undisputed that the minor Plaintiff will require attendant care for the rest of his life, the jury’s function is to determine the reasonable level and cost of such care to be included as plaintiff’s damages. The jury function is not to determine who will provide the care (Hanifv. Housing Authority (1988) 200 Cal. App.3d 635, 644). Based upon this clear authority, Plaintiffs attach a proposed jury instruction regarding the holding in Hanif.

Sacramento Plaintiffs Seek Full Recovery In Medical Malpractice Suit, Part 1 of 4

June 8, 2009 | by Moseley Collins

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

Question: Are medical malpractice plaintiffs eligible to recover prejudgment interest on their jury award when their statutory offer to settle has been rejected?

Plaintiffs ELLEN GREENE and PETER GREENE, minors, will move the Court for an order awarding and adding prejudgment interest to the judgment in favor of plaintiffs ELLEN GREENE and PETER GREENE, minors, and against defendant KENNETH B., M.D., pursuant to Civil Code §3291 and Code of Civil Procedure Section §998, in the amount of $120,384.75, as of November 24, 2003; and $281.93 daily interest from and after February 4, 2005, to the date of entry of judgment, based upon the jury’s verdict in this medical malpractice action of January 12, 2005, as follows:

Past economic loss: $ 53,300
Future economic loss: $145,500
Non-economic loss $830,250
reduced from $3.8 million
to $830,250 per the
declaration of economist

Peter Formuzis, Ph.D.

Total: $1,029,050

Note: If the Jury’s Verdict for non-economic damages is reduced per Civil Code Section 3333.2, from $3.8 million to $250,000, and without any increase for inflation since 1975, the amounts become:

Past Economic Loss: $ 53,300
Future Economic Loss: $145,500
Non-economic Loss $250,000
Total: $448,800

OB/GYNs At West Sacramento Hospital Cause Birth Injury, Part 3 of 11

June 8, 2009 | by Moseley Collins

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

FACTS:

Due to absence of comprehensive nursing notes on Ms. Cruz while she was in L&D, exceedingly poor memories of the witnesses whose depositions have been taken to date, and a lack of access to the chart on the breech patient, the facts relating to both Ms. Cruz and the breech patient while each were in L&D and the OR remain somewhat uncertain.

Ms. Cruz was a 42-year-old mother of six when she first began receiving prenatal care from Dr. U. at Universal Health Clinic on April 18, 2002. An OB sonogram revealed a due date of October 23. Ms. Cruz had no complaints until August, 2002. During the month of August, Ms. Cruz developed headaches, weakness and sweats. Later that month, a 3-hour glucose tolerance test (GTT) found excess sugar so she was referred to a high-risk OB to manage those problems. During the months of August and September her systolic blood pressure rose to 140. Late in September, Ms. Cruz was seen by a high-risk OB and ante-partum testing was begun on October 1. On October 1, a non-stress test (NST) revealed a healthy, reactive fetus. The systolic pressure on Ms. Cruz remained borderline at 140. No physician thought it necessary to place Ms. Cruz on anti-hypertensive medication or on magnesium sulfate based on these borderline values. Her pressures never increased from that level for any significant period of time.

Pedestrian In Sacramento Suffers Brain Injury In Bus Collision, Part 4 of 7

June 7, 2009 | by Moseley Collins

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

On Monday, February 9, 2005, Diane Cash obtained further treatment for her bus collision injuries from her primary care physician, Kerry C., M.D., in Sacramento. Dr. C. reported the bus accident, and he noted complaints of nausea, rib pain and cervical radiculopathy. At her re-examination on February 17, 2005, Ms. Cash continued to have head pain, to feel slow and confused, as well as having continued neck and back pain. Dr. C. believed that Ms. Cash was suffering from post-concussion syndrome, and he ordered a CT Scan of Ms.Cash’s head and neck.

Diane Cash returned as instructed for further examination by Dr. C. on March 1, 12, 15, 22 and 29, 2005. Ms. Cash continued to have constant right-sided headache, where her head struck the pavement the pain was only slightly relieved by medication. She continued to feel slow and drowsy, and to have blurred vision. There was related neck, right shoulder, knee and right heel pain. Dr. C.’s diagnosis was of post-concussion syndrome with attendant concern for traumatic head injury. Dr. C. prescribed physical therapy and referred Ms. Cash for consultation for head injury to a neurologist, Roberta S., M.D.

On April 5, 2005, Diane Cash was examined by Board Certified Neurologist, Roberta S., M.D. Dr. S. reported bifrontal and occipital headaches, blurred vision, positional imbalance, slow thinking and reduced memory, as well as low back, hip, right side, knee and heel pain. The physical complaints of heel pain improved somewhat since the time of the collision. Ms. Cash was taking Neurontin, Flexeril, and Ibuprofen as prescribed. Dr. S.’s diagnosis was of post-traumatic head syndrome, with reduced memory, slowed mentation, positional vertigo and post-traumatic headache, and paraspinal thoracic and lumbar strains. Dr. S. prescribed continued Neurontin and Ibuprofen, and advised Dr. C. that Ms. Cash would continue to be disabled from her job as an architect, at least through June 1, 2005.