Personal Injury Lawyer Blog

Hostile Work Environment Leads To Lawsuit By West Sacramento Workers, Part 16 of 18

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.)

SECOND CAUSE OF ACTION BY ALL PLAINTIFFS AGAINST ALL DEFENDANTS BASED UPON HOSTILE WORK ENVIRONMENT HARASSMENT
93. 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.
94. The acts and words of Defendants as alleged herein above constitutes harassment on account of Plaintiffs’ sex, race and/or national origin in the form of a hostile working environment and violated Government Code § 12940 by maintaining a hostile work place where such harassment occurred including harassment by Defendants’ officers, supervisors, managing agents, directors, and/or employees as evidenced by Defendants’ conduct and policies as herein above described.
95. As a direct and legal result of Defendants’ harassment of Plaintiffs, Plaintiffs suffered damages as alleged herein in an amount according to proof.
96. 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.
97. The conduct of Defendants as alleged herein above was despicable, willful, wanton, malicious and oppressive and justify the awarding of exemplary and/or punitive damages according to proof.

Medical Malpractice Leaves Sacramento-area Girl Injured, Part 2 of 4

June 6, 2009 | by Moseley Collins

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

PLAINTIFFS’ EXPERTS ARE REQUIRED TO TESTIFY ONLY AS TO WHETHER THE CAUSATION WAS A SUBSTANTIAL FACTOR – AND THEY ARE NOT REQUIRED TO QUANTIFY THE PERCENTAGE OF INJURY

Plaintiffs’ experts are required only to testify whether a cause of injury is a substantial factor and this has long been the rule in California: The law defines cause in its own particular way. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. (BAJI No. 3.76).

And as the USE NOTE states in BAJI, [t]his instruction, and the Comment thereto, were approved in Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314 …. (BAJI 3.76 (1997 Supp.).) This situation is almost directly on point with Espinosa. In the Espinosa case, the minor plaintiff suffered from a brain injury which had three possible contributory causes, one of which was clearly not due to the defendants’ negligence.

During the presentation of the plaintiffs’ case at trial, the plaintiff’s expert on causation testified that there were three time frames in terms of the factors that are involved in causing this child’s condition, chronic, sub-acute, and acute. (Emphasis in original.) (Id. at p. 1311.) The expert also testified that he could not quantify the extent of the interrelationship between these three time frames as a cause of plaintiff’s injury. After the conclusion of plaintiffs’ evidence, the Court granted a non-suit because the plaintiff had not sufficiently established the element of causation between the defendants’ acts and Plaintiff’s brain damage.

Sacramento-area Employees’ Rights Violated By Sexually Abusive Superiors, Part 15 of 18

June 6, 2009 | by Moseley Collins

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

FIRST CAUSE OF ACTION BY ALL PLAINTIFFS AGAINST DEFENDANT UCC BASED UPON EMPLOYMENT DISCRIMINATION
88. 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.
89. The acts and/or words of Defendant as alleged herein above constitute employment discrimination against Plaintiffs based upon Plaintiffs’ sex, race and/or national origin. Defendants violated Government Code § 12940 by discriminating against Plaintiffs because of Plaintiffs’ sex, race and/or national origin with respect to the terms and conditions of Plaintiffs’ employment.
90. 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.
91. 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 Family Files Action For Medical Malpractice, Part 2 of 11

June 6, 2009 | by Moseley Collins

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

At 10:20 am, Dr. U. was informed by L&D personnel (while operating on the breech patient) that the FHR on Ms. Cruz had fallen further. As a result, Dr. U. called for a crash Cesarean section on Ms. Cruz. Dr. U. gave no instructions as to who would deliver Ms. Cruz or how. If there was no one to deliver Ms. Cruz sooner than he, Dr. U. expected that he would leave the breech patient to her assistant surgeon, Dr. V., toward the end of surgery in order to attend to Ms. Cruz.

At 10:25 am, OB/GYN’s, Ralph Z., MD and Erica C., MD, had completed the scheduled hysterectomy in OR #1. However, no one informed them that there was another patient, Ms. Cruz, awaiting an emergency c-section, and thus they left the hospital at that time. The anesthesiologist from the hysterectomy, Stuart X., MD, became available at 10:30 am, and he remained in the hospital. At 10:30 a.m., surgery for the breech case began in OR #2.. At 10:32 a.m., Dr. X. was noted to be at the bedside with Ms. Cruz. For the next 35 minutes, until 11:05 am, Dr. X. and Dr. W. waited until Ms. Cruz arrived in OR #3 and Dr. U. became available for the surgery. They had been given no specific instructions by the nurses or hospital supervisor. It was not until close to 11:05 am that Dr. U. emerged from the surgery with the breech patient and attended to Ms. Cruz again. At 10:40 a.m., the breech case delivered without complication. Also at 10:30 a.m., no more could be heard of the fetal heart rate on Ms. Cruz’s baby.The breech patient’s OB/GYN, Maria D., MD, was never informed that Dr. U. had an emergency case of his own and, even after the crash Cesarean for Ms. Cruz was called by Dr. U., Dr. D. was not contacted again to assist in any way. Dr. Z. and Dr. C. were never asked by anyone to operate on Ms. Cruz, or assist in any way. The OB/GYN physician scheduled by the hospital to be on-call in the ER for emergencies that morning, was never contacted.

Court Addresses Medical Malpractice Issues For Sacramento Family, Part 1 of 3

June 6, 2009 | by Moseley Collins

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

MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION

This is a wrongful death action involving the death of Trevor Smith, who was a forty-one-year-old father and husband from Sacramento. He died of cardiac arrest following a lengthy period of multi-organ failure. Plaintiffs assert Defendants failed to properly diagnose and treat his condition.

Certain of defendants’ expert witnesses in the pending case may testify to opinions on causation and the standard of care concerning the treatment. Some of the expert testimony may be couched in terms of “medical possibilities” rather than “medical probabilities.” California Evidence Code section 350 limits admissibility of evidence to “relevant evidence.” Relevant evidence is evidence “having some tendency in reason to prove or to disprove any disputed fact of consequence in the action”, that is, evidence that is probative of some disputed issue in the case. See Evidence Code section 210. Thus, evidence is irrelevant if it has a tendency to prove or disprove a disputed fact of consequence only by reason of drawing speculative or conjectural inferences from such evidence. On the basis of this definition, defendants’ expert testimony may be irrelevant if it does not establish causation or the standard of care to a reasonable medical probability.

Section 352 of the Evidence Code permits the Court to exclude probative evidence if it is otherwise time-consuming, prejudicial, confusing or misleading. We are interested in medical probabilities, not possibilities, conjecture and/or speculation.

El Dorado Child’s Birth Injury Results In Lawsuit Against OB/GYN, Part 8 of 8

June 5, 2009 | by Moseley Collins

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

IV THE MOTHER DOES NOT HAVE TO SHOW CONTEMPORANEOUS OBSERVATION OF HER CHILD’S BIRTH INJURY TO CLAIM EMOTIONAL DISTRESS AS A DIRECT VICTIM
The plaintiff mother does not have to show contemporaneous observation of a bystander under Thing v. La Chusa (1989) 48 Cal.3d 644, to claim emotional distress from injury to her child because the mother is a direct victim.
A. Because Gupta Owed a Preexisting Duty of Care to Burgess, the Criteria for Recovery of Negligent Emotional Distress Enunciated in Thing Are Not Controlling in This Case.

In contrast [to bystander], the label direct victim arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law or that arises out of a relationship between the two. [Citation omitted.] In these cases, the limits set forth in Thing, supra, … have no direct application. [Citations omitted.] Rather, the well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case. (Emphasis and brackets added.) (Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1064, 1072-1073.)

Consequently, the elements of emotional distress for the plaintiff mother are the elements of negligence: We have repeatedly recognized the [t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. … The traditional elements of duty, breach of duty, causation, and damages apply. (Id. at p. 1072.)

Sacramento Bus Driver Severly Injures Pedestrian, Part 3 of 7

June 5, 2009 | by Moseley Collins

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

DAMAGES
A. Physical Injuries.

The bus struck Diane Cash from the left, as she walked eastbound on Campus Commons Road across University Avenue. Ms. Cash fell and hit her head and her right side on the street pavement. Her first recollection is of waking up and lying on wet pavement, staring at the headlights of the bus. She was disoriented and felt like she was going to die. As she laid on the ground, she heard her friend, with whom she had been speaking on her cell phone, calling out to her. Ms. Cash dragged herself in the direction of her friend’s voice. She felt for her cell phone and found it nearby on the pavement. She was able to call 911.

The Sacramento Fire Department responded to the emergency, assisted Ms. Cash, and the medics reported a chief complaint of head pain. Ms. Cash was transported by ambulance to Mercy General in Sacramento.

At Mercy, Ms. Cash was found to have headache, head contusion and cephalic (head) hematoma, in addition to right shoulder, right leg, and back pain. The examining physician stated: There was questionable loss of consciousness although the patient states she felt disoriented. X-rays were taken of the cervical and lumbar spine. The clinical impression, was as follows:

CLINICAL IMPRESSION:

1. Acute motor vehicle accident.
2. Closed head trauma without acute loss of consciousness secondary to number 1.
3. Cervical/lumbar strain secondary to number one.

Negligent Sacramento Physicians Cause Girl’s Birth Injury, Part 3 of 4

June 4, 2009 | by Moseley Collins

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

The Espinosa court also held that having demonstrated the substantial factors in causing plaintiff’s brain damage, It was not necessary that plaintiff prove any particular apportionment as was required by the trial court. (Espinosa, supra. 31 Cal.App.4th.at p. 1321.)

The underlying facts of the Espinosa case are similar to the present action. Both involve indivisible injuries which were alleged to have been caused by the defendants in relation to the events surrounding the birth of the Plaintiff. Both involve experts who will not apportion the degree of damage between these points in the medical time line.

By asserting that the Plaintiffs’ expert must quantify and give percentages of injury at each stage, the hospital is misstating the law and trying to manufacture a causation issue which does not exist.

The Judicial Council Task Force on Jury Instructions has published jury instructions on the issue of causation which incorporate Espinosa, Instruction 340 provides as follows:
A substantial factor is a factor that a reasonable person would consider to be a cause of the harm but is more than a trivial factor in causing it. (Jud. Council Task Force on Jury Inst. No. 340, at p. 93.)

Sacramento-area Medical Facility Sued For Birth Injury, Part 1 of 11

June 4, 2009 | by Moseley Collins

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

Plaintiff’s Settlement Conference Brief

BRIEF SUMMARY OF THE CASE:

This action for malpractice involves severe birth-related brain injuries to Martha Cruz, born XX/XX/2002, at Regional Medical Center in West Sacramento. Briefly, Martha’s mother, Patricia Cruz, was seen for prenatal care by OB/GYN, Gregory U., MD. The pregnancy was uneventful except for gestational diabetes and some elevated blood pressures, neither of which caused or contributed to the infant’s injuries in this case.

Ms. Cruz arrived in Labor & Delivery (L&D) at Regional Medical Center at 8:57 am on Saturday, October 5, 2002, complaining of abdominal pain. A fetal monitor was placed immediately. Nursing documented a non-reassuring fetal heart rate (FHR) and a uterine contraction pattern described as very irritable . At 9:10 am, Ms. Cruz signed a consent for Cesarean delivery. At 9:15 am, nursing first contacted Dr. U. by telephone. At that time, he advised that the patient be admitted for an emergency Cesarean section . As October 5 was a Saturday, an on-call operating room (OR) crew, including anesthesiologist, Sandy Y., MD, assistant surgeon, Michael V., MD, scrub nurse, Robert A., circulating nurse, Elaine B., RN, and pediatrician, Susan W., MD, were contacted for Ms. Cruz’ delivery. At the time of Dr. U.’s arrival in L&D, she confirmed the need for an emergency Cesarean section. At the time, there was a scheduled surgery on another patient for removal of a hysterectomy occurring in OR #1.

At Regional Medical Center, all Cesarean sections were conducted in the main hospital OR, one floor below L&D in the
basement. Dr. U. testified that she expected the surgery to occur within 30 minutes of her order. At approximately 10:00 am, Dr. U. left L&D and went downstairs to the main OR to determine whether the OR crew had arrived yet.
Either before she went to the OR or immediately after her arrival in the OR, Dr. U. was informed that there was a breech
patient at high risk that required an emergency Cesarean section, though the patient was not Dr. U.’s patient.

Woman From El Dorado Hills Suffers Brain Injury In Bus Accident, Part 2 of 7

June 3, 2009 | by Moseley Collins

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

According to the police report concerning the bus-pedestrian collision, Diane Cash was approximately two-thirds of the way across the intersection at the time of impact. The impact knocked her to the ground, and her head struck the pavement.

Prior to the collision, defendant Terry James, driving the University bus on its regular route, was traveling westbound on University Avenue. According to defendant James, he came to a stop at the limit line for the stop sign at Campus Commons Road, and then began executing his left turn onto University Avenue. While executing his turn, James saw a shadow in front of his bus which he later determined to be Diane Cash. Defendant James testified that he struck Ms. Cash with the right front portion of the bus.

The investigating officer determined that the primary collision factor was a violation on the part of defendant James of California Vehicle Code Section 21950(a) (failure to yield to a pedestrian within a marked crosswalk). Defendant University investigated the circumstances of the collision, and it concluded that driver James was at fault, and that the accident chargeable to driver James’s record.

At the scene, driver James did not mention any equipment failures to the investigating police officer. At deposition, however, defendant James testified that the windshield wipers on the University bus were not functioning at the time of the collision. Further discovery confirmed that the windshield wipers, and possibly the defroster system on the bus, had not been functioning for a period of at least several days before the collision.