Personal Injury Lawyer Blog

Sacramento Hospital Physicians’ Negligence Leaves Child With Brain Injury, Part 7 of 8

May 5, 2009 | by Moseley Collins

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

In Huggins v. Longs Drug Stores (1993) 6 Cal.4th 124, the trial court granted defendant pharmacy summary judgment in an action by parents for negligent infliction of emotional distress arising from defendant’s having written prescription directions for five times the prescribed dosage for a medication that plaintiffs administered to their infant child. The trial court found that plaintiffs could not recover as bystanders to the child’s injury, since there was no contemporaneous observation. In contrast here, the father was present for viewing the injured child during an ongoing injury – the lack of oxygen for the minor.

The defense here cites Powers v. Sissoev (1974) 39 Cal.App.3d 865, 874 – a case decided prior to Ochoa and Thing. There the court held that the mother could not recover for shock which resulted from seeing her daughter 30 to 60 minutes after an accident and thereafter under circumstances not materially different from those undergone by. every parent whose child has been injured in a nonobserved and antecedent accident. In contrast, in the present case, the father was present in the delivery room at the time of the injury. Powers has no relevance to the present case.

The defense here cites Bird v. Saenz (2002) 28 Cal.4th 910, which approved the holding in Wilks discussed above. In Bird, the Supreme Court denied bystander emotional distress to plaintiffs who saw their decedent being briefly rushed through a hospital hallway in respiratory distress. The Supreme Court held that since the plaintiffs were not in the operating room-where a single specific act of negligence occurred – they were not bystanders. Here, in this case, the father was present in the operating room. Further, the Supreme Court in Bird further discussed what can qualify as being a bystander – and visual perception of an impact on the victim is not required:

West Sacramento Workers Sue for Sexual Discrimination, Part 1 of 18

May 5, 2009 | by Moseley Collins

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

PURSUANT TO GOVERNMENT CODE SECTION 12940 ET SEQ.

PLAINTIFFS, ROSA BROWN, MANUEL WHITE and PATRICIA GREEN, jointly and/or severally allege as follows:

GENERAL ALLEGATIONS BY PLAINTIFFS AGAINST DEFENDANTS FOR VIOLATION OF EMPLOYMENT CIVIL RIGHTS
1. This is an action for damages to redress the deprivation of rights secured to Plaintiffs by the California Fair Employment and Housing Act (hereinafter “FEHA”), Government Code § 12940, et seq.
2. Plaintiffs seek to obtain relief against their former employer, the Defendants named herein and its agents and employees for subjecting Plaintiffs to discrimination, harassment and/or retaliation on account of Plaintiffs’ sex, race, national origin and association. Additionally, Plaintiffs seek compensatory and exemplary damages for discrimination, harassment and/or retaliation.
3. This action is brought pursuant to the California FEHA, California Government Code § 12940 et seq. Pursuant to said Act, Plaintiffs filed timely charges of discrimination regarding the acts and practices of Defendants alleged herein.
4. The true names and capacities, whether individual, associate, corporate or otherwise of Defendants Does 1 to 100 inclusive and each of them are unknown to Plaintiffs at this time who, therefore, sues said Defendants by such fictitious names. Plaintiffs will amend this complaint to state their true names and capacities when same have been ascertained. Plaintiffs are informed and believe and thereon allege, that each of the defendants designated herein as a Doe is responsible in some manner for the events and occurrences herein described and is liable to Plaintiffs for the damages as herein alleged.

Roseville Couple Files Claim For Medical Malpractice , Part 2 of 5

May 4, 2009 | by Moseley Collins

C. Third Cause of Action: Loss of Consortium

Andy Bates, husband of Susan Bates, makes a claim for loss of consortium following his wife’s total incapacity.

II. DAMAGES

A. Alex Barchuk, M.D.

In order to assess Ms. Bates’ need for ongoing medical and attendant care under both her First and Second Causes of Action, that is, for both (1) her paralysis/neurogenic bowel and bladder and (2) her stage IV sacral decubitis ulcer/colostomy bag, claimant was assessed at her

residence by Alex Barchuk, M.D., on August 29, 2007.

Dr. Barchuk is Board Certified in Physical Medicine and Rehabilitation. He is the Director of the Spinal Cord and Trauma Rehabilitation Program, Kentfield Rehabilitation Specialty Hospital, Kentfield, California.

Dr. Barchuk prepared a report and a DVD setting forth his findings and conclusions. Dr. Barchuk’s DVD is available for review. (The DVD contains a PowerPoint presentation that also includes a number of video clips of interviews with Mr. and Ms. Bates. Once loaded in the computer the presentation can be initiated by using your computer mouse in one of two ways. You can either scroll down to each subsequent page and then use the left click to initiate the video – – by left clicking on the video itself – – on that page, or you can left click on each image or page to advance to the next set of images or video.) Dr. Barchuk’s report and Life Care Plan Worksheet are referenced herein.

Dr. Barchuk states the following in his report beginning at page 18:

The patient is a 45-year-old married woman with history of acute cervical myelopathy status post C4 to C6 laminectomy with decompression evaluated at his home on 8/29/08. At that time a history was obtained from the patient as well as her husband and a physical examination was performed.

Sacramento Woman Struck By Driver Under Influence Suffers Traumatic Brain Injury, Part 2 of 10

May 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 collision was investigated by Officer A. E. Jones of the California Highway Patrol. In his report Jones states the following:

“P-1 [Chris] stated he was driving V-1 westbound on Greenback approaching Sunrise Blvd., in the #1 or #2 lane at 50 mph. He stated, ‘I ran the Sunrise light.’”

The investigating officer noticed a strong smell of alcohol on the defendant. He noticed that his speech was slow and slurred and that his eyes were red and watery. When asked if he had consumed any alcohol that evening, the defendant stated to the officer that he had drank between one-half to one bottle of white Zinfandel strawberry wine and had 2 – 3 shots of Bacardi 151 proof. The officer found on the right front floorboard of defendant’s car three empty bottles of Arbor Mist Strawberry wine and one bottle of Bacardi 151 proof that was one-quarter full.

The investigating officer arrested the defendant for violating 23152(a) CVC, driving under the influence of an alcoholic beverage. He recommended the District Attorney charge defendant with the following offences:

1. 23153(a) CVC: Driving under the influence of an alcoholic beverage causing injury. [FELONY]
2. 23153(b) CVC: Driving under the influence of an alcoholic beverage, BAC .80% or more, causing injury. [FELONY]
3. 23140(a) CVC: Under 21 years of age driving with a BAC of .05% or more.

Sacramento Waitress Sues Employer For Sexual Harassment, Part 1 of 8

May 3, 2009 | by Moseley Collins

Superior Court of California.
Sacramento County
Sabrina Williams, Plaintiff,
v.

HBZT, a California corporation, Dan Black, an individual and Does 1 through 50, inclusive, Defendants.

Jury Trial Demanded
Complaint for Damages 1. Employment Discrimination-Gender (Violation of Gov’t Code §12940 et seq.) 2. Sexual Harassment (Violation of Gov’t Code §12900 et seq.) 3. Injunctive Relief
PREAMBLE

It is sad that in the year 2008, a woman, to be successful at her job and recognized for her abilities and accomplishments, has to fit a sexual stereotype of being rail-thin in order to work.

Ms. Sabrina Williams, is a bartender at a popular East Sacramento nightclub called Nighthawk, owned by HBZT Entertainment well-known in the high-end hospitality industry. HBZT owns numerous venues including hotels, restaurants and clubs in Sacramento, Las Vegas and Palm Beach.

Ms. Williams is a trim, capable, attractive and skilled bartender who served the public at Defendant HBZT’s Nighthawk bar until she gained five (5) lbs. Abruptly she was directed to work in the kitchen and to not be visible to the public until she lost 5-6 lbs. “to start.” Ms. Williams is a trim, fit size 5/6 and remained a size 5/6 when she gained the 5 lbs. However, management clearly regarded her as unsightly and not fitting their female sexual stereotypic image. Males are able to continue to bartend despite being overweight or gaining weight.

PRELIMINARY FACTUAL STATEMENT
1. Plaintiff SABRINA WILLIAMS (hereinafter referred to as “Plaintiff” or “Ms. Williams”) is, and at all relevant times mentioned herein was, a resident of the County of Sacramento, State of California.

Automobile Accident Leaves Folsom Driver Paralyzed, Part 2 of 14.

May 3, 2009 | by Moseley Collins

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

II. LEGAL STANDARD
A party who seeks a court’s action in its favor bears the burden of persuasion thereon. (Evid. Code § 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 (emphasis added).) Therefore, defendants moving for summary judgment bear the burden of persuasion that one or more elements of the cause of action in question “cannot be established,” or that “there is a complete defense” thereto. (Aguilar, supra, at 850.)
If there is even one triable issue of material fact the motion must fail. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 854-855) Additionally, the moving party’s evidence must be strictly construed “in order to avoid unjustly depriving the plaintiff of a trial.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) [See The Rutter Group, Civil Procedure Before Trial, Chapt. 10-E, §§ 223 et seq.]
As the moving party, ABC has two opportunities to submit pleadings to the Court. Plaintiff John Gibbs has only one such opportunity. Why? This is because ABC has the burden of persuasion and, in addition, the following rules apply:

Sacramento-area Hospitals Sued for Malpractice, Part 1 of 5

May 2, 2009 | by Moseley Collins

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

RE: Susan and Andy Bates
I. BRIEF SUMMARY OF CLAIMS

Ms. Bates’ claims involve two distinct separate injuries occurring at two different times. Her claims are brought under two separate legal theories and causes of action. Her first Cause of Action is for medical malpractice. Her Second Cause of Action is brought pursuant to The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), found at Welfare and Institutions Code §15600 et seq. As a result, she is entitled to and seeks two different financial recoveries.

In addition, Andy Bates makes a claim under the Third Cause of Action for loss of consortium.

A. First Cause of Action: Medical Malpractice

Ms. Bates’ First Cause of Action focuses on the care and treatment she received during the period she was hospitalized at United Hospital in Carmichael from December 26, 2005 through January 13, 2006. As a result of that hospitalization, Ms. Bates now has the following injuries:

1. Paralysis,
2. Neurogenic bladder,
3. Neurogenic bowel,

4. Chronic neuropathic pain.

This claim is subject to MICRA.

B. Second Cause of Action: Dependent Adult/Elder Abuse

Ms. Bates’ Second Cause of Action is brought pursuant to Welfare and Institutions Code §15600 et seq., the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). This claim focuses on United’s neglect of claimant, Susan Bates, after she was hospitalized for the above described paralysis and is distinct in time and injury from her paralysis claim. It occurred at ABC Hospital in Citrus Heights after January 13, 2007, and resulted in the following injuries:

1. Stage II sacral decubitus ulcer arising when Ms. Bates was an in-patient at United. This ulcer progressed as described in #2 below.

2. Stage IV sacral decubitus ulcer.

3. Placement of permanent colostomy bag required by the Stage IV sacral decubitus ulcer.

Sacramento Nightclub Sued For Sexual Harassment, Part 2 of 8.

May 2, 2009 | by Moseley Collins

3. Plaintiff is informed and believes, and based thereon alleges that Defendant DAN BLACK, (hereinafter “BLACK”) is an individual who at all relevant times herein was a resident of the County of Sacramento. Plaintiff is informed and believes that at all relevant times herein BLACK was Defendant HBZT’s Nighthawk’s bar manager, a managing agent of Defendant HBZT.

4. The true names and capacities, whether individual, associate or otherwise, of Defendants sued herein as DOES 1 through 50, inclusive, are currently unknown to Plaintiff, who therefore sues said Defendants by such fictitious names. Plaintiff is informed and believes, and based thereon alleges, that each of the Defendants designated herein as a DOE is legally responsible in some manner for the events and happenings referred to herein, and caused injury and damage proximately thereby to Plaintiff as hereinafter alleged. Plaintiff will seek leave of Court to amend this complaint to show the true names and capacities of the Defendants designated herein as DOES when the same have been ascertained.

5. Whenever in this complaint reference is made to “Defendants, and each of them,” such allegation shall be deemed to mean the acts of Defendants acting individually, jointly, and/or severally.

6. Plaintiff is informed and believes, and based thereon alleges, that at all times mentioned herein, each of the Defendants was the agent, servant and employee, co-venturer and co-conspirator of each of the remaining Defendants, and was at all times herein mentioned, acting within the course, scope, purpose, consent, knowledge, ratification and authorization of such agency, employment, joint venture and conspiracy.

Birth Injury Of Sacramento Baby Due To Hospital’s Malpractice, Part 8 of 8

May 2, 2009 | by Moseley Collins

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

Here, the Plaintiffs contemporaneously understood that viewing the child’s deterioration was watching injury to a close relative. In Byrd, the Supreme Court discussed Ochoa v. Superior Court (1985) 39 Cal.3d 159:

In that case [Ochoa], a boy confined in a juvenile detention facility died of pneumonia after authorities ignored his obviously serious symptoms, which included vomiting, coughing up blood, and excruciating pain. We permitted the mother, who observed the neglect and recognized it as harming her son, to sue as a bystander for NIED [negligent infliction of emotional distress]. Anticipating the formula we would later adopt in Thing, we explained that when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted. (Emphasis added.) (Bird, supra, 28 Cal.4th at p. 919.)

Significantly, the Supreme Court in Byrd held that in Ochoa the injury-producing event was the failure to provide proper medical attention – and that observing the symptoms was sufficient for bystander emotional distress:
The injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention. Such a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson. (Bird, supra, 28 Cal.4th at p. 919-920.)

Woman In Sacramento Suffers Brain Damage When Hit By Drunk Driver, Part 3 of 10

May 2, 2009 | by Moseley Collins

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

IV. PLAINTIFF’’S ACUTE TRAUMATIC BRAIN INJURY

Plainitff was unconscious when fire rescue arrived on scene. She had a Glasgow Coma Scale (GCS) of only 3. Her jaw was clenched. Plainitff remembers riding in the car. She remembers the light was green. She does not remember any further information until approximately one week later when she woke up in the hospital.

When she arrived at Mercy San Juan Hospital, she had a GCS of 7. She was intubated and medically sedated. Plaintiff was admitted to ICU where she remained intubated and on mechanical ventilation for three days.

On May 6, 2006, he was noted to have a GCS of 8. He had waxing and waning mental status. A CT showed he had suffered hemorrhages of the brain. An EEG on May 7, 2006, indicated encephalopathy (brain damage).

On May 3, 2006, plaintiff’s GCS was 14, near normal. She was noted to have right and left lower extremity weakness. She was also noted to have “impaired short-term memory.” Her behavior was impulsive and her speech was impaired.