Personal Injury Lawyer Blog

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

WILLIAM SMITH cannot walk, run, stand, or drive. He does not have the use of his legs. He cannot use his left hand or arm. Two years ago, at the age of 62, Mr. SMITH was an active man. He loved to work in his yard and enjoyed traveling. Now he cannot do the things he loves. He is confined to a wheelchair. He has C5 incomplete quadriplegia. He has neurogenic bowels and bladder and must wear a Foley catheter twenty-four hours a day. He has to rely on someone else to help him cook his meals, cut his food, change his clothes, clean his back wound, and drive him to medical appointments and the store. He needs some one to be at home with him in case he falls because he cannot pick himself up. What happened to Mr. SMITH?

II. DEFENDANTS

There are currently four defendants in this case:

A. DR. X, M.D.:

Dr. X is a dermatologist practicing in Roseville. He treated Mr. Smith for many years. For two years preceeding March 23, 2002, he treated Mr. Smith for an open wound on his back that would become the focus of this litigation.

B. ABC HOSPITAL:

ABC HOSPITAL is a hospital operating in Roseville, California. Mr. Smith sought treatment on March 23, 2002, at ABC HOSPITAL for excruciating back pain secondary to the open back wound Dr. X had been treating. When Mr. Smith entered the hospital on March 23, 2002 he was ambulatory.

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8. Plaintiff is an excellent bartender and is personable, slim, trim and an attractive size 5/6. During late summer 2008, Plaintiff gained approximately 5 lbs. but nevertheless remained a size 5/6.

9. On October 7, 2008, Plaintiff was told by Steve Handley, General Manager, that she was too fat and needed to work in the kitchen until she lost weight. She was told she could not work at the bar up front and be visible to the public. Instead she had to go to the back and could only work in the kitchen until she lost weight. Further, she was told by Mr. Handley that when she lost the desired weight he would reward her by making out with her.

10. On October 17, 2008, Ms. Williams was written up for being complacent and was told she needed to be happier.

11. On October 21, 2008, Plaintiff inquired of Steve Handley as to how much weight she needed to lose in order to regain her position in the front bar where she could serve the public directly. She was told by Tamara Hill of Human Resources “5 to 6 lbs. to start with” implying that even if she lost 5 to 6 lbs. that may not be enough of a weight loss to satisfy management. It was clear that the rail-thin image was the female sexual stereotype management required.

12. Ms. Williams has also had to endure a sexually-charged work environment replete with sexual-stereotyping and sexual harassment throughout her employment.

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(d) Oftentimes when a large-breasted female would enter the club, Mr. Black would call over another male employee directing him to look at the large-breasted patron saying, “Hey, there ya go; did ya see those?” and similar such comments regarding female patrons’ breasts.

(e) There is a swinging door entering the bar area. A female employee inquired as to if she could go over the swinging door and Mr. Black responded, “No but you can be under…” sneering and indicating a sexual position.

14. Defendants’ Nighthawk Bar created a continual hostile, offensive environment for Ms. Williams. As another example, there was a private evening lingerie party on October 21, 2008, open only to selected VIPs where women from a lingerie store paraded around in see-through lingerie. This party included a menu of sex toys that could be bought by the VIP patrons. The sex toy menu was printed by Nighthawk and inserted into their regular menu so that the sex toys could be considered and purchased.

15. Ms. Williams has been extremely damaged by the treatment she has been subjected to. She has been humiliated, emotionally unsettled and has felt anxiety and depression as a result of being regarded as unsightly by management and denied her usual work post. Further, the sexual harassment by Defendant Black and the sexually-charged environment has caused her to feel a lack of self-esteem, emotional distress and depression.

FIRST CAUSE OF ACTION

(Gender Discrimination in Violation of Gov’t Code 12940 et seq. Against Defendant HBZT and DOES 1-50)

16. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 through 15 and incorporates the same by reference as though fully set forth herein.

17. Defendants subjected Plaintiff to gender discrimination by treating her as a sexual stereotype, directing her to lose weight, treating her as a sex object and treating her differently than her male counterparts, as described hereinabove, in violation of the California Fair Employment and Housing Act, California Government Code § 12940, et seq. No males were directed to lose weight or be slim.

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C. Dr. Y, M.D.:

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

Dr. Y. is an internist/general practitioner practicing in Roseville, California. Dr. Y was Mr. Smith’s attending physician from March 23, 2002 until March 25, 2002. He failed his medical boards and is not Board Certified.

D. Dr. Z., M.D.:

Dr. Z. is a physician specializing in the control of infectious diseases. He was following William Smith from March 23, 2002, the date of his admittance, until March 25, 2002, when Mr. Smith was found to be quadriplegic.

III. HISTORY

A. Medical:

Prior to March 23, 2002, Mr. Smith was in generally good health. He had undergone a radical prostatectomy for carcinoma of the prostate in December 2001, from which he had made a full recovery. In 1991, he underwent a vertebral laminectomy of the lumbar spine (L2-3) after which he developed a staph infection of the lumbar spine with a diagnosis of osteomyelitis. Dr. X was treating him at the time and placed him on a few weeks of IV antibiotic therapy. He made a full recovery. Mr. Smith’s history is positive for hypertension, skin cancers, Guillian-Garnes syndrome, and cholecystectomy.

B. Employment:

Mr. Smith was employed as a plant supervisor for many years. At the time of the incident he was temporarily not working while he recuperated from his prostatectomy.

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

After being hospitalized at Mercy San Juan Hospital for 14 days, on May 15, 2006, plaintiff was transferred the U.C.D. Medical Center for further inpatient treatment. Upon transfer from Mercy San Juan, her diagnosis included:
 Closed head injury.
 Subarachnoid hemorrhage.
 Diffuse axonal injury.

 C2 fracture anterior aspect of the lateral mass.

Plaintiff remained at UC Davis Medical Center for 22 days where she was treated for a traumatic brain injury. In total, she was hospitalized for 35 days.

V. PLAINTIFF’’S CONTINUING COGNITIVE IMPAIRMENTS

Since the collision plaintiff has been evaluated by three medical experts. Their reports are attached as Exhibits and their findings are discussed below.

1. Alan D. Shonkoff, Ph.D. Dr. Shonkoff was retained by defendant. He examined plaintiff on April 22, 2007, and administered some tests. In his reports he states:

[Plaintiff] clearly sustained a significant head trauma in the 5/1/06 accident. As mentioned, paramedics at the accident scene described her as unresponsive with serial Glasgow Coma Scale scores of 3. She was subsequently intubated and medically sedated.

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INTRODUCTION

Even though he was only in the 9th grade, Plaintiff was the star of his high school soccer team. In the year 2000 he excelled at all athletics and his studies came easily. College was a given as his father was a psychiatrist and his mother a college graduate.

Today, Plaintiff is not going to college. He cannot engage in athletics. He is plagued by brain damage that has produced anger, irritability, memory problems and cognitive deficits. He also suffers chronic, debilitating back pain. He has been unable to keep even the simplest full time job. What happened to Plainitff?

THE COLLISION

On January 6, 2001, Plaintiff was the rear seat passenger in a 2000 Honda Accord driven by Susan Jones. Ms. Jones was driving down Blue Jay Road. She was driving too fast for conditions and ran off the road. Her car smashed into several large trees, crushing the top and injuring both Plaintiff and Ms. Jones. The one-car accident was investigated by the California Highway Patrol, Officers Pedretti and Jong. In their report they state the following:

“Cause: P-1: (Jones) caused this collision by failing to maintain her car on the right half of the roadway, Violation 21650 VC.”

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C. Miscellaneous:

Mr. Smith is divorced. He has four living children. Twenty years ago, in 1984, he suffered a criminal felony conviction for violation of penal code section 288a(b)2, lewd or lascivious acts involving children.

IV. THE WOUND THAT WOULD NOT HEAL

A. Dr. X., M.D.:

Dr. X’s records state that he began treating William Smith on September 16, 1999, for excision of a skin cancer on Mr. Smith’s upper back. The cancer was excised by Dr. X. on October 5, 1999.

On October 12, 1999, Mrs. Smith called Dr. X’s office stating “excision site looks infected.” On October 13, 1999, Dr. X’s nurse recorded “site is red and painful. I think it’s infected, patient states.”

Dr. X’s records are poor with little documentation. He rarely recorded his observations and rarely recorded performing physical exams.

The report of an infection on Mr. Smith’s upper back wound would prove prophetic of the lower back infection which is the subject of this lawsuit.

Later that year (his records are minimal); Dr. X. performed an excision on a basal cell skin carcinoma on Mr. Smith’s lower back. This is the wound that would not heal. It is the subject of this lawsuit.

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20. On or about October 27, 2008, Plaintiff filed timely charges against Defendants with the California Department of Fair Employment and Housing (“DFEH”). True and correct copies of her charges are referenced herein. Within one year of the filing of this Complaint, the California Department of Fair Employment and Housing issued right to sue notices to Plaintiff authorizing this lawsuit. True and correct copies of the right to sue letters are referenced herein. Plaintiff has therefore exhausted her administrative remedies.

21. As a direct and proximate result of Defendants’ willful, knowing and intentional retaliation against her, Plaintiff has suffered and will continue to suffer pain and suffering, and extreme and severe mental anguish and emotional distress. Plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial.

22. As a direct and proximate result of Defendants’ willful, knowing and intentional retaliation against her, Plaintiff has further suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. Plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial.

23. As a further, direct and proximate result of Defendants’ violation of California Government Code § 12900, et. seq. , as heretofore described, Plaintiff has been compelled to retain the services of counsel in an effort to enforce the terms and conditions of her employment relationship with Defendants, and has thereby incurred, and will continue to incur, legal fees and costs, the full nature and extent of which are presently unknown to her.

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

Dr. Allen’s report confirms that plaintiff suffered “cortical brain damage based on radiological and electroencephalographic test findings.” In his report Dr. Allen states:

“In my professional opinion, [plaintiff] has sustained significant damage to her brain, which has demonstrated lowered performance over a period of one year following her automobile accident. It is indicated that she has permanent impairment.

I concur with Dr. Shonkoff in concluding that there has been improvement in some areas of functioning. [Plaintiff’s] functioning in the complex abstract thinking realm, remains moderate to severely impaired. This is also true difficulty learning some left hemisphere mediated tasks.

It is indicated and is my opinion that her automobile accident and subsequent injury will limit occupational functioning in may areas. However, it cannot be determined from these neuropsychological evaluations what his future occupational interests will be, and referral for occupational counseling is suggested.

There is also concern that the level of impairment (moderate to severe) with the significant period of unconsciousness will cause him significantly vulnerability to further brain damage upon any future trauma to his brain. Based on the available information and what is becoming apparent from the research on repeat head trauma patients, she is twice as likely as individuals who have not experienced head trauma to develop damage should a second concussion or major injury occur.

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