Sacramento Family Sues Doctor for Birth Injuries, Part 3 of 5

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)


Defendants Stanley Black, M.D. and ABC Medical Group next demur to Plaintiff’s third cause of action, for Willful Misconduct.

Defendants’ demurrer is replete with colloquy about how plaintiff has failed to plead any facts demonstrating that defendants’ conduct rose above the level of mere negligence. Defendants Black and ABC Medical Group have offered no judicial authority as to just why plaintiff’s pleaded claim for willful misconduct fails to meet the requirements of that well accepted tort.

The elements of willful misconduct are as follows:

1. Actual or constructive knowledge of the peril to be apprehended;2. Actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and3. Conscious failure to avoid the peril.(Witkin, 6 Summary of California Law, 9th edition, Torts, section 761)

This standard was tested in New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681. New involved two motorcyclists who sued a landowner to recover for injuries sustained while they were riding their motorcycles on defendant’s property.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In upholding the jury’s finding that defendant had acted willfully or in conscious disregard of its duty to plaintiffs, the New court found that the trial court’s instruction of willful misconduct did no more than state the well-established objective component of the test of willful misconduct. (New, supra at p. 681).

In defining that objective component, the New, supra court, citing Chappell v. Palmer (1965) 236 Cal.App.2d 34, stated:

The … test that has evolved … in willful misconduct cases is whether a reasonable man under the same or similar circumstances as those faced by the actor would be aware of the dangerous character of his conduct. (New at p. 690).

A careful reading of plaintiff’s Complaint demonstrates that plaintiff has properly pleaded a cause of action for willful misconduct.

At p. 6, paragraph 26, lines 20-26 of Plaintiff’s Complaint, Plaintiff alleges as follows:

From and after said time, Defendants, and each of them, in addition to negligently examining and caring for Monica Hill and minor Plaintiff Elsa Hill, while in utero, and thereafter, were guilty of willful misconduct in that they knew (historically) that Monica Hill had delivered, about 11 years earlier, a pre-term (premature) infant, and they did not seek written authorization from Monica Hill, much less seek to obtain the prior child’s records, though presumptively, said records were available (Title 22, C.C.R. § 70757(c)) to Defendants and each of them.

In Prescod et al. v. AMR (9th Cir. 2004) 383 F.3d 861, a diversity case applying California substantive law, the court, citing Dazo v. Globe Airport Sec. Servs. (9th Cir. 2002) 295 F.3d 934, stated as follows, in discussing willful misconduct:

Determining willful misconduct is based on a subjective standard and can be satisfied through circumstantial evidence. (Prescod, supra, at 870.)

Given the foregoing, it is clear that Plaintiff has pleaded facts sufficient to maintain a cause of action for same.

As such, defendants’ demurrer must be overruled. (See Part 4 of 5.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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