Personal Injury Lawyer Blog
The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury case and its proceedings.)
Mr. Lee alleges that he saw thick meconium, decreased fetal heart rate, and his son born lifeless. As a layperson, he could not have known at the time that the injury was caused by the medical treatment being rendered. For a layperson, seeing thick meconium, decreased fetal heart rate, and a child born “lifeless” does not amount to the layperson’s contemporaneous awareness of the cause of the injury. The key element missing in this case as set forth by the Court in the Thing case is that the plaintiff “is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim.” Mr. Lee was present and he witnessed some events, but he has alleged no facts by which he could have been aware at the time that any conduct on the part of the defendants was causing injury to the child.
Mr. Lee witnessed various symptoms, and he may have even witnessed the injury-producing event, but he did not know, at least based on what is alleged, that he knew at the time that what he was witnessing was conduct on the part of Dr. White that was causing injury to his son. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The issue ultimately comes down to whether the father could have known that the child was being injured by conduct on the part of Dr. White, and not merely suspected that the child was being injured. Like Mr. Lee, both fathers in the Justus case suspected that their children were being injured during the delivery, but they did not know that they were being injured.
A father observing a fetal monitor might see an abnormal heart rate or thick meconium or some other problem, but does not know that the child is being injured. Problems during delivery do not necessarily equate to injury. Even seeing the child nonresponsive upon birth does not necessarily mean that the child was injured or that any injury was caused by the delivery. Like the fathers in Justus, Mr. Lee could not have known that his child was injured merely from what he witnessed, but could only have known from what he was told after the fact.
CONCLUSION
Based on the foregoing, it is respectfully requested that the court sustain this demurrer without leave to amend.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.