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.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)
It is also 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, or Sutter.
Under the discovery rule, the statute of limitations began to run when plaintiffs suspected their injury was caused by wrongdoing. Plaintiffs, therefore, cannot take advantage of the provisions of Code of Civil Procedure §474 and relate back the Amendment of Complaint, adding Dr. Brown as a DOE defendant, back to the date of the filing of their original Complaint. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The medical records establish that plaintiffs had knowledge of Dr. Brown as well as his extensive participation in the delivery of their baby on February 21, 2001. Further, both Ms. Smith and Mr. Smith, Sr., testified that they were aware that Dr. Brown was the primary treating obstetrician who delivered their son on February 21, 2001. During her deposition, Ms. Smith testified as follows:
Q. Now, do you recall meeting a doctor by the name of Dr. Brown?
A. Yes.
Q. When is the first time you met him?
A. While I was in the delivery room.
Q. Now, when you first saw Dr. Brown, you understood that he was part of the XYZ group?
A. Yes.
Q. You understood that he was the doctor in charge at that point?
A. Yes; he told me he was.
Q. And when is the next time that you can recall seeing Dr. Brown?
A. I was — they had me trying to push because I had dilated some more centimeters, and they saw my baby wasn’t coming out, and he had me — made a comment that we can use the vacuum cleaner on him. And I told him no, I don’t want it to be used on me, because my father told me that’s partly the reason my sister has dyslexia, and I told him that I don’t want it to be used on me. And that’s when he made the comment that they have used it in the past before on other similar problems like this and it had worked. The kids had a bruise. I told him I still don’t want it to be used on me.
*****
Q. So sometime in the late evening hours of the 20th or early morning hours of the 21st, you recall having this conversation with Dr. Brown – –
A. Yes.
Q. — regarding the vacuum extractor; correct?
A. Yes.
Q. Now this conversation that you had with Dr. Brown regarding the vacuum extractor took place in your room?
A. Yes.
Q. And who was present for this conversation?
A. Mr. Smith.
The alleged tortious events occurred on or around February 21, 2001. The Complaint in this action was filed on January 19, 2001. Dr. Brown was identified as a DOE defendant on March 14, 2001. It is evident, based on the records as well as the deposition testimony of Mr. Smith and Ms. Smith, that plaintiffs had knowledge of Dr. Brown’s identity prior to initiating this lawsuit. Based thereon, plaintiffs’ Doe Amendment of Dr. Brown cannot relate back to the filing date of the Complaint. Therefore, this action is barred by the statute of limitations.
CONCLUSION
For the above-stated reasons, defendant, David Brown, M.D., respectfully requests that this court grant his Motion for Summary Judgment as against Abbey Smith and Mark Smith, Sr., because this action is barred by the Statue of Limitations and defendant is, therefore, entitled to summary judgment as a matter of law.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.