Permanent Injuries Suffered During Child’s Birth Lead To Sacramento Malpractice Suit, Part 7 of 8

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal 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.

Another way of putting the defense’s self consumption reduction would be to state the defense was asking a jury to speculate about an injured plaintiff’s prospective personal living expenses during the lost years period. (Id.) This the Court of Appeals refused to do. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

And the Court of Appeal had a second reason to reject the “self consumption” reduction: Second, and equally troubling, [Defendant] does not identify any case which applies a personal consumption or living expense deduction in this context. (Id. at p. 176.) In other words, the defense has no case authority. The defense argued such a deduction is made in wrongful death cases. But again, the Court of Appeal rejected the argument. The Court acknowledged that in wrongful death actions, an acceptable way to show how much money would have been available for the support of a decedent’s wife and children is to show how much money would have been earned during the remainder of his life, and to deduct from that amount his personal maintenance expense and the amount he would have spent on other things. (Id. at p. 176.)

However – – By contrast, in a personal injury action where lost years damages are recoverable, the measure of damages is not lost support but rather lost earnings during the period the plaintiff would have lived if not for the injury. (Fein. supra, 38 Cal.3d at p. 153. Speculating as to how the injured party may have spend those future earnings if not for defendant’s tortuous conduct is a very different exercise than permitting a wrongful death plaintiff to prove damages for lost support by accounting for his or her supporter’s other expenses. (Overly, supra, 74 Cal.App.4th at p. 176.)

Consequently, California does not recognize the defense’s self consumption argument.

And even before the Overly decision, the article Lost Years, supra 50 Cal. L. Rev. 598, cited by the Fein court noted the following: True it is that at least one court has curtly dismissed this objection on the ground that it was none of the defendant’s business how the plaintiff proposed to spend his damages. (Id. at 603 & fn.22.) ( The final inquiry as to the earning capacity of a man is not what he is capable of saving but what he is capable of earning ). The article goes on to add that:

“[T]his, however, is but a peripheral objection [the defense self consumption argument] to the widespread practice of awarding the plaintiff full compensation for his lost years, and one which a slight adjustment can readily cure …. [W]e have long been inured to the admittedly unattractive notion that it is less expensive to kill than to maim.” (Id. at 604.) (See Part 8 of 8.)

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

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