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/medical malpractice case and its proceedings.)
It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.
The Hearing on the Demurrers
At the hearing on the demurrers by co-defendants, the court engaged the parties in a discussion regarding the issues now raised in this motion. At the hearing, the court stated:
Now, I don’t know if anyone was negligent here or not, I’m not deciding the underlying factual case here. All I’m saying is are you saying a woman who has seizures, having problems with a birth, comes to the hospital, nurses want to get her treated, saying Let’s get her treated, then she goes in to have the delivery and because there is a certain time – it’s not a lot of time, I figure 30 minutes or something like that, the baby is, then, born blue with other problems that turn and result from a lack of oxygen and now is severely brain damaged, don’t you think that scenario is sufficient for a person to come to a reasonable conclusion that somebody did something wrong?
Right. Lack of the timely delivery produces a blue baby because most of the time, babies are not born blue and they are sufficiently oxygenated not to have brain damage. The fact that the baby is born blue, isn’t that circumstantial evidence that a person knows something is done wrong?
Let’s say a person goes in because they have a cut on their eye and they watch the doctor cut off a leg, are you saying that in that situation that that would — they wouldn’t be significantly able to know that there was a problem going on at that moment even though the leg is being cut off? That doesn’t make sense to me.
In this dialogue, the Court precisely and concisely illustrated the very issues confronting the courts in the line of medical malpractice cases to come down since Dillon v. Legg. Every court has struggled with whether to allow emotional distress recovery to a parent who witnesses the negligently inflicted medical care on a child. However, there are two major differences between the court’s hypothetical and our case: First, unlike with cutting a leg off in the emergency room, harm being done to baby Abbey Green, still inside her mother’s body, was physically incapable of perception; secondly, Paul Green admits he did not observe it. (See Part 9 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.