Sacramento Child’s Family Sought Multiple Opinions Re Her Birth Injury Diagnosis, Part 5 of 6

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

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


Although the law does require a plaintiff in a personal injury action to use reasonable effort to care for their injuries or avoid further harm, such a duty to mitigate cannot and should not be inferred as an obligation of Emma through her mother’s decision to seek additional opinions. An extensive amount of research has been done to determine if there is a California case addressing imputation of a duty to mitigate to a child. Counsel has been unable to locate such California authority. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

But the issue was decided by the Connecticut Supreme Court in the case of Lange v. Hoyt (1932) 114 Conn. 590. In that case, an eight-year-old child was struck by a bus. The mother refused hospitalization and surgeries for the child, and the minor’s injuries were therefore aggravated. Holding that the mother’s failure to mitigate was not a superseding or intervening act, the Connecticut Supreme Court stated as follows:

A child of the age of eight years is necessarily dependent upon her parents as regards the steps to be taken to bring about a recovery from an injury, and, if she is not herself guilty of any negligence or improper conduct, the failure of the parents to take proper steps to that end, by a parity of reasoning, cannot be such a cause of any portion of the injuries as will defeat a recovery for all the results of the defendant’s wrongdoing. (Lange v. Hoyt, supra, 114 Conn. 590.)

Emma Smith was only eight years of age when she was treated by defendant Dr. Hill. She was dependent upon her parents in regard to steps to bring about her recovery. Dr. Hill labeled her with an incurable, untreatable diagnosis. There is no evidence that Mrs. Smith acted in any way but reasonably in seeking other medical opinions. Dr. Hill sentenced Emma to remain in a wheelchair for the balance of her life. Under this factual scenario Sabrina Smith should be applauded for her decision to seek other care. It is likely that had Emma remained under Dr. Hill’s care that she would now be permanently confined to a wheelchair. (See Part 6 of 6.)

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

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