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 birth injury 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.
(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.)
In medical malpractice, the standard of care is based only on expert testimony since the acts of a medical practitioner are to be measured as to those matters peculiarly within the knowledge of experts, which is beyond the common knowledge of laymen. In Huffman, supra, the case held that the law has never held a physician or surgeon liable for every untoward result which may occur in medical practice but it demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient.
Importantly, the standard of care is to be determined by a prospective analysis. The standard of care is determined by what the health care provider is presented with and what a reasonable physician would do in that circumstance, not what he or she could have done if the outcome was foreseen, before it occurred. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Additionally, liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. See Dumas v. Cooney, 235 Cal.App.3d 1593, 1603 (1991). In an action involving the alleged failure to diagnose lung cancer, the Court in Dumas stated:
[C]ausation must be proven with a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case … A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted by the jury.
Id., quoting Jones v. Ortho Pharmaceutical Corp., 163 Cal.App.3d 396, 402-403 (1985). Hence, a plaintiff alleging malpractice cannot recover when there is only a mere possibility that a respondent’s negligence caused the wrong. See Simmons v. West Covina Medical Clinic, 212 Cal.App.3d 696 (1989). A less than 50-50 possibility that an act or omission by the defendant caused the harm does not meet the requisite reasonable medical probability test for proximate cause. Id. at 702-703.
In Simmons v. West Covina Medical Clinic, the appellate court held that a physician is not liable in a wrongful birth and wrongful life action when prenatal testing would not have disclosed the congenital anomalies the child was born with to a reasonable medical probability, since the requisite proximate cause is lacking. Id. at 702-703. Here, plaintiffs will not be able to establish that the requisite proximate cause since even plaintiffs’ experts cannot testify to reasonable degree of medical probability that the child’s congenital anomaly, the hemimeganencephaly, would have been diagnosed prenatally.
Additionally, California Civil Code Section 1714.8 states that no health care provider shall be liable for professional negligence where the occurrence or the result was caused by the natural course of a disease or condition or was the natural or expected result of reasonable treatment rendered for that disease or condition. No act or omission of defendants caused the child’s genetic defects.
Moreover, plaintiffs could not have legally elected to abort the fetus beyond the point where the fetus was viable, which is approximately 24 weeks. See also California Health and Safety Code Sections 123466 and 123468. (See Part 6 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.