Wilful Misconduct By Sacramento Doctor Leads To Birth Injury, Part 3 of 5

(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.)


Defendants David X., M.D. and Doctors Medical Group next demur to Plaintiff’s third cause of action, for Wilful Misconduct.

Defendants’ demurrer is replete with colloquy about how plaintiff has failed to plead any facts demonstrating that defendants’ conduct rose above the level of mere negligence.

Defendants David X., M.D. and Doctors Medical Group have offered no judicial authority as to just why plaintiff’s pleaded claim for wilful misconduct fails to meet the requirements of that well accepted tort.

The elements of wilful misconduct are as follows:
1. actual or constructive knowledge of the peril to be apprehended;
2. actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger; and

3. conscious failure to avoid the peril.

(Witkin, 6 Summary of California Law, 9th edition, Torts, section 761)

This standard was tested in New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681. New involved two motorcyclists who sued a landowner to recover for injuries sustained while they were riding their motorcycles on defendant’s property. In upholding the jury’s finding that defendant had acted wilfully or in conscious disregard of its duty to plaintiffs, the New court found that the trial court’s instruction of wilful misconduct did no more than state the well-established objective component of the test of wilful misconduct. (New, supra at p. 681).

In defining that objective component, the New, supra court, citing Chappell v. Palmer (1965) 236 Cal.App.2d 34, stated:

The …. test that has evolved …. in wilful misconduct cases is whether a reasonable man under the same or similar circumstances as those faced by the actor would be aware of the dangerous character of his conduct. (New at p. 690).

A careful reading of plaintiff’s Complaint demonstrates that plaintiff has properly pleaded a cause of action for wilful misconduct.

At p. 6, paragraph 26, lines 20-26 of Plaintiff’s Complaint, Plaintiff alleges as follows:

From and after said time, Defendants, and each of them, in addition to negligently examining and caring for VICKIE SMITH and minor Plaintiff JOANY SMITH, while in utero, and thereafter, were guilty of wilful misconduct in that they knew (historically) that Vickie Smith had delivered, about 11 years earlier, a pre-term (premature) infant, and they did not seek written authorization from Vickie Smith, much less seek to obtain the prior child’s records, though presumptively, said records were available (Title 22, C.C.R. § 70757(c)) to Defendants and each of them.

In Prescod, et al. v. AMR (9th Cir. 2004) 383 F.3d 861, a diversity case applying California substantive law, the court, citing Dazo v. Globe Airport Sec. Servs. (9th Cir. 2002) 295 F.3d 934, stated as follows, in discussing wilful misconduct:

Determining willful misconduct is based on a subjective standard and can be satisfied through circumstantial evidence. (Prescod, supra, at 870.)(Emphasis added.)

Given the foregoing, it is clear that Plaintiff has pleaded facts sufficient to maintain a cause of action for same. As such, defendants’ demurrer must be overruled. (See Part 4 of 5.)

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

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