Kaiser Medical Malpractice Lawyer Blog

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

THE THIRD CAUSE OF ACTION FOR WILLFUL MISCONDUCT FAILS

The Third cause of action, entitled "Willful Misconduct," is based on the same allegations as those contained in the First cause of action for medical malpractice. The pleading does not contain the type of allegations of intentional conduct needed to maintain a cause of action for Willful Misconduct.

Willful Misconduct is generally an element within a cause of action or a claim for damages, such as elder or dependent adult abuse or a claim for punitive damages, and it is doubtful that there exists an independent cause of action in California for willful misconduct. Willful misconduct should be categorized as battery, fraud, etc. The plaintiff seems to be attempting to plead some sort of catch-all intentional tort under the title of "Willful Misconduct."
Nevertheless, in the event that there does exist such a cause of action, plaintiff has failed to set forth facts in regard to the demurring defendants sufficient to maintain the cause of action. In Nazar v. Rodeffer, 184 Cal. App.3d 546, 552 (1986), the court discussed the concept of willful misconduct as follows:

"The concept of willful misconduct has a well-established, well-defined meaning in California law. Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results."

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

Continue reading " Willful Misconduct By Sacramento Doctors Basis For Malpractice, Part 5 of 5 " »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Here, plaintiff alleges that defendants failed to advise her mother, Haley White, that a pregnancy with twins carries more risks than a single fetus, and that the defendants failed to advise the plaintiff's mother of her right to an abortion. Plaintiff does not allege that there was anything wrong with the pregnancy, other than the fact that the plaintiff was a twin, or anything else to suggest that the plaintiff's mother was at risk for complications or needed special precautions to prevent pre-term labor. Unlike Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 165 Cal.Rptr. 477, where a properly performed genetic test would have provided a high probability (id. at p. 815) of disclosing the risk of Tay-Sachs disease, there is no test that could have been offered to plaintiff's mother which would have revealed the potential problems allegedly suffered by plaintiff, Joan White. Additionally, when testing revealed the shortening of Haley White's cervix, and cerclage was recommended, Ms. White refused it.

A hypothetical possibility that some unstated or unknown action on the part of the moving defendants might have revealed some problem does not establish a reasonably probable causal connection (Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 403) between defendants' alleged negligence and plaintiff's injuries. A less than 50-50 possibility that defendants' omission caused the harm does not meet the requisite reasonable medical probability test of proximate cause. (Id. at p. 404).

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

Continue reading " Failure To Act By Sacramento Doctors Results In Birth Injuries, Part 4 of 5 " »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

PLAINTIFF’S COMPLAINT LACKS
SUFFICIENT FACTUAL SUPPORT AND IS UNCERTAIN

California recognizes a parent's cause of action for the wrongful birth of a genetically deformed child where the physician negligently failed to inform the parent of the risk of bearing such a child. (Turpin v. Sortini (1982) 31 Cal.3d 220, 225, 182 Cal.Rptr. 337, 643 P.2d 954) In a successful wrongful birth and wrongful life action, the parents may recover for medical and extraordinary teaching and training expenses incurred during the child's minority, but the child may not also recover for those same expenses. (Turpin v. Sortini, supra, 31 Cal.3d at p. 236.) The child may only recover medical expenses and special damages where the parents are unavailable to sue or where the expenses are incurred beyond the time of the parents' legal responsibility for such care. (Ibid.) In addition, the child may not recover for pain and suffering and other general damages (id. at pp. 238-239), or for a loss of earning capacity (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 614, 208 Cal.Rptr. 899).

As in ordinary medical malpractice cases, the plaintiffs in a wrongful life and wrongful birth case must establish the following basic elements: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. (Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433; Turoin v. Sortini, supra, 31 Cal.3d at pp. 229-230.)

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

Continue reading " Malpractice By Sacramento Physician Leads To Wrongful Birth Lawsuit, Part 3 of 5 " »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

PLAINTIFF'S COMPLAINT IS PROPERLY SUBJECT TO DEMURRER

California Code of Civil Procedure § 430.10 provides the proper grounds for demurrer, stating in pertinent part:

"The party against whom a complaint ... has been filed may object, by demurrer ... to the pleading on any one or more of the following grounds:(e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain." As used in this subdivision, "uncertain" includes ambiguous and unintelligible. At this time, demurring defendants demur solely to plaintiff's Second cause of action for Wrongful Life and Third cause of action for Willful Misconduct, California Code of Civil Procedure § 430.50(a) states in pertinent part, "A demurrer to a complaint ... may be taken to the whole complaint ... or to any of the causes of action stated therein."

It is well settled that a plaintiff must set forth specific facts in a Complaint in order to enable a defendant to intelligently respond to the pleading without having to guess or speculate as to the items of material or essential facts. (Ankenv v. Lockheed Missile & Space Company, (1979) 88 Cal.App.3d 531, 537). In addition, in examining a Complaint for its legal sufficiency to withstand a demurrer, [a] demurrer admits all material and issuable facts properly pleaded [citations omitted]. However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. (Gruenberg v. Aetna Insurance Co, (1973) 9 Cal.3d 566, 572).

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

Continue reading " Wrongful Birth Suit Filed Against Sacramento Hospital, Part 2 of 5 " »

It is 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, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Defendants Barbara Smith, M.D. and the XYZ Perinatal Medical Group, Inc.'s Demurrer to Plaintiff Joan White's Complaint.

PLEASE TAKE NOTICE that defendants Barbara Smith, M.D. and XYZ PERINATAL MEDICAL GROUP, INC., will and hereby do Demur to plaintiff's Complaint on the following grounds:

1. The Second Cause of Action for Wrongful Life seeks non-recoverable damages and fails to state facts sufficient to state a cause of action, and is uncertain;

2. The Third Cause of Action for Willful Misconduct fails to state facts sufficient to state a cause of action, and is uncertain.

This Demurrer will further be based upon this notice, the attached Memorandum of Points and Authorities, all records and pleadings on file herein, and any other further oral and/or documentary evidence as may be presented at the time of this hearing of this Demurrer.

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

Continue reading " Mother Sues Sacramento Hospital For Medical Malpractice, Part 1 of 5 " »