Sacramento Personal Injury Lawyer Blog

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

The Evidence Demonstrates Triable Issues Of Whether Defendant Dr. Lee Breached the Standard of Care And Whether She Caused George Jackson's Brain Damage

Even if the defendant could overcome the several evidentiary defects of her motion, she has still failed to demonstrate as a matter of law that she met the standard of care or that she did not cause George's brain damage. The defendant's expert evidence focuses on the events of 17:22, when defendant Lee finally went up to see her patient. At that point., she contends, she reacted quickly and her supervisor endorsed her actions. The defendant necessarily disregards her prior lapses that created the emergency in the first place. In other words, while she boasts that she acted quickly to "put out the fire," she ignores her own negligence that started the fire in the first place. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

The expert testimony of Dr. Jason White, board-certified in Obstetrics and Gynecology, and a Clinical Professor of medicine at the University of California, explains defendant Dr. Lee's multiple breaches of the standard of care and how they caused George's brain damage. The defendant failed to ask for the objective data concerning the fetus's status. She relied on vague and generalized interpretations from a nurse, rather than soliciting facts that she could use to make a determination.

If she had asked those questions, she would have fully appreciated the growing danger to George. The baby's baseline heart rate had become 170 beats per minute when not in deceleration, which was not only an increase but abnormally high as well. The baby was already tachycardic at 17:00, but the defendant failed to ask about that. She also would have ordered the Pitocin to be turned off, because that was contributing to the fetal distress.

Continue reading " Sacramento Baby Suffers Brain Damage During Botched Delivery, Part 13 of 13 " »

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

The Ross declaration is equally week on the issue of causation. The defense expert asserts that the few minutes of delay in attempting a vacuum extraction did not cause George's brain damage. The declaration fails to address the manifest question, though: If that did not cause the brain damage, then what did? Further, the defense expert fails to address the delay from 17:00 to 17:22. If this did not cause brain damage either, then what explanation does the defense expert offer? The defense expert's declaration is silent about all of these questions. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

As Kelley held, without illuminating explanation, [an expert's declaration is] insufficient to carry [the defendant's] burden in moving for summary judgment. Moreover, because the defendant's supporting declaration is inadmissible to support summary judgment, the defendant failed to meet her threshold burden of persuasion. The burden of production thus never shifted to George, so the defendant's motion for summary judgment should be denied even without considering the opposing evidence. C.C.P. § 437c(o)(2); FSR Brokerage, 35 Cal.App.4th at 73 n.4, 41 Cal.Rptr.2d at 407 n.4 (1995) (plaintiff has no burden to show a triable issue if the defendant failed to meet its initial burden of showing by admissible evidence the absence of a triable issue of material fact).

The defendant may attempt to cure these deficiencies by having her expert submit a new or supplemental declaration. Again, however, any such declaration should be rejected as untimely.

Continue reading " Delays By Sacramento Physicians Result In Child's Birth Injuries, Part 12 of 13 " »

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

The Richard Green Declaration is Insufficient To Support Summary Judgment

If the defendant relies upon expert testimony to meet its burden of persuasion, that testimony must meet the standards of admissibility. An expert's bare conclusion is insufficient to support summary judgment, just as it would be insufficient at trial. In Kelley v. Trunk, 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 (1998), the appellate court held that an expert declaration was insufficient to support summary judgment. That declaration was remarkably similar to the Willis Declaration in the present action. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Kelley held that the declaration of the expert was deficient to support summary judgment. As the appellate court stated, to be admissible the expert had to explain the connection between the recitation of facts gleaned from the medical records and the ultimate opinion:
[A]n expert opinion is worth no more than the reasons upon which it rests. Here, the crucial issues were: What was the nature of the disease or condition that required Kelley's surgery? Was it brought on by the laceration? What symptoms of this condition reasonably might have been observable at the time Kelley complained to Dr. Trunk of continuing intense pain unmediated by medication? Should a reasonable doctor at this point in time have recognized the possibility of severe complications? If so, why? If not, why not? Would complications of the kind Kelley eventually suffered have become evident any earlier than three or four days after the laceration? Would earlier intervention have mitigated Kelley's injury? Herndon's declaration addressed none of these issues. Without illuminating explanation, it was insufficient to carry Dr. Trunks' burden in moving for summary judgment. 66 Cal.App.4th at 524, 78 Cal.Rptr.2d at 124.

In the case at bar, the Ross declaration has the same deficiencies, because there are no explanations or answers to the analogous questions that would be relevant in this case. Why didn't defendant Lee recognize the complications earlier? In view of Ms. Jackson's higher risk, and thus greater dangers to the baby, why was it within the standard of care to wait an additional 22 minutes to check on the labor, after the defendant was plainly aware of the risk of hypoxia (as indicated by the order for 8 liters of oxygen by mask)?

Continue reading " Sacramento OB/GYNs Caused Birth Injuries, Part 11 of 13 " »

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

The Defendant's Separate Statement Fails to Include Citations to Evidence that Support the Assertions

Another flaw of the defendant's Separate Statement is the failure to include citations to evidence that support the assertions of fact. Material Fact 2 asserts that the defendant Lee initiated care of Ms. Jackson only once, at 5:22 p.m. As support, the defendant cites several lines on pages 63 through 65 of co-defendant Stein's deposition.

Defendant Lee's testimony, however, does not state the supposed Material Fact. That testimony merely states that it was her custom to tell the attending physician (co-defendant Stein) that if there was a call from a nurse about Ms. Jackson, it would have been her practice to notify the attending physician that she was going to see the patient and, later, to tell him what was happening with the patient. The cited testimony does not state or even insinuate that defendant Lee initiated care of Ms. Jackson only once at 5:22 p.m. In fact, defendant Lee admitted that she does not even remember getting a call from a nurse before 5:22 p.m.

The defendant also relies on her Exhibit E to prove that she entered Ms. Jackson's room at 5:22 p.m., but that document has significant evidentiary flaws. There is no testimony regarding who wrote the notes or when they were written. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

The defendant includes as part of her counsel's declaration several other documents, but the defendant's Separate Statement cites none of them in support of the motion or the alleged material facts. In particular, the defendant includes pages 21, 24, 25, 34, 35, 43, 44, 52, 70-72 and 77 from the deposition of co-defendant Stein.

Continue reading " Sacramento Child Suffers Brain Injury During Birth, Part 10 of 13 " »

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

The appellate courts have emphasized that a defendant's failure to provide a foundation for the documents on which it is relying will require denial of a motion for summary judgment. In Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 719-710, 128 Cal.Rptr.2d 529, 541-542, an attorney for a defendant offered a declaration in support of a motion for summary judgment. That declaration attested to the purported authenticity of exhibits in support of motion for summary judgment. The declaration failed to show that attorney was custodian of records, that the documents were prepared in the regular course of business, that he prepared documents or circumstances under which the documents were created. The trial court ruled that the documents were inadmissible due to lack of foundation, and the appellate court affirmed that ruling.

The defendant's Separate Statement of Material Facts must cite to admissible evidence. A violation of this rule is sufficient in itself to deny the motion for summary judgment. C.C.P. § 437c(b). Because the defendant's Material Facts 3 and 4 are unsupported by admissible evidence, the motion for summary judgment can be denied on that basis alone. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

The defendant may attempt to add additional evidence to cure this defect in her reply brief. If she does so, that effort should be rejected. New evidence can be offered in a reply only in exceptional circumstances. Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362 n.8, 11 Cal.Rptr.2d 811, 819 n.8.

Continue reading " Mother Of Brain Damaged Sacramento Child Sues Doctors For Birth Injuries, Part 9 of 13 " »

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

The Defendant Failed to Meet Her Threshold Burden of Proving that She is Entitled to Summary Judgment

The Evidence Upon Which the Defendant Relies Has No Foundation

The defendant relies upon one piece of evidence to try to prove that she acted within the standard of care: Defense Exhibit E, a photocopy of a portion of a fetal monitor strip. The defendant's lawyer also attached a document identified as Exhibit D, which she asserts is a portion of a fetal monitor strip. This document has all of the same evidentiary infirmities as Exhibit E, plus it is not relevant to any issue because it is not cited anywhere in the defendant's Separate Statement.

The defendant's Separate Statement shows that she relies solely on this document as proof that of her assertion that she acted quickly and timely, and within the standard of care. The document, however, has no foundation and is unauthenticated. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Two of the material facts in defendant Lee's motion rely upon this unauthenticated document that her lawyer attempts to interpret and introduce into evidence. Material Facts 3, 4 and 5 rely upon alleged medical records that have no foundation. There is no declaration from a custodian of records showing that this document concerns Ms. Jackson or her baby. There is nothing on the document that is self-authenticating. There is handwriting on the document, but there is no identification of the author of the handwriting. There is no declaration or deposition testimony from anyone who purports to be the author. Further, the writings themselves are plainly handwritten, often illegible, and using a plethora of uncommon abbreviations.

Continue reading " Sacramento Doctors Breached Standard Of Care During Delivery, Part 8 of 13 " »

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

The plaintiff has no burden to show a triable issue if the defendant failed to meet its initial burden of showing by admissible evidence the absence of a triable issue of material fact. FSR Brokerage, Inc. v. Superior Court, 35 Cal.App.4th 69, 73 n.4, 41 Cal.Rptr.2d 404, 407 n.4 (1995) (citations omitted). Even if the defendant makes its initial showing in support of summary judgment, it is not necessarily entitled to summary judgment. The showing merely shifts the burden to the plaintiff to show a triable issue about one of the elements of the action or of those affirmative defenses. C.C.P. § 437c(o)(2). For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

A court must liberally construe the evidence offered in opposition to a motion for summary judgment, and strictly construe the evidence offered in support of the motion, when it is determining the existence of a triable issue of fact. Speaker v. Adamson Cos., 30 Cal.3d 358, 373, 178 Cal.Rptr. 783, 791 (1981). A court must consider the direct as well as the circumstantial evidence on each issue, and the reasonable inferences that can be drawn from the evidence. Mann v. Cracchiolo, 38 Cal.3d 18, 210 Cal.Rptr. 762, 771 (1985).

In ruling on the motion [for summary judgment], the court must consider all of the evidence and all of the inferences reasonably drawn therefrom ... and must view such evidence ... and such inferences ... in the light most favorable to the opposing party. Aguilar, 25 Cal.4th at 843, 107 Cal.Rptr.2d at 856 (citations and internal quotations omitted).

Continue reading " Physician Malpractice Results In Sacramento Child's Brain Damage, Part 7 of 13 " »

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

The Defendant's Multiple Breaches of the Standard of Care Caused or Contributed to George Jackson's Brain Damage

The defendant's delay in obtaining the necessary information to make a determination about the fetus's status, and the consequent delay in having the baby delivered, was a substantial factor in causing or contributing to his birth injuries. By failing to attend to Ms. Jackson immediately upon receiving the 17:00 telephone call, defendant Lee delayed the delivery of George Jackson by more than 20 minutes. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Even if defendant Dr. Lee and Dr. Stein first tried a failed vacuum extraction at 17:01 or 17:02, they would have moved to perform a Cesarean-section by 17:05, with the baby delivered within about 10 minutes. (Defendant Lee in her deposition stated that a Cesarean-section could be performed at this hospital within 10 minutes.) This would mean that the baby would be delivered at about 17:15 to 17:20, thus avoiding an additional 22 minutes of fetal distress and avoiding the deprivation of oxygen to George's brain. Indeed, the defense expert acknowledges that the bradycardia did not develop until 17:20, so that event would have been avoided entirely or would have been sustained for only a minute or two. The defense expert concedes that a minute or two of fetal bradycardia would have been harmless.

The Defendant's Burden To Prove that She is Entitled to Judgment as a Matter of Law

The burden of persuasion on a defendant's motion for summary judgment in California is clear: It is on the defendant.

Continue reading " Sacramento Baby Suffers Brain Damage During Birth, Part 6 of 13 " »

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

The Expert Evidence About the Defendant's Multiple Breaches of the Standard of Care

Defendant Dr. Lee breached the standard of care in three significant ways. First, she failed to obtain complete information from the nurse concerning the status of the labor and delivery at 17:00. The standard of care for a physician, whether resident or attending, required the physician to learn from the nurse the data that is necessary for the physician's own diagnosis and assessment of the fetal status. She cannot rely only upon the nurse's interpretation of the data. Also, the standard of care required a physician to monitor Ms. Jackson closely, because of her pre-eclampsia and gestational diabetes. By failing to ask for specific information, the defendant failed to fulfill that duty.

Second, if the defendant had asked for and obtained accurate data about the status of the labor, then the standard of care required her to understand that the fetus was having severe variable decelerations, diminished variability, fetal tachycardia and that the fetus was at risk for hypoxia. The standard of care would have required the physician to order the Pitocin to be turned off, and to assess the fetus's status immediately and personally. Instead, the defendant waited another 22 or 23 minutes before examining Ms. Jackson. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Third, the standard of care required the defendant to deliver the baby immediately - as rapidly as she could get to Ms. Jackson's room after the 17:00 telephone call, which the defendant physician testified took only a couple of minutes.

Continue reading " Mother's Pregnancy Mishandled By Sacramento Doctors, Part 5 of 13 " »

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

If defendant Lee had asked, she would have learned that the variable decelerations were worsening (lower heart rate and longer duration) and the baseline was increasing and the variability was diminishing. A baseline increasing means that the fetus's heart rate was getting faster when not in deceleration (fetal tachycardia). Here, the fetus's heart rate had increased as high as 170 beats per minute from a previous normal baseline of approximately 150 beats per minute. This increase is indicative of fetal hypoxia (oxygen deprivation). Also, defendant Lee would have learned crucial information that the variability was diminishing as well, which is also indicative of hypoxia. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

At this point (17:00), Ms. Jackson's condition required that the Pitocin be discontinued. Continuing the Pitocin in light of Ms. Jackson's fetal monitoring changes is contraindicated, because uterine contractions decrease blood flow to the fetus. Pitocin has the effect of increasing the strength of the contractions. Pitocin should be discontinued if there is fetal distress. Lee did not order the Pitocin to be discontinued at 17:00. In fact, a nurse turned the Pitocin off, but waited about another 20 minutes before doing so.

At 17:18, a nurse telephoned defendant Dr. Lee once more and reported that there were variable decelerations that were deeper with a slower return to baseline. Most probably, to a reasonable degree of medical probability, these variable decelerations were the result of prolonged administration of Pitocin, or umbilical cord compression, or a combination of both. Defendant Lee, after five hours since her last visit with Ms. Jackson, at last went to examine her at 17:22 or 17:23. Three minutes earlier, however, the baby developed fetal bradycardia (a slow heart rate in the fetus). A normal fetal heart rate is 120 to 160 beats per minute. George's heart rate had slowed to 80 to 90 beats per minute.

Continue reading " Birth Injuries Caused By Sacramento Physicians, Part 4 of 13 " »

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

The nurse's reference to "variables" means the variable decelerations of the fetus's heart rate. There are many different types of decelerations of fetal heart rate. "Early decelerations" are decreases in the fetus's heart rate that start at the beginning of a contraction and stop at the end of the contraction. "Late decelerations" are transient decreases in fetal heart rate that begin at the peak of the uterine contraction and do not return to baseline (the fetal heart rate over a period of time) until well after the contraction has ended. Late decelerations are indicative of utero placental dysfunction (insufficiency of the placenta to perform its function).

"Variables" (variable decelerations) are decelerations that are unrelated to the uterine contractions. They appear on a monitor strip as drops from the baseline heart rate and promptly return to baseline. Typically, this fetal heart pattern is the result of umbilical cord compression (the cord is compressed, which impairs the flow of blood and oxygen to the fetus) or maternal hypertension (which is part of pre-eclampsia). Variables that are persistent and continue to drop to very low heart rate levels, and that lengthen in duration, can indicate fetal distress. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

According to the hospital's Physician Order records, defendant Dr. Lee ordered 8 liters of oxygen by mask and ordered the nurse to turn off the epidural (but not the Pitocin). This is a substantial amount of oxygen delivered in a manner intended to oxygenate the blood immediately. By using a mask (as opposed to a nasal cannula, which blows oxygen into the nostrils), the patient gets oxygen regardless of whether she breathes through her nose or her mouth. The amount of oxygen and the manner in which defendant Lee ordered it delivered indicates a concern about the variable decelerations. The reason for ordering 8 liters of oxygen by mask is to try to increase immediately the oxygen in the mother's blood, which in turn oxygenates the fetus's blood.

Continue reading " Sacramento OB/GYN's Negligence Causes Birth Injuries, Part 3 of 13 " »

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

When she arrived at the hospital at 0615, Ms. Jackson was in early labor. She also had a blood pressure of 171/108, which is quite elevated (above normal). Her previous blood pressures were approximately 100/60, so Ms. Jackson's blood pressure was dangerously high. She also had 3+ protein in her urine, which is also elevated. (Normal is 0.) She also had pedal edema (swollen feet).

Ms. Jackson thus had a condition known as pre-eclampsia; in fact, it was severe.
Severe pre-eclampsia increases the risks to the mother and the child. Those risks include: heart failure, stroke, seizure, and placental abruption. These can cause severe brain injury or death to the baby. This condition indicated that Ms. Jackson's labor must be closely monitored. A woman with severe pre-eclampsia should be delivered as expeditiously as possible in order to avoid these serious consequences. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

At 12:30, Ms. Jackson was placed on Pitocin. Pitocin is a drug that is used to induce labor or augment labor. For Ms. Jackson, it was being used to augment labor because she was having inadequate contractions. If a patient in Ms. Jackson's condition is on Pitocin, then the baby is at greater risk for hypoxia. This is because Pitocin increases the contractual forces of the uterus, reducing placental blood flow and its ability to transfer oxygen and carbon dioxide to and from the fetus. The standard of care in 1998 required a physician, whether attending or a resident, to be aware of these greater risks to the baby associated with the use of Pitocin in women with Ms. Jackson's condition.

Continue reading " Sacramento Baby Born With Severe Birth Injuries, Part 2 of 13 " »

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

Plaintiffs’ Opposition to Defendant Ana Lee's Motion for Summary Judgment; Memorandum of Points & Authorities

Summary of Argument

The defendant's motion rests on evidence for which there is virtually no foundation and no authentication. Because the defendant bears the burden of proof, its reliance upon inadmissible evidence requires denial of the motion (regardless of whether the plaintiff offers countervailing evidence. Further, even if the defendant could overcome the deficiencies of her evidence, the testimony of the Dr. Jason White (a board certified obstetrician and Clinical Professor of Obstetrics and Gynecology) establishes that Dr. Lee breached the standard of care. The testimony of Dr. White also establishes that defendant Lee's substandard care was a substantial factor in causing or contributing to George Jackson’s catastrophic injuries. For more information you are welcome to contactSacramento personal injury lawyer, Moseley Collins.

Statement of Facts

Ms. Jackson's Labor and Delivery Of Son George Jackson

Ms. Jackson was a pre-natal patient of the NorCal Perinatal Medical Group on January 26, 1998, the date she arrived at Universal Hospital. Ms. Jackson's expected due date was February 2, 1998, so she was considered at full term for this delivery.

Ms. Jackson developed gestational diabetes during her pregnancy with George. Because Ms. Jackson had gestational diabetes, she was at greater risk for perinatal (near delivery) complications.

Continue reading " Sacramento Family Sues Hospital For Birth Injury, Part 1 of 13 " »