Sacramento Injury Lawyer Blog

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

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 a personal injury case present such issues to the court.

Defendant's Opposition Motion cont.

b. The Allegations Do No Support a Claim for Negligent Infliction of Emotional Distress (NIED)Based on a Bystander Witness Theory.

The third case relied on by Cindy Jones is Ochoa v. Superior Court, supra, 39 Cal.3d 159. Ochoa is a bystander witness case. Plaintiffs were the surviving parents of Rudy Ochoa, who as an inmate in the Santa Clara County juvenile hall. His parents visited him and found him extremely ill. The mother spoke with authorities, expressing concern that her son was not receiving necessary treatment. His mother was at his bedside and made repeated requests that her son receive medical treatment, including requesting that she be allowed to take him to a private physician. She remained at her son's bedside. The son died. The Supreme Court held that the mother could assert a cause of action for NIED as a bystander witness because she had personally witnessed the failure of the medical personnel at the juvenile hall to provide medical care to her son. The court further held that the father could not assert the claim because he had not witnessed the lack of care but had only been told of the situation by his wife.

To recover for NIED as a bystander witness, a plaintiff must be present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim. (Thing v. LaChusa, supra, 48 Cal.3d at pp. 667-668.) In Bird v. Saenz, supra, 28 Cal.4th at pp. 920-921, the Supreme Court reiterated the Thing requirement that the plaintiff be present at the scene of the injury-producing event at the time it occurs, and contemporaneously be aware that it was causing injury to the victim. In Bird, the plaintiffs were in the waiting room while their mother was negligently operated on, with the result the Bird plaintiffs had no sensory perception whatsoever of the [injury-producing event] at the time it occurred. (28 Cal.4th at p. 917.)

Continue reading "Infection At Sacramento Hospital Leaves Child Severely Injured, Part 4 of 4" »

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

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 a personal injury case present such issues to the court.

Defendant's Opposition Motion cont.

Burgess v. Superior Court, supra, 2 Cal.4th 1064, has no application to this action. Burgess is limited to the question addressed by the Supreme Court: Can a mother recover damages for negligent inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery? (2 Cal.4th at p. 1069.) The court went on to state: Because the professional malpractice alleged in this case breached a duty owed to the mother as well as the child, we hold that the mother can be compensated for emotional distress resulting from the breach of the duty. For public policy reasons that have been previously articulated by this court, however, these damages do not extend to emotional distress due to loss of affection, society, companionship or similar harm that the mother may incur in adjusting to and living with the child's impairments. (Ibid.) This is not a birth injury case. This is also not a case where a physician or other health care provider has a duty owed to two patients at the same time as a obstetrician does in the case of a delivery. Burgess does not support a claim by Cindy Jones that she can recover damages for exposing her family to a contagious disease.

Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, also has no application here. There, the family member, the husband of the patient, sued based on the emotional distress he suffered when his wife, following the dictate of the health care provider, informed him that she had a sexually transmitted disease.

Continue reading "Infected Child From Sacramento Sues Her Doctor, Part 3 of 4" »

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

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 a personal injury case present such issues to the court.

Defendnat's Opposition Motion cont.

CINDY JONES CANNOT RECOVER FOR ANY ALLEGED LOSS OF HER DAUGHTER'S CONSORTIUM.
It appears that Cindy Jones is attempting to recover damages she allegedly suffered because her daughter became infected. This appears to be a loss of consortium claim. It is well-settled that a parent cannot recover damages for the loss of a child's consortium. (Baxter v. Superior Court, supra, 19 Cal.3d 461.) The motion to strike should be granted.

CINDY JONES DOES NOT HAVE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
In the opposition, Cindy Jones asserts that she has a valid cause of action for negligent infliction of emotional distress ( NIED ) because Defendants failed to diagnose, treat and warn Plaintiffs of the impending danger to which she unknowingly exposed family members and the public. Plaintiff relies on Burgess v. Superior Court (1992) 2 Cal.4th 1064; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916; and Ochoa v. Superior Court (1985) 39 Cal.3d 159. These cases do not support a claim for negligent infliction of emotional distress by Cindy Jones.

Continue reading "Sacramento Physician Sued For Negligence, Part 2 of 4" »

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

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 a personal injury case present such issues to the court.

Reply of Defendant Universal Hospital to Plaintiffs' Opposition to Defendant's Motion to Strike Portions of Complaint

INTRODUCTION.
This action is premised on care rendered to plaintiff Cindy Jones. Cindy Jones contends that Cedars-Sinai and the other defendants provided negligent care to her regarding a bump on her left hand. Cindy Jones alleges that she was negligently notified that she did not test positive for a highly contagious strain of staphylococcus (MRSA), causing her to fail to take precautionary measures and to unknowingly expose her family, including her daughter, the minor plaintiff, Tammy Jones, to the MRSA, resulting in the daughter's hospitalization. The first cause of action is asserted by Cindy Jones relating to the care she received at Universal Hospital in Sacramento, under Code of Civil Procedure sections 435 and 436, to strike from paragraph 12 of the first cause of action, page 3:27 to page 4:2, of the complaint:

Therein Plaintiff unknowingly exposed her family, including Co-Plaintiff Tammy Jones, and the general public to the highly contagious strain of MRSA, resulting in the infection and hospitalization of Tammy Jones.

These allegations have nothing to do with the claim by plaintiff Cindy Jones for negligence. Cindy Jones is seeking to recover damages for the loss of her daughter's consortium. Recovery of such damages is precluded by Baxter v. Superior Court (1977) 19 Cal.3d 461. If plaintiff Cindy Jones is trying to recover damages for negligent infliction of emotional distress as a bystander witness of the injuries allegedly suffered by her daughter, she has not alleged any facts showing that she had a contemporaneous awareness of any injury at the time it was occurring as required under Thing v. LaChusa (1989) 48 Cal.3d 644, 667-668 and Bird v. Saenz (2002) 28 Cal.4th 910, 920-921.

Continue reading "Sacramento Family Sues For Medical Negligence, Part 1 of 4" »

A Monterey County jury has ordered the state to pay $8.6 million to a motorcyclist who was severely injured when he struck six wild boars on a state highway in 2003. The jury held the state responsible for Adam Rogers' injuries because officials knew that wild pigs regularly crossing a stretch of Highway 1 just south of the Carmel River were creating a dangerous situation, but they did nothing to address it.

The injured motorcyclist, a male 45-year-old former karate teacher and champion kickboxer, suffered serious injuries and is now confined to a wheelchair. He and his wife sued the California Department of Transportation in Monterey County Superior Court.

The plaintiff argued the state knew the pigs were crossing the road to feed on vegetation in a nearby environmental restoration project. Although not admissible to show responsibility, the state later put up a pig-crossing sign and used hunters to help control the pig population. The plaintiff further argued the state created the situation with the wild boars and then once they created it and saw what was happening they did nothing to stop it.

Most of the $8.6 million award will go toward the plaintiff's medical bills. The injured motorcyclist requires around-the-clock care and won't walk again. He said he still suffers from gaps in memory as a result of massive head injuries he suffered when he was thrown from his motorcycle.

Continue reading "Huge Jury Award For California Motorcyclist Who Hit Wild Boar" »

The two brothers who were attacked by a tiger at the San Francisco Zoo are now filing a claim against the city of San Francisco, alleging negligence and defamation.

The brothers, Kulbir and Amritpal "Paul" Dhaliwal, along with a friend, 17 year-old Carlos Sousa, Jr., were attacked Christmas Day of this year by a 250-pound Siberian Tiger at the San Francisco Zoo. Apparently, the tiger scaled the walls of its habitat and viciously bit and clawed the three boys, seriously injuring Kulbir and killing Carlos. The tiger was eventually shot and killed by the police.

At first, the blame seemed to be placed on the boys' shoulders. The Zoo claimed the boys taunted the tiger maliciously, causing the tiger to become so distressed it attacked. In fact, the Zoo was so convinced the attack was the boys' fault that, despite the intense emotional and physical trauma experienced by the boys, the Zoo impounded their car and considered pressing charges against them for over a month.

New information has been discovered, however, that points the blame in a different direction. Upon inspection, the walls of the enclosure of the tiger's habitat were found to be lower than recommended by an accredited agency of the nation's zoos.

The Associated Press writes:

The [legal] documents allege the city failed in its duty to provide a safe zoo environment, defamed the brothers by spreading falsehoods about their possible role in provoking the attack and improperly impounded Kulbir Dhaliwal's car.

For the full story, please click on this link.

In my opinion, there is no shared fault here. The Zoo is at fault. Whether or not the boys were taunting the tiger before the attack is inconsequential. The walls of zoo animals' enclosures should not just be tall enough to cage mellow animals, but distressed animals as well, as animals may become distressed with or without human intervention. Zoos must take every precaution necessary to protect their patrons, which include young taunting boys and elderly gentlemen alike, in every situation. To take just enough precautions so your patrons are safe as long as the animals of your zoo, some of which are natural predators, remain calm and collected is absolutely ridiculous. It is, as the boys allege, negligent.

Here in Sacramento, California, there are not too many crazed Siberian Tiger attacks, but we do have our fair share of tragedies. If you or a loved one has been injured, and it is not your fault, I can help you. Please call me and my staff at 916.444.4444, or visit our website by clicking here, The Law Office of Moseley Collins. We can help you.

Injuries associated with amusement park rides always leave me a bit uneasy, and I find I am reminded of them any time our State Fair comes to our Sacramento home or when my family pleads with me to go to Disneyland. Recently, a lawsuit has been brought against a Six Flags Theme Park located in Kentucky. In this amusement park case, a 13-year old girl, Kaitlyn, was severely injured while on the Six Flag’s Superman ride. According to the case, one of the cables on the ride broke off, hitting Kaitlyn and severing off both of her feet.

The young girl felt the cable whip against her body and instantly smelt a foul, burning odor. She was taken to the hospital and doctors were able to reattach one, but sadly not both, of her feet. Kaitlyn and her family are suing the amusement park for “failing to maintain the equipment and to ensure rider’s safety”. So far, the amusement park has denied any liability in Kaitlyn’s accident. However, the ride has been shut down and dismantled since the date of her injury.

Amusement park injuries are more common than we would like to believe. In 2005, the U.S. Consumer Product Safety Commission put out a report that listed 15,000 injuries that occurred in the United States as a result of an amusement park ride. Amusement parks have the responsibility in maintaining a safe environment for its patrons and workers. If they fail in this regard, they may be found negligent and thus, liable, for any injuries that occur.

If you have been injured as a result of someone else’s negligence, please give me a call at the Law Offices of Moseley Collins. I am here to help.

Web Resources:

Filing Tells of Horror at Amusement Park, FindLaw

Two airplanes almost collided south of our Sacramento home on Thursday at the Los Angeles International Airport (LAX). The first plane, a WestJet, carrying 132 passengers was flying in from Canada. The second, a Northwest jet, carrying 150 passengers, was taking off. Reports state that the Northwest jet was traveling about 150 mph when the WestJet plane got in its way. Luckily, the WestJet plane was able to come to a stop before the two crashed into one another.

The dangerous mistake was made by both the WestJet pilot and the ground traffic controller for LAX. Reports state that the WestJet pilot was on the wrong radio frequency and could not get directions from the air traffic controller. When he was approaching the gate, the ground traffic controller cleared him without checking first with the air traffic controller.

No one was hurt in this close call. This accident could have been detrimental to many. If there was a crash and a subsequent lawsuit, the negligence of both the controller and pilot would probably serve as the cause.

If you or someone you love has been involved in a accident due to someone’s negligence, please call the Law Offices of Moseley Collins.

Fly, fly away…

For the full news article, please click here.

A lawsuit is being tried south of our Sacramento home in Los Angeles, California. A group of twelve Central American workers are suing the fruit companies, Dole and Standard, along with chemical companies, Dow and Amvac, after being exposed to dangerous amounts of pesticides. Eleven of the twelve men are now sterile, claiming that the high level of pesticides caused their infertility.

The pesticide, DBCP, was used throughout the 1970s and has since been banned in the United States. Plaintiffs claim that Dole carried out a number of intentionally dangerous activities, such as spraying the pesticides when the manufacture recommended mixing it into the soil and using 10 gallons of pesticide a year rather than the instructed 1 ½.

Dole has several defenses, stating that very little of the chemical was used only once or twice year (a tablespoon amount) and that the infertility in the workers could be due to other problems (such as excessive drinking and gonorrhea).

We will have to wait and see how this case turns out. Interestingly enough, there are four other cases in Los Angeles County, representing around 5,000 agricultural workers from the Central America area. Hopefully through all of this a lesson will be learned that we need to treat all employees with equal care, respect and protection.

If you or someone you know has been injured because of an employer’s neglect and abuse, please call our law offices. We are here to help.

Be careful out there…

For the full new article on this lawsuit, please click here.

A terrible accident occurred at a local radio station in our home of Sacramento, California. 107.9, a popular station playing contemporary music, held a contest on their show which challenged contestants to drink as much water as possible without urinating.

The final winner, a woman by the name of Jennifer Strange, drank more than two gallons of water during the contest. Tragically, within hours of returning home, Jennifer died from water intoxication.

This instance did not occur without warning. During the contest, Jennifer spoke very slowly and complained of a headache and feeling lightheaded. Some people even called in to warn the two disk jockeys that people can die of water intoxication. The DJs stated that at the time they believed people were trying to sway the outcome of the contest and they brushed off the suggestions.

There are currently about 30 people that are bringing a lawsuit against the station that were in some way associated with the contest. The lawyer of this group states that the company had specific policies that needed to be followed, but were not. The two disk jockeys, Steve Maney and Lukas Cox, state they believed that management had approved the game, although comments made by the station say this was untrue.

This case is indeed a tragic one. Negligence on part of the disk jockeys as well as possible negligence of the parent company itself will need to be investigated. If you or someone you love have been seriously injured due to someone’s negligence, please call our Law Offices.

Our condolences to the family of Jennifer…

For more information, please read the news article in the Sacramento Bee.