Sacramento Brain Injury Lawyer Blog

IN AN ACTION TO RECOVER FOR PERSONAL INJURIES TO A CHILD, SPECIAL DAMAGES INCLUDE THE REASONABLE VALUE OF HOME ATTENDANT CARE PROVIDED BY THE CHILD'S PARENTS

The defense cannot bring up the quality of the care given to the minor by the parents in order to reduce the damages. The parents are entitled to reimbursement for the reasonable value of attendant care provided directly from the brain damaged child under the minor Plaintiff's cause of action for economic damages. In an action to recover for personal injuries to a child, special damages include the reasonable value of home attendant care provided by the child's parents.

In the case of Hanif v. Housing Authority (1988) 200 Cal. App.3d 635, the Court of Appeal held that, "It is established that the reasonable value of nursing services required by the defendant's tortious conduct may be recovered from the defendant even though the services were rendered by members of the injured person's family and without an agreement or expectation of payment. Where services in the way of attendance and nursing were rendered by a member of the Plaintiff's family, the amount for which the defendant is liable is the amount for which reasonably competent nursing and attendance by others could have been obtained." (Id. at 644.)

In the case of Rodriguez v. McDonald Douglas Corporation (1978) 87 Cal. App.3d 626, the Plaintiff was entitled to recover the reasonable value of 24-hour home attendant care provided by his spouse and necessitated by the defendant's tortious conduct. The Court held that,
"We reject the premise that the cost of attendant care, past or future, should not have been an item for consideration by the jury because of the presence of (the Plaintiff's wife). It is not part of her duties as a wife to render 24-hour-a-day attendant care." (Id. at p. 661.)

Thus, in this case, any attendant care provided by the parents in the past or which could be provided in the future must be compensated for at the reasonable rate which would be charged by a competent nursing attendant. Based upon evidence and testimony of various witnesses, the jury can properly determine the cost of such attendant care, regardless of who would provide it.

Continue reading "Sacramento-area Hospital Sued For Birth Injury, Part 3 of 3" »

THE PARENTS' QUALITY OF CARE FOR THE CHILD IS IRRELEVANT
The defense has no admissible testimony that the quality of care given to the minor child by his parents has in any manner contributed to the condition from which the child suffers. The child's suffering and severe brain damage has not been caused or contributed to by the care of the parents.

Further, it is irrelevant whether the parents provide the extraordinary care necessary for this child or hire an outside attendant to do so. The fact that the parents may voluntarily choose to devote some or all of their lives to providing the extraordinary level of attendant care services required by the minor Plaintiff in this case does not, and should not, insulate the defendant from being liable for the reasonable value of nursing attendant care services required by this child solely as the result of the defendant's negligence.

It would be confusing for the defense to suggest to the jury that the parents/relatives may, at no cost, provide those services and misleading to the jury in view of the current state of the law regarding Plaintiff's damages as referred to earlier under the case of Hanif v. Housing Authority, supra, 200 Cal. App.3d at 644 (see discussion below).

Additionally, requiring the jury to deliberate in order to calculate the number of hours of future care that would be provided by the relatives versus an outside hired nurse [where both are entitled to the same compensation] would necessitate an undue and totally unnecessary consumption of time.

Continue reading "Parents Of Brain Damaged Roseville Boy Sue Physician, Part 2 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Plaintiffs' Trial Brief on the Quality of Parents' Care (Hanif)

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION
This is a medical negligence action wherein the minor Plaintiff, DANIEL YAMAMOTO, a Roseville resident, suffered severe birth injuries. Each Defendant and their witnesses have no basis for making any reference to (1) the issue of the parents' quality of care or (2) to a claim that the minor Plaintiff's damages may be limited by the fact that the parents or relatives of the minor Plaintiff have in the past provided, and may in the future continue to provide, some attendant care for the minor Plaintiff.

1. The quality of the parents' care is irrelevant. The defense has no admissible testimony that the quality of care given to the minor child has in any manner contributed to the brain damaged condition from which the child suffers. Such testimony is excludable as irrelevant (Evid. Code § 210) and unduly time consuming and prejudicial (Evid. Code § 352).

2. The cost of the minor's care is not reduced because the parents may provide some care. Further, the defense cannot bring up the issue of the quality of the care given to the minor by the parents in order to reduce the damages. Where it is undisputed that the minor Plaintiff will require attendant care for the rest of his life, the jury's function is to determine the reasonable level and cost of such care to be included as plaintiff's damages. The jury function is not to determine who will provide the care (Hanifv. Housing Authority (1988) 200 Cal. App.3d 635, 644). Based upon this clear authority, Plaintiffs attach a proposed jury instruction regarding the holding in Hanif.

Continue reading "Roseville Child Suffers Birth Injuries, Part 1 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

IV THE MOTHER DOES NOT HAVE TO SHOW CONTEMPORANEOUS OBSERVATION OF HER CHILD'S BIRTH INJURY TO CLAIM EMOTIONAL DISTRESS AS A DIRECT VICTIM

The plaintiff mother does not have to show contemporaneous observation of a bystander under Thing v. La Chusa (1989) 48 Cal.3d 644, to claim emotional distress from injury to her child because the mother is a direct victim.

A. Because Gupta Owed a Preexisting Duty of Care to Burgess, the Criteria for Recovery of Negligent Emotional Distress Enunciated in Thing Are Not Controlling in This Case.

In contrast [to bystander], the label direct victim arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law or that arises out of a relationship between the two. [Citation omitted.] In these cases, the limits set forth in Thing, supra, ... have no direct application. [Citations omitted.] Rather, the well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case. (Emphasis and brackets added.) (Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1064, 1072-1073.)

Consequently, the elements of emotional distress for the plaintiff mother are the elements of negligence: We have repeatedly recognized the [t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. ... The traditional elements of duty, breach of duty, causation, and damages apply. (Id. at p. 1072.)

Continue reading "El Dorado Child's Birth Injury Results In Lawsuit Against OB/GYN, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

The Third District cited the Second District case of Zambrano v. Dorough (1986) 179 Cal.App.3d 169, a medical negligence case wherein the plaintiff asserted the defendant physician's negligent misdiagnosis caused her hysterectomy; she also asserted emotional distress.

The Third District drew a distinction between the medical negligence action and found the emotional distress based upon a different allegation that the physician refused to treat her:
We are likewise convinced that Zambrano should be permitted to proceed against Dorough for the loss of her reproductive capacity. That injury is of a different type than the emotional distress she allegedly suffered from Dorough's refusal to treat her and the pain and suffering and out of pocket losses allegedly accompanying the negligent misdiagnosis. The cause of action is based upon the injury to the plaintiff ... [ ] If the complaint alleges violation of a different primary right, it states a different cause of action. (4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 25, p. 69.) (Emphasis added.) (Zambrano v. Dorough, supra, 179 Cal.App.3d at p. 174.)

To emphasize the point that the medical negligence action was separate from the emotional distress action, the Second District continued: Zambrano's right to be free of the transitory damages of discomfort and distress is separate from and independent of her right to have children, a much more serious complication not apparent at the time of the earlier 5 problems. (Id.)

Continue reading "Hospital And Physician In Sacramento-area Sued For Birth Injury, Part 7 of 8" »