A recently filed California medical malpractice lawsuit alleges that a woman’s OBGYN and related parties failed to diagnose a fetus’ congenital abnormalities that should have been observed by multiple ultrasounds performed during prenatal care.
The California birth injury medical malpractice lawsuit alleges, in part:
“Plaintiffs’ harm – Baby ROCCO being born with congenital anomalies and concerns for arthrogryposis multiplex congenita (AMC) – ordinarily would not have occurred unless someone was negligent. Plaintiffs’ harm occurred while MONICA (and her unborn fetus) was (were) under the prenatal care and control of Defendants. MONICA’s and her unborn son’s voluntary actions did not cause or contribute to the event[s] that harmed Plaintiffs. In other words,
the evidentiary rule of res ipsa loquitur applies here regarding both the wrongful life and wrongful birth causes of action set forth herein above and below:
(a) the accident or injury must be of a kind which ordinarily does not occur in the absence of someone’s negligence – a baby is not ordinarily born into this world, 23 years into the 21st Century, with congenital anomalies and concerns for arthrogryposis multiplex congenita (AMC);
(b) it must be caused by an agency or instrumentality within the “exclusive” control of the defendant or group of defendants – Defendants provided all prenatal care to MONICA including use of their own in-office ultrasound equipment for all ultrasound examinations performed during MONICA’s prenatal care from March 1, 2023, through and including October 5, 2023; and
(c) the accident or injury must not have been due to any voluntary action or contribution on the part of the plaintiff – the missed diagnosis of one or more congenital anomalies from at least May 5, 2023, was the result of [Defendant M.D.’s] breach of her duty to refer MONICA to a specialist (MFM), improper administration and use of the ultrasound (by the unidentified technician and [ ]), improper studying and interpretation of the ultrasound (by [Defendant M.D.]) for she, individually, was responsible for interpreting each and every ultrasound performed in Defendants’ office. Plaintiffs allege herein that [Defendant M.D.] was unable to interpret any ultrasonography studies wherein she was not present during the actual ultrasound examination, for [ ] has already declared that “no static/ dynamic images [are] available. We only print still imaging[.]” Given the missed diagnosis (any congenital anomalies and/or concerns for AMC), [Defendant M.D.] was operating in the dark and completely unable to make appropriate recommendations to her patient. It is beyond the scope of a sonographer’s practice to interpret ultrasound studies.
In addition to the evidentiary rule of res ipsa loquitor which acts as a presumption affecting the burden of producing evidence, Plaintiffs allege herein that the rule as to shifting the burden of proof, as in Haft v. Lone Palm Hotel, 3 Cal.3d 756 (1970), applies to the case at hand where we are presented with non-negligent plaintiffs where there is a substantial probability that a defendant’s negligence was a cause of an accident, and when defendant’s negligence makes it impossible, as a practical matter, for the plaintiff to prove causation conclusively. Smith v. Americania Motor Lodge, 39 Cal.App.3d 1, 5 (1974).
Defendants should have had the ability to maintain and store MONICA’s medical record – in its entirety and including – all ultrasound examinations, including real time visualization of the fetus, and not just a few still printed images taken during the multiple examinations that consisted of real time visualization of the fetus at various points in time during the developing stages of life. Defendants have nothing other than what is referenced hereinabove.
Plaintiffs allege, based on information and belief, that Defendants never had the ability to record the real time visualization of the fetus, for their medical device (ultrasound machine) was archaic, out-of-service, in need of maintenance and/or just not adequate to provide competent prenatal care to the Bay Area in modern times.
In the alternative to the foregoing allegation, Plaintiffs allege, based upon information and belief, that Defendants, individually and/or in concert, destroyed the evidence (real time visualization in the form of video, static and/or dynamic imaging) immediately after Baby ROCCO was born on October 6, 2023. When [Defendant M.D.] delivered the baby –like others in the room – she was shocked by the baby delivered right before her eyes. Unlike Defendants, Plaintiffs have videos that tell the story! In view of the foregoing, Plaintiffs assert that the burden of proof has now shifted to Defendants for their own negligence makes it impossible – or not – as a practical matter, for Plaintiffs to prove causation conclusively. See, Exhibit F, April 17, 2024, communication from [ ] to MONICA concerning the absence of video of ultrasounds.”
On the dates and times aforesaid herein this entire Complaint, the Defendants, and each of them, failed to exercise the proper degree of knowledge and skill and so negligently, carelessly, recklessly, wantonly, and unlawfully treated, provided care, monitoring, examination, and other professional services in that, among other things, they failed to adequately and properly diagnose and treat MONICA from at least May 5, 2023 – if not before – through and including her son’s birth on October 6, 2023, and later.
Baby ROCCO claims that Defendants were negligent because they failed to inform MONICA of the risk that her unborn child would be born with any congenital or fetal anomaly let alone multiple congenital abnormalities. Defendants’ negligent or wrongful acts or omissions prevented ROCCO’s mother from terminating her pregnancy, resulting in the birth of ROCCO with severe disabilities and defects. But for Defendants’ negligence, ROCCO would not have been born to experience the pain and suffering attributable to the disabilities.”
Ramos v. Pollard, M.D., Superior Court of California, County of Alameda, Case No. 24CV083414.
If you or your baby suffered a birth injury (or worse) during prenatal care, labor, and/or delivery in California or in another U.S. state, you should promptly find a birth injury lawyer in California or in your state who may investigate your prenatal birth injury claim or labor and delivery birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.
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