San Francisco Injury Lawyer Blog

The JonBenet Ramsey case raises questions about the work history of her alleged killer, Jon Mark Karr. Time CNN appropriately tracks Karr's history as a teacher that spans positions in Northern Caliifronia, Alabama, Bangkok, Netherlands and Honduras.
After reading Time's article one obviously asks how it is that Karr was able to land all of these positions where he was responsible for children. Why is it that so often these predators are able to obtain positions that are a perfect entree to children. The predator, once in such a position of authority, is assumed to be a person who is beyond reproach, is respected and has properly qualified for the position. Presumably this is based not only upon the education and experience of the teacher but also upon high moral standards exhibited at prior positions.

As is apparent in the Karr case, these assumptions by parents, may not always be warranted. Those responsible for hiring as well as those responsible for providing references, sometimes fail to do their job properly. This lack of care is actionable negligence of the worst kind because the lives of children are truly in the balance. Innocent children are set up by those who carelessly fail to track a job applicant and obtain references as well as those that intentionally provide false or misleading references in order to rid themselves of a problem they are well aware of.
The abuse can lead to both physical injury or death, as in JonBenet's case and/or permanent severe emotional scarring.

I was the lawyer representing Randi W., a young grade school girl allegedly molested by her vice principal. The vice principal was recommended for the position by teachers and administrative personnel at schools he had previously worked at. They knew this person had had a checkered history at their respective schools but still wrote glowing letters of reference. The Fresno Superior Court ruled that even false letters of reference could not expose the author or his or her employer to liability. I strongly disagreed and took the case up on appeal.

I saw the case all the way through from the Superior Court in Fresno to the Fifth District Court of Appeal to the California Supreme Court. The Supreme Court unanimously supported our perspective that letters of reference could be relied upon for hiring purposes and that they could be actionable (Randi v Muroc (Word Doc)). This opinion has been one of the most influential decisions of any state Supreme Court in the last decade.

But when a child is injured or molested by an employee, the entire hiring process is subject to scrutiny, just as the issue has surfaced in the JonBenet Ramsey case. In the State of California, the tort of negligent hiring provides recourse for such tragedies.

Especially here in the San Francisco Bay Area where there is great beauty and the weather often permits, bicycling has become both a significant mode of transportation and exercise. This area abounds with bikers, triatheletes and those athletes using the bicycle to train for other sports. The problem is that motorists just don't 'see' bicyclists or motorcyclists and their driving actions often support that statement.

I am not sure if it is because the drivers don't want to see bicyclists or motorcyclists and mentally dismiss them or because of bias against them or perhaps some other reason, but over and over again I hear the same testimony. 'I just didn't see her' or 'He came out of nowhere.' This has become a consistent theme among the many bike or motorcycle accident cases I have done over the years.

Our metropolitan areas were never very well designed to accomodate bicyclists and there are many drivers who really do not have a consciousness about bicyclists. San Francisco has taken some steps to study the cause of these accidents in the City and has implemented their solution (San Francisco Shared Lane Marking Study - PDF).

The City sees bicyclists getting 'doored' when a careless motorist has parked and is exiting his or her vehicle, or squeezed between lanes. In addition, I think that drivers of motor vehicles often have little patience for bikers, are in too much of a hurry and can hurt bicyclists badly. Bicyclists can be self centered as well, impeding traffic and frustrating motorists. The combination can be deadly.

I often wonder how it is that the most common cause of accidents involving bicyclists or motorcycles that I see is that motorists in cars or trucks do not see them--even though often times the riders are in plain view. I just finished a classic T Bone bicycle accident at the corner of Bay and Mason in San Francisco. That intersection was flat and open with no visual obstructions. My client was a triathlete and bicycled hundreds of miles each week, wearing the biking garb that many of us have become familiar with here. Sometimes I think these biking clothes themselves are like the confederate flag to some people and can trigger driver reactions alone that manifest in dumb driving responses.

In any event, my client Mark, was crossing Bay Street and a young woman new to the City was crossing Bay in the opposite direction looking to make a left turn. She looked right past Mark in his blue Postal Service lycra, on this clear sunny day and her van caught him mid calf on the left leg fracturing both his tibia and fibula midshaft. She testified that the first that she saw Mark, was when he was on the hood of her van. There was nothing between her van and Mark to impede her vision and this is simply classic for bike/ motorcycle accident testimony.

Although the fractures were the most dramatic of the injuries they were certainly not the only injuries as Mark's other knee had meniscus damage.

The good news was that the trauma surgeon at San Francisco General Hospital, Dr. McClelland is as good as it gets and he was able to insert a rod and other hardware and put Mark together again. The bad news has been that the recovery process has been slow, painful and arduous. Subsequent surgeries were necessary to remove screws and repair the meniscus and with each operation, there is down time and lost time from work--not to mention the inability to train for any triathalons or anything else.

I have worked with other triathletes and dedicated bicyclists in my practice as well as other athletes and their losses are unique and the repercussions can be dramatic. Often their lives integrate many hours of training and effort that has now come to an abrupt halt. This can result in a serious emotional response that includes, anger, depression, frustration and more. Often these changes in attitude and reactions can undermine interactions with others. Relationships often become challenging as the injured person now becomes dependant on others for care and hard to live with. He or she often has a social group that includes other athletes that are out training when the injured athlete can no longer function. If the injury is permanent, relationships can be destroyed and this aspect of the claim and injury is every bit as important as the more dramatic physical aspects.

Depending upon the severity of the injury and length of recovery time, some counseling can be helpful. Serious injuries require a tremendous amount of patience among the circle of people involved with the injured person. This includes their friends, significant other or spouse, therapists, physicians, nurses, etc.

I just finished a wrongful death case where a 30 year old woman died of one severe complication of gastric bypass surgery. She experienced what is termed an internal hernia, where the small intestine migrates through a hole intentionally made by most surgeons performing a Roux enY procedure using a laparoscope. There are many complications of gastric bypass surgery including gallstones, leakage of stomach contents into abdomen, nutritional deficiencies and more. See WebMD.
Internal hernia is not an uncommon complication of gastric bypass. It can be difficult to diagnose and disastrous if it remains undiagnosed. The danger is that the migrated intestine can twist on itself much like a garden hose can kink and cut off blood flow leading to inadequate or no blood flow and death of tissue. The hernia with migration of intestine is not necessarily acutely painful if it has not twisted on itself. One may simply feel generalized discomfort and abdominal pain that is not severe. The pain and associated problems can wax and wane because the intestine may migrate back through the hole to return to its original position. A patient may experience diarrhea and/or nausea or vomiting and be unable to eat. In some cases this can be confused with dumping syndrome by the treating physician. Often the pain is upper abdominal because the mesocolon hole that is made during surgery is in that location, above the umbilicus (belly button). The best test to diagnose the internal hernia is the CT scan, although a negative CT will not rule out the problem.

If portions of the 25 or more foot long intestine migrate through the hole in the mesocolon made by the laparoscope, sometimes the intestine can be trapped in the hole--it can get in but is unable to get out. If incarceration or twisting occurs the patient will likely experience severe pain requiring immediate treatment, probably to include surgery. Sometimes the symptoms can include those early symptoms of sepsis, either low or high temperatures, an increased respiration rate and/or increased heart rate. Careful monitoring of a patient with this complication in the differential diagnosis is essential and care must be taken to insure the patient does not descend into septic shock.

Actually, any patient with suspected internal hernia should have that complication ruled in or out without delay. Timing can be a life or death decision since no one knows when the migrated intestine can become twisted, incarcerated and ischemic.

Delivery of a large baby can lead to shoulder dystocia that may result in an Erbs Palsy or even brain damage under certain circumstances. For this reason, a treating physician must carefully consider and evaluate fetal size before delivery. This is one area of obstetrical litigation in the medical malpractice arena that is seen repeatedly. It is important for a treating OB or primary treating doctor to assess the potential for this problem (macrosomia), especially in mothers that have certain risk factors. These include prior deliveries of infants approaching 4000 (8lb/13oz)-4500 (9lbs/15oz) grams, diabetes of any kind and/or that the mother is 'post dates' at the time of labor.

Estimating fetal weight (EFW) requires some highly technical interventional medicine. It requires the physician to ask the mother, 'Does this feel like a very big baby to you,' or 'Do you think this baby is larger than your others,' and if so 'How much larger than the others does it feel to you?' This is called the 'maternal guess' method of estimating fetal weight. Catchy name. We have come such a long way in medicine, haven't we. Surprisingly enough, this method is just as effective as its counterpart, Leopold's maneuver where the physician places hands on the mother's abdomen and in his or her infinite wisdom and experience, predicts the weight. Maternal guess and Leopold's are statistically similar in their accuracy.

Probably the most accurate method of estimating fetal weight is by ultrasound although ACOG does not agree. Ultrasonography offers hard information that if interpreted by well trained doctors familiar with the techniques of interpreting fetal ultrasounds, can predict a large baby by comparing certain bone lengths and head diameters. With any question of macrosomia due to one or more of the following risk factors an ultrasound should be done although it too has a significant margin of error. ACOG, one of many conservative physician groups, (American College of Gynecologists Obstetricians) recommends currently that women with diabetes and an estimated baby size of 4500 grams or larger be considered for C section. This is bumped to 5000 grams for women without diabetes. Different articles offer different statistics. For example, one article notes: "When birth weight is more than 4,500 g, however, the risk [of dystocia] is increased to 9.2 to 24 percent in pregnant women without diabetes and to 19.9 to 50 percent in pregnancies complicated by diabetes." (American College of Obstetricians and Gynecologists issues Guidelines on Fetal Macrosomia).

There may be many reasons why ACOG now has such liberal parameters but my speculation is that it is just another way to attempt to insulate physicians from medical malpractice liability--at the expense of their patients.

Statistics can be applied or interpreted in many ways and the general argument floated in the literature is that many children are born without dystocia at high birth weights and we would have to perform many more C sections to save one child. I suppose that argument depends a lot on whose 'ox is being gored', so to say. If it's your baby that is unable to use his arm from birth--and all of the very serious repercussions that go with that, the argument is not compelling, particularly if it was known that the baby was going to be large but the EFW did not quite meet ACOG criteria.

Continue reading "Obstetrical Medical Malpractice Can Result From Failure to Carefully Consider Fetal Size Leading to Shoulder Dystocia " »