Metropolitan News-Enterprise


Monday, January 26, 2015


Page 1


C.A. Revives Suit Against Police Who Mistook Stroke for Insobriety




Police who allegedly delayed obtaining medical help for a physician who suffered a stroke while driving home from work, and whom they mistakenly thought was intoxicated, cannot claim that the plaintiff’s failure to manage his high blood pressure was a legal cause of his damages, the Fifth District Court of Appeal ruled Friday.

“We conclude that, where a plaintiff is seeking damages only for the aggravation or enhancement of an injury or condition, California will follow the majority view that a plaintiff’s preaccident conduct cannot constitute comparative negligence when that conduct merely triggers the occasion for aid or medical attention,” Justice Donald Franson Jr. wrote for the court. “As a result, defendants who render aid or medical attention cannot reduce their liability for the harm resulting from their tortious acts and omissions by attributing fault to the plaintiff for causing the injury or condition in the first place.”

The plaintiff, Mohamad Harb, was driving home from his shift at Kern Medical Center when he drove onto the sidewalk. The first officer on the scene, Claudia Payne, according to testimony, did not recognize Harb’s vomiting—which she said she did not see—slurred speech, and disorientation as signs of a stroke, and struggled with him before he was placed in handcuffs with the assistance of two other officers.

One of the officers called for an ambulance, and one arrived, but left 14 minutes later without Harb. The paramedic testified that he told officers that Harb showed no signs of intoxication or drug use, and needed to be taken to the hospital, but that one of the officers told him that the police would take Harb to the hospital.

He also testified that he saw the police conduct two breath tests, and that both results showed that Harb had no alcohol in his system. One officer suggested the machine was wrong, while the other said Harb was likely on drugs.

Police called for another ambulance seven minutes later, after talking to a nurse coworker of Harb’s who stopped her car after driving by the scene, and to another nurse who called Harb’s cellphone from the hospital to report that a patient was having difficulties. The second ambulance arrived seven minutes later and took 14 minutes to get to the hospital.

Harb was operated on almost four hours after the driving incident was reported. He is now confined to a wheelchair and unable to perform basic life tasks without the aid of a nurse assistant.

Lawsuit Filed

He sued the city, Payne, the ambulance service, and the paramedic, claiming they exacerbated the effects of the stroke by not getting him to the hospital quickly enough.

Experts offered conflicting opinions at trial as to whether the doctor’s condition would have been any better if he had gotten to the hospital sooner. The plaintiff’s expert said damages would have lessened if blood pressure medication had been administered sooner; the defense expert said that once the stroke occurred, there was no possibility of Harb’s condition becoming any better than it was at time of trial.  

The defense argued that Harb had “gambled with his own life” by not taking blood pressure medication after a previous stroke. Jurors found in favor of all defendants.

The plaintiff’s counsel contended in a motion for new trial that Kern Superior Court Judge Eric Bradshaw erred in allowing the defense to argue, and in instructing the jury on, comparative fault; because the plaintiff was not accusing the defendants of causing the stroke, any conduct of the plaintiff that contributed to it was irrelevant, it was argued.

Jury Instruction Unnecessary

Counsel also argued that a jury instruction on police immunity, although it correctly stated the text of the Government Code section on the subject, was unnecessary and confused the jury.

The motion was denied, but Franson said the plaintiff was correct on both issues.

While there is a paucity of California case law on the issue of pre-occurrence comparative negligence, the justice explained, California does follow the traditional rule that the “tortfeasor takes the plaintiff as he finds him.” 

A number of jurisdictions have held, particularly in medical malpractice cases, that conduct by the plaintiff prior to the occurrence of medical negligence cannot be used to prove comparative fault, Franson noted. That position, he pointed out, is consistent with the Restatement Third of Torts: Apportionment of Liability, which states:  “[I]n a case involving negligent rendition of a service, including medical services, a factfinder does not consider any plaintiff’s conduct that created the condition the service was employed to remedy.”

Franson went on to conclude that the comparative-fault argument was too large a part of the defense case for the error to have been harmless.

The case is Harb v. City of Bakersfield, F066839.


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