Overview: In Harb v City of Bakersfield, the Court of Appeal dealt with a case of first impression, which can’t be summarized in a few sentences, but here goes. Doctor suffers stroke, first responders mis-diagnose, ambulance comes and leaves without transporting the doctor to the hospital, his condition, extremely severe, worsens, he is confined to a convalescent hospital for life, he sues, loses and appeals. Appellate court rules for the doctor with a discussion of comparative negligence and a misleading jury instruction. Read the column for details.
After last week’s column on beastiality, I thought I would upgrade the level of the conversation.
Today’s column is a case of first impression, meaning the legal issue has never been decided by California courts before. That’s hard to believe.
Mohamad Harb, M.D., was driving home from his shift at Kern Medical Center in Bakersfield when he suffered a stroke and drove his car into a sidewalk. Dispatch summoned officers to a non-injury collision involving “a possible driving-under-the-influence-driver.”
The police officer first responder saw Dr. Harb vomiting, he was disoriented and his speech was slurred. She made the (incorrect) evaluation Dr. Harb was under the influence of alcohol or drugs and didn’t immediately call an ambulance. She then handcuffed him and sat him down on the curb.
Ambulance Leaves Scene
An ambulance arrived. The police officers later testified the paramedic told them “there’s nothing medically wrong with this guy” and the ambulance left the scene.
More officers arrived and immediately concluded Dr. Harb had serious medical issues. They summoned an ambulance and he was taken to the hospital, but almost an hour had passed due to the improper initial diagnosis.
Following surgery, Dr. Harb now resides in a convalescent hospital receiving daily certified nurse care, which includes bathing, dressing and feeding. He wears diapers.
Officers and Paramedics Sued
Dr. Harb and his family sued the initial responding police officers, the ambulance company and the first paramedic that left the scene. They took their case through a jury trial and lost. Dr. Harb appealed.
Dr. Harb claimed the defendants’ delay in getting him to the hospital made the consequences of his stroke much worse. The suit was not for injuries suffered by the stroke but for subsequent aggravated damages due to the delay.
The primary claim in the appeal was that the jury had been erroneously instructed that Dr. Harb had contributed to his own injuries by negligently failing to take his blood pressure medication, so any damages he might be awarded in court for the police officers’ and paramedic’s negligence should be reduced because he himself was negligent.
I.e. comparative negligence – a plaintiff’s damage award is reduced by the percentage of fault attributed to the plaintiff. As the defense attorney said to the jury, “Harb gambled with his own life…he owns all of the responsibility here as to what happened.”
Dr. Harb’s second basis for appealing was that the jury was read the following special jury instruction: “A police officer is not liable for his act or omission, exercising due care, in the execution or enforcement of any law.” Dr. Harb argued the instruction misleadingly suggested to the jury that the police officer and ambulance driver were immune from liability.
The Court of Appeal ruled for Dr. Harb . His negligent failure to take his blood pressure medication may not be used by the first responders to comparatively reduce the subsequent and additional damages they caused for the delay in transporting him to the hospital. By failing to take his meds, Dr. Harb may have negligently contributed to the initial stroke and crash, but not to the defendants’ subsequent negligent delay in having him transported to Kern Medical Center. He did not contribute to that aggravated injury.
The Court of Appeal also determined the jury instruction about police officer immunity was misleading.
Dr. Harb may take his case to a new jury.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or www.portersimon.com.
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