Appeals court orders new trial against Bakersfield police
January 25, 2015
A state appeals court has ordered a new trial against the Bakersfield police in the case of a man who an officer mistakenly determined was drunk when he was undergoing a medical emergency. A Grover Beach woman has made similar claims about a Pismo Beach police officer.
In 2007, Mohamad Harb, M.D. was driving home from his shift at Kern Medical Center’s neonatal intensive care unit when he suffered a stroke and drove his car onto a sidewalk. The police officer who arrived at the scene did not call an ambulance immediately because she deduced from Dr. Harb’s vomiting, slurred speech and disorientation that he was intoxicated and, after a struggle, placed him in handcuffs.
The first ambulance that arrived on the scene left without Dr. Harb. Later, a second ambulance took Dr. Harb to a hospital where he received treatment and survived, but the brain damage he suffered likely because of the wait rendered him unable to care for himself.
In the opinion released Friday, a three-judge panel of the 5th District Court of Appeal agreed with the plaintiff’s attorney that Kern County Superior Court Judge Eric Bradshaw erred twice in his instructions to the jury.
First, the court erred when it instructed the jury that an officer is not liable when their actions are not negligent, which was determined to be misleading and unnecessary.
Second, the court found that the judge should not have permitted the defendants to argue that the doctor was at fault for not properly managing his blood pressure.
“The opening statements, the state of the evidence, the nature of the erroneous instruction, and the closing arguments of counsel convince us that there is “a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached,” The court stated. “In short, allowing the issue of Harb’s comparative negligence in failing to take his blood pressure medication may have affected the findings that the defendants were not at fault by improperly focusing the jury’s attention on the patient’s conduct.”
The court reversed the judgment and remanded the matter to the superior court for a new trial.
In a similar incident, a 32-year-old Grover Beach woman says a Pismo Beach police officer mistook her suffering several seizures for public intoxication on the night of Oct. 11. Police arrested Andrea Hansen for public intoxication, resisting arrest and battery on a police officer, each of which are misdemeanor charges.
Hansen claims she started having seizures that night after leaving a Pismo Beach restaurant and pub. When she regained consciousness, she called 911 for medical help.
However, officers arrived instead of an ambulance, and they mistook her for being intoxicated when she acted disoriented and slurred her words, Hansen says. Officers sent the first ambulance that arrive on the scene away, as had the officer in the Bakersfield case.
During the arrest, Hansen suffered a sprained ankle and wrists and cuts and bruises all over her body. Hansen also began convulsing in a county jail cell because she could not use her prescription medication for several hours while she was in custody, she claims.
Hansen has retained attorney David Vogel, and regardless of the outcome of her criminal case, she could pursue a lawsuit against the Pismo Beach Police Department.