Medical Malpractice Results In Birth Injury to Sacramento-area Baby, Part 2 of 8

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

II BURGESS: A MOTHER’S EMOTIONAL DISTRESS ACTION FOR INJURY TO HER CHILD IS NOT SUBSUMED INTO HER NEGLIGENCE CAUSE OF ACTION

The seminal case allowing a mother to assert direct victim emotional distress for injury to her child during birth is Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1072. Under Burgess, there are two reasons why the mother’s direct victim emotional distress is not subsumed by her separate negligence personal injury cause of action: (1) Burgess’s own language found the mother could allege emotional distress irrespective of whether she alleged personal injury; and, (2) Burgess recognized the obstetrician had a duty directly to the mother not to injure her child, which is distinct from a duty not to injure the mother directly.

A. BURGESS: THE SUPREME COURT IN BURGESS RECOGNIZED DIRECT VICTIM EMOTIONAL DISTRESS FOR THE MOTHER INDEPENDENT OF ANY PERSONAL INJURY ACTION

The Supreme Court in Burgess held the mother in a case of obstetrical negligence can recover for emotional distress for injury to her child – as opposed a separate injury to the mother. A reading of Burgess shows the mother’s emotional distress for the child’s injury is not subsumed by a mother’s separate personal injury action. Indeed, the Supreme Court specifically held that physical injury is not part of the direct victim analysis.

Burgess is similar to the present case. In Burgess, the defendant obstetrician delivered an injured child who subsequently died: Joseph died during the course of the litigation, allegedly as the result of his injuries. A wrongful death action was subsequently filed by Burgess [the mother] and was consolidated with the original malpractice action. (Burgess, supra, 2 Cal.4th at p. 1070-1071.) Consequently, Burgess included both a malpractice claim and a wrongful death claim.

The Supreme Court held that the mother could claim direct victim emotional distress and be compensated for that emotional distress: Because the professional malpractice alleged in this case breached a duty owed to the mother as well as the child, we hold that the mother can be compensated for emotional distress resulting from the breach of the duty. (Emphasis added.) (Id. at p. 1069.) (See Part 3 of 8.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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