(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
Thus, … the failure by Burgess to satisfy the criteria for recovery under Thing, … does not end the inquiry. The alleged negligent actions resulting in physical harm to Joseph [the minor] breached a duty owed to both Joseph and Burgess. Burgess was unavoidably and unquestionably harmed by this negligent conduct. (Emphasis and brackets added.) (Burgess, supra, 2 Cal.4th at p. 1076-1077.)
The above analysis was recently affirmed in Zavala v. Arce (1997) 58 Cal.App.4th 915, decided October 27, 1997. In Zavala, the fetus was stillborn; yet, the mother could still allege her own action for direct victim emotional distress. Zavala cited Burgess were the baby was born alive – as in the present case – and died after birth; in both circumstances, the mother can allege emotional distress: Our Supreme Court has held in a factually similar case that when an obstetrician and a pregnant woman enter into a physician-patient relationship … the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. (Zavala, supra, 58 Cal.App. 4th at p. 928.)
Whether the baby survives birth or dies after is immaterial to the emotional distress claim of the mother:
The fact that the baby in Burgess survived the injuries caused by the obstetric negligence during delivery was immaterial to the determination of whether the obstetrician owed a duty of care to the mother. The Supreme Court in Burgess reasoned that … the obstetrician and the pregnant woman [who] enter into a physician-patient relationship … understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus, and [a]ny emotional anguish to the mother, therefore breaches a duty owed directly to the mother. (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1076.) (Emotional distress.) (Zavala, supra, 58 Cal.App. 4th at p. 930.)
Consequently, the mother in an obstetrical situation resulting in injury to the fetus or to a live born infant can claim a separate cause of action for direct victim emotional distress because a separate distinct duty is breached by the obstetrician – the duty not to injure the child. (See Part 6 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.