Sacramento Child Born Brain Damaged Due To Hospital Negligence, Part 5 of 8

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

Likewise, the Plaintiff here saw the injury in process, the excessive bleeding and described it in detail in the Complaint. The father saw an ongoing event – which was a continuing injury – the lack of oxygen. No, the father does not have to have x-ray vision – or be a medical expert – to know there is an injury to the body. As in an automobile accident – the bystanding relative does not have to know the driver is intoxicated to know a car is causing injury.

Here, whenever the injury to the child began, the father has properly shown he directly saw the continuing injury. It is irrelevant whether or not the Plaintiffs saw the initial physiology. Here, the father saw the injury as it was occurring in an ongoing event.

In Wilks V. Hom (1992) 2 Cal.App.4th 1264 (approved by the Supreme Court in Bird v. Saenz (2002) 28 Cal.4th 910), a mother who was in one room of her house when an explosion in another room severely burned her daughter could recover on a bystander theory even though the mother did not actually see her daughter at the exact moment of the explosion. Wilks discussed what Thing did not require – that the plaintiff witness the injury at the exact moment it occurred:
Notable is the omission of a requirement that the plaintiff actually witness the injury to Jessica as and when it occurred. … Following Krouse, we conclude it is not necessary that a plaintiff bystander actually have witnessed the infliction of injury to her child, provided that the plaintiff was at the scene of the accident and was sensorially aware, in some important way, of the accident and the necessarily inflicted injury to her child. (Emphasis added.) (Wilks, supra, 2 Cal.App.4th at p. 1271.)

The parent in Wilks was not present at the exact moment the child was injured; but the mother could claim emotional distress because of a continuing event. Consequently, the exact moment argument is not valid; it assumes a singular event. Here the father was certainly present and sensorially aware of an injury. Our review … leads us to the conclusion that the sudden occurrence requirement is an unwarranted restriction on the Dillon [Dillon v. Legg (1968) 68 Cal.2d 728] guidelines. Such a restriction arbitrarily limits liability when there is a high degree of foreseeability of shock to the plaintiff…. (Ochoa, supra, 39 Cal.3d at p. 168.)

In Ochoa, the decedent was a thirteen year old male who died after an ongoing illness while in the infirmary of juvenile hall and this ongoing illness was witnessed by Gloria Ochoa, his mother. The Supreme Court found that contemporaneous observation can include the viewing of lack of medical care: We are satisfied that when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness of the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted. (Emphasis added.) (Ochoa, supra, 39 Cal.3d at p. 170.) And as noted above, the Plaintiffs need not know of medical negligence or its causation – [W]e by no means suggest … that plaintiff must be aware of the tortuous nature of defendant’s actions …. [S]uch requirement would lead to the anomalous result that a mother who viewed her child being struck by a car could not recover because she did not realize that the driver was intoxicated. (Emphasis added.) (Ochoa, supra, 39 Cal.3d 159, 170.)

The motion cites Justus v. Atchison (1977) 19 Cal.3d 564. In Justus fathers who were present at birth were told after birth the fetuses had died in utero. In that case, fathers could not claim wrongful death or negligent infliction of emotional distress for being present for the delivery of stillborn fetuses. Since the fetuses died before birth, the fathers did not witness the relatively sudden occurrence of the deaths which occurred before the delivery (Justus, supra, 19 Cal.3d at p. 584). Justus is inapplicable to this action where the child was born very much alive and very much injured. Plaintiff here directly saw the excessive bleeding and ongoing injury in progress – the living child’s appearance of being dead. (See Part 6 of 8.)

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

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