(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
In Huggins v. Longs Drug Stores (1993) 6 Cal.4th 124, the trial court granted defendant pharmacy summary judgment in an action by parents for negligent infliction of emotional distress arising from defendant’s having written prescription directions for five times the prescribed dosage for a medication that plaintiffs administered to their infant child. The trial court found that plaintiffs could not recover as bystanders to the child’s injury, since there was no contemporaneous observation. In contrast here, the father was present for viewing the injured child during an ongoing injury – the lack of oxygen for the minor.
The defense here cites Powers v. Sissoev (1974) 39 Cal.App.3d 865, 874 – a case decided prior to Ochoa and Thing. There the court held that the mother could not recover for shock which resulted from seeing her daughter 30 to 60 minutes after an accident and thereafter under circumstances not materially different from those undergone by. every parent whose child has been injured in a nonobserved and antecedent accident. In contrast, in the present case, the father was present in the delivery room at the time of the injury. Powers has no relevance to the present case.
The defense here cites Bird v. Saenz (2002) 28 Cal.4th 910, which approved the holding in Wilks discussed above. In Bird, the Supreme Court denied bystander emotional distress to plaintiffs who saw their decedent being briefly rushed through a hospital hallway in respiratory distress. The Supreme Court held that since the plaintiffs were not in the operating room-where a single specific act of negligence occurred – they were not bystanders. Here, in this case, the father was present in the operating room. Further, the Supreme Court in Bird further discussed what can qualify as being a bystander – and visual perception of an impact on the victim is not required:
To be sure, Thing’s requirement that the plaintiff be contemporaneously aware of the injury-producing event has not been interpreted as requiring visual perception of an impact on the victim. A plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative. (Wilks v. Hom (1992 2 Cal.App.4th 1264, 1272-1273. (Emphasis added.) (Bird, supra, 28 Cal.4th at p. 916.) (See Part 8 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.