(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
IV THE MOTHER DOES NOT HAVE TO SHOW CONTEMPORANEOUS OBSERVATION OF HER CHILD’S BIRTH INJURY TO CLAIM EMOTIONAL DISTRESS AS A DIRECT VICTIM
The plaintiff mother does not have to show contemporaneous observation of a bystander under Thing v. La Chusa (1989) 48 Cal.3d 644, to claim emotional distress from injury to her child because the mother is a direct victim.
A. Because Gupta Owed a Preexisting Duty of Care to Burgess, the Criteria for Recovery of Negligent Emotional Distress Enunciated in Thing Are Not Controlling in This Case.
In contrast [to bystander], the label direct victim arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law or that arises out of a relationship between the two. [Citation omitted.] In these cases, the limits set forth in Thing, supra, … have no direct application. [Citations omitted.] Rather, the well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case. (Emphasis and brackets added.) (Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1064, 1072-1073.)
Consequently, the elements of emotional distress for the plaintiff mother are the elements of negligence: We have repeatedly recognized the [t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. … The traditional elements of duty, breach of duty, causation, and damages apply. (Id. at p. 1072.)
The defendants here owed a direct duty to the mother:
Moreover, during pregnancy and delivery it is axiomatic that any treatment for Joseph necessarily implicated Burgess’s participation since access to Joseph could only be accomplished with Burgess’ consent and with impact to her body.
It is in light of both these physical and emotional realities that the obstetrician and the pregnant woman enter into a physician-patient relationship. It cannot be gainsaid that both parties understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother.
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 Ithe minor] breached a duty owed to both Joseph and Burgess. Burgess was unavoidably and unquestionably harmed by this negligent conduct. (Emphasis and brackets added.)(Id. at p. 1076-1077.)
Here the mother was unavoidably and unquestionably harmed by the conduct of the Defendants. The mother need not show the contemporaneous observation requirements of Thing.
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