Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
STATEMENT OF FACTS
On or about January 8, 2003, at about 1:30 p.m., JAMES PATEL was present in the emergency room when Sundari Patel bled excessively so that Sundari’s bed, arms and legs were drenched in blood. JAMES PATEL requested that Sudari be cleaned. A nurse cleaned Sudari. Thereafter she was transferred to another room. At about 4:00 p.m., Sundari’s bed again was covered with blood. JAMES PATEL again asked that Sundari be cleaned. Again a nurse cleaned her. At about 7:00 p.m. Sundari was taken for a CT scan. An hour later, Sundari was again drenched in blood. At about 9:00 p.m., JAMES PATEL saw Sundari and she was again suffering from excessive bleeding. The health care providers indicated that they were not concerned by the excessive bleeding.
Plaintiffs became worried, upset, concerned and emotionally distressed at the condition of Sundari. While in the hospital Plaintiffs were aware injury was being caused to the decedent because of the presence of excessive amounts of blood and the fact that the health care providers indicated that they were not concerned by the bleeding. Sundari was suffering a continuing injury. Plaintiffs were at the scene of the injury producing events and they knew decedent was being caused injury because of the presence of excessive amounts of blood.
THE PLAINTIFFS HAVE COMPLIED WITH THE ELEMENTS OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS PURSUANT TO THING
JAMES PATEL and MARI SINDHURI properly testified to all the elements of negligent infliction of emotional distress pursuant to Thing v. LaChusa (1989) 48 Gal.3d 644. They explicitly alleged they (1) are closely related to the injury victim; (2) were present at the scene of the injury-producing event at the time it occurs and were then aware that it is causing injury to the victim; and (3) as a result suffered serious emotional distress. (Id., 48 Cal.3d p. 667-668.)
Contrary to the motion for summary adjudication, the decedent’s husband, JAMES PATEL, and sister, MARI SINDHURI were present for the injury producing event when they witnessed the excessive bleeding by the decedent. Contrary to the motion for summary judgment, viewing the excessive bleeding is not merely viewing a symptom. The moving papers have absolutely no authority that only viewing the symptoms only is not sufficient. In Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178, the Court of Appeal stated that a wife who witnessed her husband’s bleeding and deprivation of oxygen but actually could not see the full extent of the deprivation of oxygen, can state a cause of action for emotional distress for witnessing the event which was still occurring :
Even if she could not perceive the full extent of the damage resulting from oxygen deprivation, she was clearly aware that his body was limp, that blood was running down his arm, and that he did not respond when she spoke to him. [ ] … [T]he injury-producing event was still occurring at the time Mrs. Ortiz discovered Mr. Ortiz trapped in the machine. (Ortiz v. HPM Corp., supra, 234 Cal.App.3d at p. 186.)
Likewise, the Plaintiffs here saw the decedent’s excessive bleeding and lack of improvement. In Wilks v. Hom (1992) 2 Cal.App.4th 1264, 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. The plaintiff in Wilks had to view the symptoms. This was sufficient for establishing a claim for bystander emotional distress. 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. (Wilks v. Hom, supra, 2 Cal.App.4th at p. 1271.) (See Part 4 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.