(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
Significantly, the Supreme Court in Byrd held that in Ochoa the injury-producing event was the failure to provide proper medical attention – and that observing the symptoms was sufficient for bystander emotional distress:
The injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention. Such a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson. (Bird, supra, 28 Cal.4th at p. 919-920.)
Consequently, the Plaintiffs here have properly asserted that the failure to provide proper treatment and viewing the deterioration of Sundari Patel is sufficient to claim bystander emotional distress.
The defense cites Jansen v. Children’s Hospital Medical (1973) 31 Cal.App.3d 22, the Court of Appeal held that a parent cannot claim bystander emotional distress for merely learning of the medical injury after the death of the child. She [the mother in Jansen] later learned that her child’s death was due to the failure to diagnose a penetrating duodenal ulcer. (Ochoa, supra, 39 Cal.3d at p. 167.) In contrast here, the husband and sister directly viewed a continuing injury in progress for hours. The husband and sister did not learn of the injury after the event.
Further, the Supreme Court in Ochoa disapproved the portion of Jansen which required a sudden, brief occurrence viewed contemporaneously by the plaintiff (the exact moment argument): Our review … leads us to the conclusion that the sudden occurrence requirement is an unwarranted restriction on the Dillon 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.) Finally, Jansen was decided before the Supreme Court decision in Ochoa which specifically allowed for emotional distress recovery when a parent witnesses the lack of medical care – and sees the deterioration of the child.
And as noted above, the moving papers misstate the law; Ochoa held the Plaintiff does not have to know whether there was medical negligence: [W]e by no means suggest … that plaintiff must be aware of the tortious nature of defendant’s actions. (Ochoa, supra, 39 Cal.3d at p. 170.)
Here, there was no event in an operating room which was hidden from the eyes of the Plaintiffs. Here the injury-producing event was fully visible to the Plaintiffs as they watched Sundari Patel bleed to death.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.