(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)
The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.
Defendant’s Opposition Motion cont.
Burgess v. Superior Court, supra, 2 Cal.4th 1064, has no application to this action. Burgess is limited to the question addressed by the Supreme Court: Can a mother recover damages for negligent inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery? (2 Cal.4th at p. 1069.) The court went on to state: Because the professional malpractice alleged in this case breached a duty owed to the mother as well as the child, we hold that the mother can be compensated for emotional distress resulting from the breach of the duty. For public policy reasons that have been previously articulated by this court, however, these damages do not extend to emotional distress due to loss of affection, society, companionship or similar harm that the mother may incur in adjusting to and living with the child’s impairments. (Ibid.) This is not a birth injury case. This is also not a case where a physician or other health care provider has a duty owed to two patients at the same time as a obstetrician does in the case of a delivery. Burgess does not support a claim by Cindy Jones that she can recover damages for exposing her family to a contagious disease.
Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, also has no application here. There, the family member, the husband of the patient, sued based on the emotional distress he suffered when his wife, following the dictate of the health care provider, informed him that she had a sexually transmitted disease.
The transmission of this information caused a substantial disruption of the marriage and substantial emotional distress on the part of the husband. As it turned out, the wife did not have a sexually transmitted disease. In Molien, the doctor breached a duty because the doctor directed his patient, the wife, to advise the husband of the diagnosis. Here, Cindy Jones, the patient, not the family member, is suing to recover damages she Kelly allegedly suffered because she exposed her family to an allegedly contagious disease. As alleged, no defendant directed Cindy Jones to advise a family member regarding any diagnosis. Molien does not apply.
Directly on point is Huggins v. Longs Drug Stores (1993) 6 Cal.4th 124. In that case, parents tried to sue under a direct victim theory to recover NIED because they had unwittingly given their two-month-old son an overdose of medication, causing their son substantial injuries. The parents took a prescription for their son to a Longs Drug Stores pharmacy to be filled. The pharmacy wrote directions for five times the dosage ordered by the doctor. The parents apparently gave the dosage as set forth in the pharmacy’s directions. The child became very lethargic. The parents became concerned and suffered emotional distress. The Supreme Court held that the parents could not recover as direct victims. No duty was owed to them. In this case, Cindy Jones cannot recover for negligent infliction of emotional distress under a direct victim theory for witnessing any suffering by another family member, including her daughter. (See Part 4 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.