(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/personal injury case and its proceedings.)
In Zavala v. Arce. 58 Cal.App.4th 915, 68 Cal.Rptr.2d 571 (4th Dist. 1997) an individual brought a medical malpractice action against her former obstetrician arising from the in utero death of plaintiff’s post-term fetus, seeking emotional distress damages on a “direct victim” theory of liability. The trial court granted summary judgment for defendant.
The Court of Appeal reversed the judgment and remanded the case to the trial court for further proceedings. The court held that the trial court, in granting summary judgment for defendant, erred in ruling as a matter of law that plaintiff could not state a claim for direct victim emotional distress damages. Because a pregnant woman who experiences negligent antenatal care is no bystander but a “direct victim” instead, the strictures of Thing v. La Chusa do not apply, and she may sue for her emotional distress even if she did not realize, while it was going on, that her doctor was acting negligently.
The plaintiffs cause of action is based on a direct victim rationale and not a bystander theory. The limitations asserted in Thing v. La Chusa are not applicable as for they only deal with actions asserted under a bystander theory. The plaintiffs pleadings are sufficient and the court should overrule the defendants’ demurrer.
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