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.
(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.)
PLAINTIFFS’ DIRECT VICTIM THEORY WAS AN AFTERTHOUGHT, NOT SUPPORTED BY THE PRESENT ALLEGATIONS.
It bears repeating that the parents’ status as “direct victims” was not pled, either directly or by reasonable inference. The only theory postulated by the parents to support their NIED recovery is based upon bystander status.) In order to pursue any direct victim claim they first have to plead it, which they did not do. The demurrer should be sustained on that basis.
THE FATHER CANNOT STATE A RIGHT TO RECOVER AS A DIRECT VICTIM AS A MATTER OF LAW, BECAUSE HE IS NOT A PATIENT.
The plaintiff-parents cite Burgess v. Superior Court (1992) 2 Cal.4th 1064 and Zavala v. Arce (1997) 58 Cal.App.4th 915 as support for their status as direct victims. Assuming leave to amend is granted, because the plaintiff-mother was a patient of Dr. Brown, she may qualify under Burgess as a direct victim; however, the father cannot possibly qualify.
So-called “Burgess” NIED recovery stemming from birth injury to a child is allowed only for the mother. This is because both mother and fetus are owed a duty of care, as both are the obstetrician’s patients. No case has allowed a father to recover as a direct victim for injuries to a child during birth, because he is not a patient. Rather, in order for a father to sue for NIED based upon birth injury to a child, he must satisfy the bystander criteria.
The Smith father has no pled facts to qualify as a bystander. Further, the nature of the injury, the passing of a latent infection from mother to child during birth, is an invisible injury that can neither be visualized nor meaningfully perceived by a lay person as it occurs. Indeed, the most reasonable inference to be drawn from the allegations is that the father witnessed what the majority of lay people do, unperceived medical errors hidden in a course of treatment. (See Part 4 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.