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.)
REPLY OF DEFENDANT KENNETH BROWN, M.D., TO PLAINTIFFS’ OPPOSITION TO DEMURRER
This medical malpractice case involves allegations that the defendants negligently provided medical treatment causing the transmission of the bacteria Group B streptococcus to pass to [the minor-plaintiff] during birth.
The plaintiff-parents now deny they tried to allege a negligen infliction of emotional distress (NIED) cause of action based upon a bystander theory, though the allegations clearly demonstrate that was their intent. Rather, the plaintiff-parents argue that they stated a right to recover for NIED based upon a contractual direct victim duty. They have pleaded no direct victim claim, directly or by reasonable inference. The demurrer should be sustained, and as to the father, without leave to amend.
NO DUTY TO THE PARENTS CAN BE PREMISED UPON CONTRACT.
Plaintiffs cannot circumvent the body of law pertaining to parasitic NIED claims, by a bare allegation that their claim arises out of a duty imposed by a so-called contract. Plaintiffs argue that a contractual relationship was pled at paragraph 11 of their complaint, though review of those allegations seems to demonstrate otherwise. Even had plaintiffs plead the existence of a contract, the result is still the same, no tort duty can be premised thereon.
It is settled that an action against a doctor arising out of his negligent treatment of a patient is an action sounding in tort and not one based upon a contract. The fourth count alleges only there was a contract to perform the vasectomy, which was breached. This action arises solely from the alleged negligent act and sounds in tort. (See Part 2 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.