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 personal injury cases 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/medical malpractice case and its proceedings.)
PLAINTIFF MELISSA GREEN MAY NOT MAINTAIN A SEPARATE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Plaintiff Melissa Green qualifies for recovery of damages for her emotional distress under the direct victim theory, at least as to any defendants with whom she had a physician-patient relationship during labor. (See, Burgess v. Superior Court (1992) 2 Cal.4th 1064.) As the Burgess court explained, the realities of pregnancy and child birth, both physical and emotional, are such that any negligence during delivery which causes injury to the fetus and resulting in emotional anguish to mother breaches a duty directly the mother. (2 Cal.4th at 1069.) However, the physician/patient relationship that may have existed between moving defendant and Ms. Green prior to the birth of Abbey Green does not give rise to a separate cause of action, but rather is part of the negligence cause of action pleaded elsewhere in her complaint. This is done in order to give rise to two separate $250,000 MICRA caps on general damages, both in favor of Ms. Green.
The leading case on the direct victim theory is Burgess v. Superior Court, supra., 2 Cal.4th 1064.Burgess was also a birth injury case, involving the death of a baby who suffered oxygen depravation due to umbilical cord prolapse during labor. The defendants in that case brought motions for summary adjudication as to the mother’s claim for NIED, which were granted. The Supreme Court reversed, finding that the bystander theory was not controlling, and that instead the mother qualified as a direct victim by virtue of her relationship to the delivering physician. (See Part 4 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.