Doctors Negligently Treat Sacramento Girl Who Suffers Nasty Infection, Part 3 of 6

It is worth noting that situations similar to those described in this medical negligence case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)


In the opposition, Gillian Smith asserts that she has a valid cause of action for negligent infliction of emotional distress (“NIED”) because “Defendants failed to diagnose, treat and warn Plaintiffs of the impending danger to which she unknowingly exposed family members and the public.” Plaintiff relies on Burgess v. Superior Court (1992) 2 Cal.4th 1064; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916; and Ochoa v. Superior Court (1985) 39 Cal.3d 159. These cases do not support a claim for negligent infliction of emotional distress by Gillian Smith.

a. The Allegations Do No Support a Claim for NIED Based on a Direct Victim Theory.

By citing to Burgess and Molien, Gillian Smith is apparently contending that she can recover for NIED as a direct victim based on her allegedly exposing family members and the general public to the allegedly contagious disease. There is no merit to the claim.

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.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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 Gillian Smith that she can recover damages for exposing her family to a contagious disease. (See Part 4 of 6.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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