(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
The motion cites Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, which holds that a parent cannot claim emotional distress for viewing the damage caused after a injury caused by radiation therapy. They did not, and could not, observe the radiation overdose; [Petitioners] were, however, present and witnessed the results of the negligent over radiation, when after an unspecified period of time the symptoms of radiation poisoning became visible. (Golstein, supra, 223 Cal.App.3d at p. 1418.) Consequently, the plaintiffs in Golstein viewed the manifestations of the injury after it occurred. In contrast here, the father viewed the injury while it was occurring – the child’s appearance of being lifeless. Golstein is inapplicable, Plaintiff here directly saw the injury in progress.
The motion cites Jansen v. Children’s Hospital Medical (1973) 31 Cal.App.3d 22 for the proposition that a parent cannot claim NIED for learning of the medical injury after the death of the child. She [the mother in Jansen] later learned that her child’s death was due to the failure to diagnose a penetrating duodenal ulcer. (Emphasis added.) (Ochoa, supra, 39 Cal.3d at p. 167.) In contrast here, the father directly saw the injury in progress. The father did not learn of the injury after the event – he directly saw the events.
Further, the Supreme Court in Ochoa disapproved the portion of Jansen which required a sudden, brief occurrence viewed contemporaneously by the plaintiff (Ochoa, supra,30 Cal.3d at p. 168). In other words, defendants were erroneously asserting a plaintiff had to view the exact moment of a sudden brief occurrence of injury. Our review … leads us to the conclusion that the sudden occurrence requirement is an unwarranted restriction on the Dillon guidelines.
Such a restriction arbitrarily limits liability when there is a high degree of foreseeability of shock to the plaintiff … (Ochoa, supra, 39 Cal.3d at p. 168.) Finally, Jansen was decided before the Supreme Court decision in Ochoa which specifically allowed for bystander emotional distress recovery when a parent witnesses the lack of medical care – and sees the deterioration of the child. (See Part 7 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.