(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
1. The depositions of Plaintiffs JAMES PATEL and MARI SINDHURI support their claim for bystander emotional distress under Thing, in this medical malpractice action. Here, the decedent’s husband and sister have properly testified to contemporaneous observation of the continuing failure of the Defendants to properly treat Sundari and her excessive bleeding. Plaintiffs properly allege the elements of Thing v. LaChusa (1989) 48 Cal.3d 644: (1) they were closely related to the injured patient; (2) they were present at the scene of the continuing series of injury producing events at the time of these multiple events – the Defendants’ failure to properly treat the decedent, and (3) Plaintiffs suffered severe emotional distress.
2. The Plaintiffs witnessed an ongoing injury producing event – the excessive bleeding of Sundari Patel that killed her. Plaintiffs viewed a continuing injury because the Defendants’ failure to adequately treat the decedent. The decedent’s husband sister contemporaneously observed the continuing injury – the excessive bleeding – which continued for hours. Contrary to the moving papers, the husband and sister need not be aware of the medical processes to witness the incident, the failure to treat; nor do the Plaintiffs have to be aware of medical negligence (Ochoa v. Superior Court (1985) 39 Cal.3d 159[FN1] ; Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178). Further, the motion argues the rejected exact moment argument – that the Plaintiff must observe the exact moment of injury.
Here, the defense argues that the Plaintiffs’ must view a specific act of negligence. The argument is not valid; because it assumes a singular event. This argument fails to account for a continuing injury for hours where the decedent did not receive adequate medical care. The Defendants cite Jansen v. Children’s Hospital Medical Center (1973) 31 Cal.App.3d 22; however, the Supreme Court in Ochoa v. Superior Court (1985) 30 Cal.3d 159, 168, disapproved the portion of Jansen which required a sudden, brief occurrence viewed contemporaneously by the plaintiff. Here the Plaintiffs observed a series of events of an ongoing continuing injury. The Plaintiffs properly allege bystander emotional distress.
FN1. [W]e by no means suggest … that plaintiff must be aware of the tortious nature of defendant’s actions. As the court in Mobaldi observed, such requirement would lead to the anomalous result that a mother who viewed her child being struck by a car could not recover because she did not realize that the driver was intoxicated. (Emphasis added.) (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 170.) (See Part 3 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.