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.
It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)
In Bird v. Saenz (2002) 28 Cal.4th 910, 920, the California Supreme Court indicated that in order to maintain a cause of action for NIED on a bystander theory, one must not only witness the injury, but also have contemporaneous awareness of the cause of the injury. In Bird, the plaintiffs were the adult daughters of the decedent. Following a surgical procedure to the decedent, one of the daughters saw the decedent being rushed down the hallway, and she was “bright blue.” She witnessed hospital personnel running down the hallway to render treatment to the decedent. One physician told her “I think they nicked an artery or a vein, and it looks like all the blood went into her chest.” Id. at 913. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The California Supreme Court held that the plaintiffs did not have a cause of action, stating that the plaintiffs have not shown they were aware of the transection of Nita’s artery at the time it occurred. Nor have they shown they were contemporaneously aware of any error in the subsequent diagnosis and treatment of that injury in the moments they saw their mother rolled through the hall by medical personnel. Id. at 921-922. In the medical malpractice context, bystanders cannot sue for negligent infliction of emotional distress based on unperceived medical errors hidden within a course of treatment.
In Bird, the California Supreme Court determined that mere suspicion of the cause of injury is not sufficient to maintain a cause of action for NIED on a bystander theory. The plaintiff in the Bird case knew that her mother had suffered injury, and witnessed her mother’s suffering. She was even told by a physician, I think they nicked an artery or a vein, and it looks like all the blood went into her chest. Id. at 913. However, that was deemed to be insufficient to maintain the cause of action, because the plaintiff did not have actual knowledge of what occurred at the time it was occurring.
The Court in Bird disapproved of the appellate decision in Mobaldi v. Regents of the University of California (1976) 55 Cal. App.3d 573, wherein the mother of a child sued for NIED after her child was seriously injured by an incorrectly prepared intravenous solution. The mother in Mobaldi held her child as the solution was administered and watched as he suffered convulsions and lapsed into a coma. The court of appeal in Mobaldi held that the mother had a claim for NIED, because she witnessed the injury, even though she did not know that the child’s suffering was caused by the incorrectly prepared intravenous solution. However, in Bird, the California Supreme Court disapproved of that holding on the grounds that the mother did not know that the defendant’s conduct was causing injury to her child. Id. at 920-921. In other words, the mother not only had to witness injury to her child, but she had to be aware of the causal connection between the injury and the defendant’s conduct. (See Part 4 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.