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.)
It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.
However, central to the ruling in Burgess is the admonition that the direct victim theory of NIED does not create a new cause of action, but instead simply recognizes that an obstetrician owes a duty of care to a pregnant mother in addition to the injured baby, even if the mother suffers no harm herself. The Supreme Court stated:
We have repeatedly recognized that the negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply.
In contrast [to the bystander theory of NIED], the label direct victim arose to distinguish cases in which damages for serious emotional distress are stated as a result of a breach of duty owed the plaintiff, that is assumed by the defendant or imposed on the defendant is a matter of law, or that arises out of a relationship between the two. In these cases, the limits set forth in Thing, supra, have no direct application. Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duties, are present in a given case.
The broad language of the Molien decision, coupled with its perceived failure to establish criteria for characterizing a plaintiff as a direct victim rather than a bystander, has subjected Molien to criticism from various sources, including this court. The great weight of this criticism has centered upon the perception that Molien introduced a new method for determining the existence of a duty, limited only by the concept of forseeability. To the extent that Molien stands for this proposition, should not be relied upon and its discussion of duty is limited to its facts.
As in Marlene F. [v. Affiliated Psychiatric Medical Clinic Inc(1989) Cal.3d 583], once the scope of the duty of care assumed by [the defendant physician] is understood, [plaintiff’s] claim for emotional distress damages may simply be viewed as an ordinary professional malpractice claim, which seeks as an element of damage compensation for her serious emotional distress. [2 Cal.4th at 1070-1072;]
In other words, the confusion which has arisen with respect to the direct victim theory comes from the tendency to treat the theory as a separate cause of action, when it is appropriately viewed as merely one aspect of recovery for negligence. It is not a separate theory of recovery, it does not create a separate cause of action, and it does not give rise to a second $250,000 cap. As noted by the Burgess court, in a discussion at the end of the case of the implications of this ruling, as a result of MICRA, the amount of non-economic damages, such as damages for emotional distress, that may be recovered in action rising from the professional negligence of a health care provider is capped at $250,000. (2 Cal.4th at 1075;see also, Colburn v. United States (1998) 45 F.Supp.2d 787 [$250,000 cap applied to mother in NIED case].) (See Part 5 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.