(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/personal injury case and its proceedings.)
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO DEFENDANTS’ DEMURRER
INTRODUCTION
This is a medical malpractice action brought by plaintiffs Donna Smith and Peter Smith, the parents of their infant child Amanda Smith for medical malpractice arising out of the delivery and birth of Amanda. The negligence occurred as a result of the delivering doctor, Kenneth Brown, M.D. and Universal Hospital failure to administer antibiotics prior to delivery knowing that mother, Donna Smith was Group B Strep Positive. As a result of this negligence the virus was passed to the child and resulted in sepsis which required the child to be admitted to Neonatal Intensive Care Unit for 6 days.
The Plaintiffs filed a complaint for medical negligence and negligent infliction of emotional distress with this court on August 12, 2004. The Defendant Universal Hospital provided an answer on October 1, 2004. The Defendant Kenneth Brown, M.D., has responded with this demurrer claiming the parents Peter Smith and Donna Smith do not fit the criteria to recovery as under the bystander theory . Specifically the demurrer is based on the plaintiff-parents failure to satisfy the second prong of the three part test established in Thing v. La Chusa (1989) 48 Cal.3d 644.
PLAINTIFFS’ ACTION IS PREMISED ON A DIRECT VICTIM RATIONALE AND NOT BASED ON A BYSTANDER THEORY
Plaintiff-parents Peter Smith and Donna Smith assert that their right to bring a negligence action on a contractual direct victim rationale and not based on a bystander theory. A physician-patient contract existed between the parents and the defendant obstetrician with an end and aim of the birth of a healthy child and a normal reproductive experience for the parents.
As such the parents are foreseeable victims who are owed a duty and have the right to bring a negligent cause of action. Thus the plaintiffs right to bring suit is not based on a bystander theory, but rather on a contractual direct victim rationale. (See Part 2 of 3.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.