Birth Injury Of Sacramento Baby Due To Hospital's Malpractice

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Here, the Plaintiffs contemporaneously understood that viewing the child’s deterioration was watching injury to a close relative. In Byrd, the Supreme Court discussed Ochoa v. Superior Court (1985) 39 Cal.3d 159:

In that case [Ochoa], a boy confined in a juvenile detention facility died of pneumonia after authorities ignored his obviously serious symptoms, which included vomiting, coughing up blood, and excruciating pain. We permitted the mother, who observed the neglect and recognized it as harming her son, to sue as a bystander for NIED [negligent infliction of emotional distress]. Anticipating the formula we would later adopt in Thing, we explained that when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted. (Emphasis added.) (Bird, supra, 28 Cal.4th at p. 919.)

Significantly, the Supreme Court in Byrd held that in Ochoa the injury-producing event was the failure to provide proper medical attention – and that observing the symptoms was sufficient for bystander emotional distress:
The injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention. Such a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson. (Bird, supra, 28 Cal.4th at p. 919-920.)

Consequently, the father here has properly asserted that he was present for the injury producing event and then knew injury was being cause – because of the lack of oxygen -sufficient to claim bystander emotional distress.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.