(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
Plaintiffs’ Trial Brief: The Mother’s Emotional Distress Action is not Subsumed by Other Actions Nor Does the Mother Have to Show Contemporaneous Observation of the Birth Injury Itself
MEMORANDUM OF POINTS AND AUTHORITIES
This is a medical negligence action wherein the minor Plaintiff, KYLIE JAMES, suffered severe birth injuries. The Complaint alleges that the minor suffered damages because of medical negligence. The Complaint also alleges a separate cause of action by the mother, OLIVIA JAMES, for negligence in her treatment. In addition, OLIVIA alleges a cause of action for negligent infliction of emotional distress (NIED) pursuant to Burgess v. Superior Court (Gupta) (1992) 2 Cal. 4th 1064.
1. The mother’s action for NIED is not subsumed by other actions. The defense may assert that the mother’s direct victim emotional distress cause of action under Burgess is subsumed or erased by her separate action for personal injuries. The defense may assert that an obstetrical patient cannot claim a cause of action for negligence separate and distinct from her emotional distress cause of action under the Supreme Court case of Burgess. If a mother’s direct victim emotional distress action is subsumed by her personal injury action, then the mother’s direct victim emotional distress is effectively eliminated for a mother who is involved with obstetrical negligence, has an injured child, and in the process is injured herself. Contrary to what the defense may claim, a mother has a separate action for emotional distress arising from the abnormal event of participating in a negligent delivery and reacting to the tragic outcome …. (Burgess, supra, 2 Cal.4th at p. 1085.)
2. The mother does not have to show contemporaneouss observation under Thing. Contrary to what the defense may claim at trial, under Burgess, the mother is not required to prove that she was contemporaneously aware of a negligent act and harm to her child.
Rather, the mother need only prove that negligence during the delivery process resulting in permanent injury to her child will forseeably cause the mother serious emotional distress. Instead, as a direct victim, the mother is entitled to recovery for her own emotional distress, if there was negligence during the delivery which causes injury to the child and resultant emotional anguish to the mother (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1076). (See Part 2 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.