Hospital And Physician Sued For Birth Injury

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

The Third District cited the Second District case of Zambrano v. Dorough (1986) 179 Cal.App.3d 169, a medical negligence case wherein the plaintiff asserted the defendant physician’s negligent misdiagnosis caused her hysterectomy; she also asserted emotional distress.

The Third District drew a distinction between the medical negligence action and found the emotional distress based upon a different allegation that the physician refused to treat her:

We are likewise convinced that Zambrano should be permitted to proceed against Dorough for the loss of her reproductive capacity. That injury is of a different type than the emotional distress she allegedly suffered from Dorough’s refusal to treat her and the pain and suffering and out of pocket losses allegedly accompanying the negligent misdiagnosis. The cause of action is based upon the injury to the plaintiff … [ ] If the complaint alleges violation of a different primary right, it states a different cause of action. (4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 25, p. 69.) (Emphasis added.) (Zambrano v. Dorough, supra, 179 Cal.App.3d at p. 174.)

To emphasize the point that the medical negligence action was separate from the emotional distress action, the Second District continued: Zambrano’s right to be free of the transitory damages of discomfort and distress is separate from and independent of her right to have children, a much more serious complication not apparent at the time of the earlier 5 problems. (Id.)

The point was best stated by the Supreme Court in Burgess: the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. (Burgess, supra, 2 Cal.4th at p. 1076.) A separate primary right was thus recognized in Burgess. That primary right is not subsumed by the mother’s separate medical negligence action. (See Part 8 of 8.)

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