Mother Of Birth-Injured El Dorado Child Sues Physician, Part 3 of 8

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

(Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916). Consequently, direct victim emotional distress does not rely upon physical injury or impact.

And the lack of a requirement for physical injury is a key central aspect of the direct victim analysis. In Molien, the Supreme Court answered in the affirmative the question of whether, in the context of a negligence action, damages may be recovered for serious emotional distress unaccompanied by physical injury. (Burgess, supra, 2 Cal.4th at p. 1073.) To emphasize the point that physical injury is not part of the direct victim analysis, the Supreme Court in Burgess made the point again: physical injury is not a prerequisite for recovering damages for serious emotional distress, especially when as here, there exists a guarantee of genuiness in the circumstances of the case. (Burgess, supra, 2 Cal.4th at p. 1079.) The Supreme Court put its point in a headline: Lack of Physical Injury Does Not Defeat Burgess’s Claim. (Id. at p. 1078.) Physical injury is not connected with the direct victim analysis.

The point here is that the defense argument that the direct victim emotional distress action is subsumed into the mother’s personal injury action is entirely illogical. If the direct victim analysis specifically excludes physical injury, how can the direct victim emotional distress be subsumed into a physical injury action? The physical injury and the emotional distress here are separate and distinct. And the Supreme Court in Burgess makes this distinction.
The Defendants rely upon one comment in Burgess taken out of context: We have repeatedly recognized the [t]he negligent causing of emotional distress is not an independent ort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply. (Id. at p. 1072.) This statement means is that in order to plead direct victim emotional distress, the elements of negligence must be alleged. But Burgess never held that direct victim emotional distress is subsumed into a separate personal injury action. The further language in Burgess clarifies that the direct victim emotional distress it is addressing involves not the mother’s emotional distress from injury to herself but rather the mother’s emotional distress because of injury to the child:

[I]t is … patently clear that a mother forms a sufficiently close relationship with her fetus during pregnancy so that its stillbirth [or injury] will foreseeably cause her severe emotional distress. Where the stillbirth [or injury] results from medical malpractice rather than from natural and unavoidable causes the loss is all the more poignant and should be legally redressable (Johnson v superior Court, supra, 123 Cal.App.3d at p. 1007 …. (Emphasis added.) (Burgess, supra, 2 Cal.4th at p. 1080.)

And the Supreme Court emphasized that the emotional distress was not from injury to the mother but from the participation in the abnormal event of participating in a negligent delivery and reacting to the unexpected outcome of her pregnancy …. (Id. at p. 1085.)

Therefore, the emotional distress the mother is experiencing here is not for her separate injury, but for injury to her child. The mother’s emotional distress for her injury is distinct and not subsumed by the emotional distress for injury to her child. (See Part 4 of 8.)

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

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