(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.)
The plaintiffs allege in paragraph 11 of their complaint that a contractual relationship existed between “plaintiffs and said defendants.” Further, in paragraph 14 of the complaint it is alleged that the defendants negligently cared for plaintiff causing injury. Therefore a cause of action for medical negligence was pleaded for the plaintiff-parents due to the birth injury.
In Burgess v. Superior Court. 2 Cal.4th 1064, 1073, 9 Cal.Rptr.2d 615, 618, P.2d 1197 (1992) A mother filed a medical malpractice action against an obstetrician and a hospital after her child suffered permanent brain and nervous system damage, allegedly as a result of oxygen deprivation during the delivery. Defendants brought a motion for summary adjudication that the mother was not entitled to recover damages for emotional distress, since she did not contemporaneously observe the baby’s injury as required for recovery in a bystander situation. The trial court granted defendants’ motion. The Court of Appeal, granted the mother’s petition for a writ of mandate to vacate the trial court’s order, concluding that the mother was a “direct victim” rather than a bystander.
The Supreme Court modified the judgment of the Court of Appeal to direct the trial court, in addition to reversing its order of summary adjudication, to enter an order in accordance with the views expressed in the Supreme Court’s opinion. The court held that the negligent causing of emotional distress is not an independent tort, but the tort of negligence, with the traditional elements of duty, breach of duty, causation, and damages. The court also held that in contrast to bystander cases in which a plaintiff seeks to recover for emotional distress caused by being a percipient witness to the injury of another, “direct victim” cases are those in which damages for serious emotional distress are sought as a result of a breach of duty owed to the plaintiff arising from a preexisting relationship between the plaintiff and the defendant. Inasmuch as the obstetrician owed a duty of care to the mother to avoid injuring her child, which arose from their physician-patient relationship, the obstetrician’s alleged negligence breached a duty of care owed to the mother.
Accordingly, the mother was a “direct victim” and the trial court erred by applying the bystander limitations on liability and granting summary adjudication on the mother’s emotional distress claim, even if she had not pleaded a physical injury in addition to the emotional distress. The court also held that public policy considerations did not justify denying the mother the right to recover damages for her serious emotional distress. (See Part 3 of 3.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.