Sacramento Healthcare Facility And Physicians Sued For Malpractice, Part 10 of 10

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/medical malpractice case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.


This motion does not challenge that determination, and there seems to be little question that Mr. Green would be permitted to maintain a cause of action for loss of consortium pertaining to his wife’s physical injuries.

However, Mr. Green’s loss of consortium claim reaches well beyond that, to claims for emotional distress suffered as a consequence of having to take care of Abbey. Ms. Green stated in her deposition that any negative impacts to the quality of her marriage are attributable entirely to Abbey ‘s problems as opposed her own physical injuries. Thus, it is undisputed that there are no recoverable loss of consortium damages based on Ms. Green physical injuries. This is, of course, consistent with common sense, and entirely what one would expect where the mother recovered completely within a few weeks and the child has severe and permanent injuries to her brain.

The issue before the court with respect to the fifth cause of action is whether Paul Green, under his claim for loss of consortium, is entitled to recover any damages other than those relating to his wife’s physical injuries; and the answer is no. Clearly, Mr. Green has suffered profoundly as a result of his daughter’s injuries, not only in the loss of Abbey ‘s love and affection, but also the impact of Abbey ‘s injuries on the quality of their marriage. However, this latter source of suffering is not compensable, because it does not flow directly from a compensable injury suffered by his wife, and the former is not compensable because in California there is no cause of action for loss of filial consortium.

In Burgess, the Supreme Court, in allowing the mother to recover emotional distress damages associated with injuries suffered by her child during labor and delivery, confronted the problem of creating a potentially limitless source of recovery, and the danger of allowing NIED recovery to cross over into damages for loss of filial consortium. The Burgess court stated: Thus, we hold that damages arising from [the child’s] affection, society, companionship, love and disruption of Burgess’s normal routine of life to care for [the child] cannot be recovered by Burgess no matter how her claim for these damages is denominated. (2 Cal.4th at 1075; emphasis added). The court went on to reinforce the policy considerations underlying loss of filial consortium claims.

Thus, Ms. Green’s recovery in this action is limited to her own physical injuries, the pain associated with those physical injuries, and any emotional distress arising from participating in the abnormal event of a negligent delivery. Any emotional distress arising out of having to care for Abbey today, or the day-to-day experience of living with a severely disabled child, in other words, Abbey ‘s problems, as she put it in her deposition, is not compensable. As indicated by the Burgess court, the trial court should be requested to stringently enforce the limitation on damages in cases of this type, and make the appropriate evidentiary rulings and jury instructions at the appropriate time.

If Ms. Green cannot recover for emotional distress connected with caring for Abbey , then certainly Mr. Green cannot recover either. There is no construction of California law which would allow an injured spouse’s recovery to be limited in this way and not allow a non-injured spouse’s loss of consortium damages to be even further restricted. Thus, because Ms. Green is not permitted to recover for pain and suffering associated with Abbey’s problems, neither is Mr. Green permitted to recover for the impact those things have had on him. Instead, his recovery is limited to the impact of his wife’s physical injuries on their marriage, and nothing more, and since it has been established from the evidence that there was no such impact, Mr. Green has no right for recovery of loss of consortium damages at all.


Based on the foregoing, it is hereby respectfully requested that this Court grant the instant motion and dismiss the third, fourth and fifth causes of action of plaintiffs’ complaint, thereby restricting Ms. Green’s recovery to one cause of action for negligence, and dismissing Mr. Green from the action entirely.

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

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