Personal Injury Lawyer Blog
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.
It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)
THE FOURTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)
This is an action for injury to the minor plaintiff occurring during his delivery and birth. The defendant is not demurring to the first three causes of action for medical negligence brought by the minor plaintiff and his mother. The defendant is not demurring to the fifth cause of action for loss of consortium brought by the father.
However, the fourth cause of action for NIED on a bystander theory by the child’s father, Thomas Lee, does not state facts sufficient to constitute a cause of action, because it does not set forth facts demonstrating that the father had contemporaneous awareness of the injury at the time it occurred and knew the negligent cause of that injury at that time. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Mr. Lee cannot recover for NIED on a bystander theory even if he witnessed the delivery, because he did not have contemporaneous awareness that the plaintiff had suffered injury at the time and that the injury was caused by the negligence of Dr. White. The complaint does not allege facts demonstrating such contemporaneous awareness.
In Thing v. LaChusa (1989) 48 Cal.3d 644, 647, the California Supreme Court set forth the elements of a cause of action for negligent infliction of emotional distress on a bystander theory as follows: In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and (3) as a result, suffers emotional distress beyond that which would be anticipated in a disinterested witness. (See Part 3 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.