Sacramento Child’s Parents File Action For Medical Malpractice, Part 5 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.


As the Court is aware from the discussion of these issues at the demurrer stage, the law governing recovery for negligent infliction of emotional distress in medical malpractice cases is rich and complex, with sometimes fairly arbitrary distinctions drawn by the courts in allowing recovery to one group of plaintiffs and denying recovery to another. However, the law which has emerged is also quite clear that in order for a parent to recover for NIED in the context of medical care provided to a child, the parent must have witnessed the injury-producing event and have been aware at that time that the event was causing injury to the child. (Ochoa v. Superior Court (1985) 39 Cal.3d 159.) This is beyond dispute and the unquestioned law of the land.

After more than 30 years of refinement and explanation, we now have before us a long unbroken line of medical malpractice cases, starting with Jansen v. Childrens Hospital Medical Center, (1973) 31 Cal.App.3d 22, and culminating in Bird v. Saenz, (2002) 28 Cal.4th 910, where the courts have denied recovery to a family member who witnessed the effect of the injury-producing event, rather than the event itself. This theme has been repeated in these cases time and time again.

(See, e.g., Jansen v. Childrens Hospital Medical Center (1973) 31 Cal.App.3d 22;Justus v. Atchison (1977) 19 Cal.3d 564;Cortez v. Macias (1980) 110 Cal.App.3d 640;Wiggins v. Royale Convalescent Hospital (1984) 158 Cal.App.3d 914;Ochoa v. Superior Court (1985) 39 Cal.3d 159;Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388;Golstein v. Superior Court, (1990) 223 Cal.App.3d 1415;Breazeal v. Henry Mayo Newhall Memorial Hospital (1991) 234 Cal.App.3d 1329);Meighan v. Shore (1995) 34 Cal.App.4th 1025;Bird v. Saenz (2002) 28 Cal.4th 910.)

While some of these cases have permitted the parent to proceed with a claim for NIED, it is only where there has been a showing that the parent observed the negligent act rather than merely the effect of that act, and further that the parent made the connection at the time that the act was causing the injury; where that knowing comprehension of the connection between the act and injury is not present, recovery has uniformly and universally been denied.

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

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