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.)
In Justus v. Atchison (1977) 19 Cal.3d 564, the California Supreme Court made it clear that a layperson’s witnessing events during delivery does not give rise to a cause of action for NIED, because a layperson is not aware of the significance of the events. Justus involved two factually similar actions for medical malpractice and wrongful death, each predicated on alleged negligence occurring during delivery. The fathers in both actions sought to recover for NIED for what they witnessed during the delivery, but the Supreme Court held that they did not have a cause of action. The Court succinctly summarized the facts of the two cases, which are remarkably similar to the facts in the instant action:
Each plaintiff-husband asserts he was present in the delivery room and in close proximity to his wife, and observed the defendants ministering to the latter. In Justus, plaintiff then alleges he saw the manipulation of the fetus with forceps and by hand, and the emergency procedures performed on his wife in connection with the attempted Cesarian section. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
In his complaint, plaintiff Powell alleged he was aware of the diminution of the fetal heart tones and observed the nurse’s anxiety at her inability to monitor them, and was further aware of the resulting emergency and the failure of the doctor to respond promptly when called. Each of these plaintiffs then asserts he saw the prolapsing of the umbilical cord of the fetus … and the pain and trauma of his wife. Finally, each alleges he was present when the attending physician announced that the fetus had died. Id. at 584.
Here, there are no facts alleged demonstrating that the father, even if he witnessed the delivery, was then aware that it was causing injury to his child, and the negligent cause of the injury. As a result, the fourth cause of action does not state facts sufficient to constitute a cause of action for NIED on a bystander theory. (See Part 6 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.