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/personal injury 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.
Ochoa v. Superior Court Discusion
Ochoa v. Superior Court, supra, 39 Cal.3d 159, the case relied on most heavily by plaintiffs at the pleading stage, involved a 13-year-old boy who died in the infirmary of a juvenile hall after repeated requests by his mother to provide care were refused. Recovery by the mother for negligent infliction of emotional distress was allowed, but only because she specifically observed the withholding of care and observed its effect on her son. The rule announced in Ochoa was where there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted. (39 Cal.3d at page 170.) In other words, for a parent to recover for NIED under Ochoa, they have to witness, with knowing comprehension, the causal connection between accident and injury. (See, Golstein v. Superior Court, supra, 223 Cal.App.3d at 1424-1425.)
There was a great deal of discussion regarding whether a plaintiff has to possess a certain level of medical sophistication in order to satisfy the contemporaneous awareness requirement of Ochoa. Although there is some reference to this in the case law, in our case that discussion really misses the point: It doesn’t matter whether Paul Green was a doctor or not, just as it didn’t matter whether Ms. Ochoa was a doctor or not; what matters is whether he made the connection between what he observed and injury to his daughter at the time. The undisputed evidence establishes that he did not, and so he cannot recover.
The key fact here, obviously not available to the court when it overruled the demurrers, is that at no time until the baby was born did Mr. Green ever observe harm to the baby, or even suspect it. Specifically, he testified in his deposition:
Q. You did not have any concern regarding your baby’s condition until you saw her delivered, correct?
A. Yes, sir.
Q. Where she was, as you explained, lifeless?
Q. At that point, you became concerned, correct?
Q. Prior to that time, you had assumed that she would be delivered and that she would be a healthy baby?
A. Yes. (Exhibit C .)
In other words, Paul Green did not have any concerns regarding harm to his daughter until the baby was born, and therefore any emotional distress he may have suffered was a result of alleged delays in treating his wife while in labor are not causally connected to the alleged injury, and the Ochoa test is not met. As for any alleged negligence occurring after Abbey was born, if it did occur, Mr. Green did not observe it.
Plaintiffs will maintain that this case is analogous to Ochoa because both cases involved an alleged delay in treatment, an event which is capable of observation. That part is true, but that is only half of the test announced in the Ochoa; there must also be a showing that the parent witnessed, with knowing comprehension, the causal connection between accident and injury. That part of the test cannot be met because Mr. Green admits that he never had any concerns about the baby until she was born and because, even if he had, he still did not witness the injury itself, because the child was inside his wife’s body at the time. See discussion of Hurlbut v. Sonora Community Hospital, supra, 207 Cal.App.3d. 388,infra. (See Part 7 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.