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.
Hurlbut v. Sonora Community Hospital
This is not the first time this issue has come up in the context of a birth injury case. For example, in Hurlbut v. Sonora Community Hospital, supra, 207 Cal.App.3d. 388, the undisputed facts established that the father was present during labor, during which time he became concerned about changes on the fetal monitor and possible harm to the baby. Even though the father was concerned about his child, and suffered emotional distress as a result, the court denied NIED recovery because he did not observe the consequent harm. As in our case, the combination of observing evidence of complications during labor and actual harm to a baby, discovered at the time of delivery, was found to be insufficient. The Hurlbut court stated:
The most that can be said is that certain experiences allow the parents to “deduce that some problem or injury had or would damage their child.” There was no direct perception of injury. There is no evidence of any contemporaneous awareness that defendant’s conduct was the cause of the perspective harm. It was not until after the fact that observations of the infant confirmed some injury.
Similarly, in Justus v. Atchison, (1977) 19 Cal.3d 564 (questioned on other grounds in Ochoa, but subsequently approved in Burgess v. Superior Court, supra, 2 Cal.4th 1064), two stillbirth cases were consolidated for purposes of appeal. In both those cases, the expectant father observed concerning signs during labor and became concerned regarding delays in delivering the child, and saw that his fears had been realized.
In both of those cases, recovery was denied, because the “contemporaneous observance” connection was not present: Although each plaintiff was in attendance at the death of the fetus, that event was by its very nature hidden from his contemporaneous perception. Indeed, because of the physical nature of the labor and delivery process, it is almost always impossible for an expectant father to observe, with knowing comprehension, the causal connection between observed complications and injury to the baby, even if he suspects such injuries are occurring. (See Part 8 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.