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.
The Court raised a question regarding circumstantial evidence that something had been done wrong, namely the birth of a blue baby, which was precisely the issue confronted by the Hurlbut and Justus courts. However, the law is clear that circumstantial evidence is not enough: evidence of severe injury from an overdose of radiation (Golstein), a baby born dead (Justus), a child who deteriorates in the hospital (Jansen), a brain injury during labor and delivery (Hurlbut), a child covered with blood with a doctor leaning over him (Breazeal), or a severed artery during surgery (Bird), all amount to circumstantial evidence of negligence, and circumstantial evidence of a connection between the observed negligence and the injury.
However, as the courts correctly found in each one of these cases, such evidence is still not enough. Under Ochoa, and every factually apposite case to come down since then, there must be an observed connection between the accident and the resulting injury, a witnessing, with knowing comprehension. Thus, observing a baby born blue, or worse, even after observing concerning events during labor, is not enough, and the unbroken line of cases before us, including Ochoa, so hold.
Although not specifically within the scope of its ruling, this result was hinted by the Supreme Court in 1992 in Burgess v. Superior Court, supra, 2 Cal.4th 1064:
Amicus curiae California Trial Lawyers Association raised and briefed the issue of whether a father, such as Moody, should be permitted to recover for negligent infliction of emotional distress resulting from injuries inflicted upon his child during child birth. While it appears that the contemporaneous observation requirement of Thing v. LaChusa [(1989) 48 Cal.3d 644] would bar this claim, we decline to decide the issue, since Moody’s claim has been dismissed.
Just as in Burgess, also a birth injury case, “the contemporaneous observation requirement of Thing v. La Chusa” is not present here, and Paul Green’s cause of action for NIED fails. (See Part 10 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.