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/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.
Plaintiffs’ citation of Molien v. Kaiser Foundation Hospitals, (1980) 27 Cal.3d 916, is confusing at best. Molien involved a husband’s claim of emotional distress based on the harm that occurred to him and his marriage. Specifically, the physician misdiagnosed Mr. Molien’s wife with syphilis, leading her to believe he had had an extramarital affair. This caused significant marital problems as well as causing Mr. Molien to be medically tested and to take medication. As the Supreme Court later held in Burgess, to the extent Molien stands for the proposition that it introduced a new method for determining the existence of a duty, as limited by foreseeability, it should not be relied upon and its discussion of duty is limited to its facts. Burgess, at 1074. However, Burgess did reaffirm the principles derived from Molien as follows:
(1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached. (Burgess at 1074.) Again, no duty arose between these moving parties and Mr. Lee. Therefore, Timothy Lee cannot sustain a claim for NIED, based on the direct victim theory.
Timothy Lee Cannot State a Claim for NIED Based on the Bystander Theory.
Thing v. La Chusa, (1989) 48 Cal.3d 644, is the utmost authority when evaluating whether Mr. Lee can state a claim for NIED. Plaintiffs attempt to distinguish the facts in Thing from those in the present case. Plaintiffs are correct; Thing did involve an auto accident in which the mother did not actually see the auto hit her child but saw her child in the street after the accident. However, plaintiffs attempt to distinguish the two cases because Thing was an auto accident case is way off base. Mr. Lee and Ms. Thing both did not actually see the auto hit the child [or the alleged fetal injury]. Plaintiffs claim that Timothy Lee witnessed the pain and suffering. [Opposition, p. 10, line14]. Whose pain and suffering? As detailed at length in the Motion, in Justus v. Atchison (1977) 19 Cal.3d 564, the Supreme Court had already considered the sensory and contemporaneous observance factor and drew a bright line barring a father present at a stillborn birth from recovery under the bystander theory.
Based on the foregoing, it is respectfully requested that the court grant moving parties’ Motion for Summary Adjudication.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.