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 a personal injury case 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.)
In the absence of an express contract warranting a specific result, lawsuits against physicians resulting from negligent treatment are not based in contract, but in tort. Ibid; Custodio v. Bauer (1997) 251 Cal.App.2d 303; Schwartz v. Regents of the University of California (1990) 226 Cal.App.3d 129-father denied recovery for emotional distress as the alleged direct victim of a psychotherapist even though he participated in counseling sessions to improve the family relationship. The court also held that the simple existence of a contract between a parent and a medical caregiver to provide medical treatment for a child is not in itself sufficient to impose on the caregiver a duty of care owed to the parent. (Id. at 168.)
This was confirmed nearly forty years ago:
It is thoroughly settled in California that In the absence of an express contract the physician or surgeon does not warrant cures. By taking a case he represents that he possesses the ordinary training and skill possessed by physicians and surgeons practicing in the same or similar communities, and that he will employ such training, care, and skill in the treatment of his patients. In the absence of an expressed contract the general rule is applicable that those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.’ Custodio v. Bauer, supra, at 314-315
Any doubt about the parents inability to qualify as direct victims stemming from a contract is resolved by our Supreme Court in Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124. There the appellate court reversed a summary judgment granted to the defendant-pharmacy against the parents of an infant injured by medication the parents administered to him, based upon the pharmacist’s erroneous directions to the parents who, unwittingly, administered five times the appropriate medication dose.
The Huggins parents sought to differentiate their claim from those of other parents who contracted for an erring health care provider’s services, on the ground that the medical care for which plaintiffs contracted (i.e., the filling of a prescription) necessarily involved their personal participation. The justices rejected that contention, reasoning in language directly applicable here:
If a child is seriously injured by erroneous medical treatment caused by professional negligence, the parent is practically certain to suffer correspondingly serious emotional distress. But even if it were deemed reasonably foreseeable to a pediatrician, or a pharmacist, that a parent’s realization of unwitting participation in the child’s injury would by itself be a source of significant emotional distress from guilt, anxiety, or otherwise, that foreseeability would not warrant our establishing a new right of recovery for intangible injury. (Id. at 132-133, cits. omit.)
The opinion concluded:
“Because plaintiffs were not the patients for whom defendant dispensed the prescribed medication, they cannot recover as direct victims of defendant’s negligence.” (Id. at 133.)
Huggins teaches that parents who contract for health care services on behalf of a child, even if directly involved in the administration of that care, are not on that basis “direct victims.” Thus, no duty was owed either parent based upon a contract. (See Part 3 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.