(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)
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.
Reply of Defendant Universal Hospital to Plaintiffs’ Opposition to Defendant’s Motion to Strike Portions of Complaint
This action is premised on care rendered to plaintiff Cindy Jones. Cindy Jones contends that Cedars-Sinai and the other defendants provided negligent care to her regarding a bump on her left hand. Cindy Jones alleges that she was negligently notified that she did not test positive for a highly contagious strain of staphylococcus (MRSA), causing her to fail to take precautionary measures and to unknowingly expose her family, including her daughter, the minor plaintiff, Tammy Jones, to the MRSA, resulting in the daughter’s hospitalization. The first cause of action is asserted by Cindy Jones relating to the care she received at Universal Hospital in Sacramento, under Code of Civil Procedure sections 435 and 436, to strike from paragraph 12 of the first cause of action, page 3:27 to page 4:2, of the complaint:
Therein Plaintiff unknowingly exposed her family, including Co-Plaintiff Tammy Jones, and the general public to the highly contagious strain of MRSA, resulting in the infection and hospitalization of Tammy Jones.
These allegations have nothing to do with the claim by plaintiff Cindy Jones for negligence. Cindy Jones is seeking to recover damages for the loss of her daughter’s consortium. Recovery of such damages is precluded by Baxter v. Superior Court (1977) 19 Cal.3d 461. If plaintiff Cindy Jones is trying to recover damages for negligent infliction of emotional distress as a bystander witness of the injuries allegedly suffered by her daughter, she has not alleged any facts showing that she had a contemporaneous awareness of any injury at the time it was occurring as required under Thing v. LaChusa (1989) 48 Cal.3d 644, 667-668 and Bird v. Saenz (2002) 28 Cal.4th 910, 920-921.
It is not clear from the opposition to the motion to strike what position Cindy Jones is taking. The opposition states that the first and second causes of action are properly pled and that, therefore, the motion to strike should be denied. However, the motion to strike is not directed at either the first or second causes of action, it is limited to certain allegations set forth in paragraph 12 regarding Cindy Jones allegedly exposing her family, including her daughter, plaintiff Tammy Jones, to the allegedly contagious infectious disease. Cindy Jones cannot recover for loss of her daughter’s consortium or for negligent infliction of emotional distress as a bystander witness. The motion to strike should be granted. (See Part 2 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.