Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
The Complaint alleges a number of causes of action beside negligence regarding the child including a separate cause of action for the father, DAVID WHITE, for bystander emotional distress pursuant to Thing v. LaChusa (1989) 48 Cal.3d 644.
The hospital, GENERAL HOSPITAL and various physicians have now filed a motion for summary adjudication on the father’s bystander emotional distress action.
Contrary to the motion, the father does not have to be aware of medical negligence to allege bystander emotional distress – he directly viewed the injury. The father saw the injured minor while the minor was suffering from a continuing injury a continuing lack of oxygen. The motion for summary adjudication is absolutely wrong; the father need not be aware of medical negligence – or internal physiological processes – to witness the incident. What the Supreme Court required was that the father be present at the scene of the injury-producing. event at the time it occurs and is then aware that it is causing injury to the victim … (Emphasis added.) (Thing, 48 Cal.3d at p. 667-668.) The father does not have to be a medical expert and determine that there was medical negligence. The Supreme Court was clear: [W]e by no means suggest… that plaintiff must be aware of the tortuous nature of defendant’s actions … [Such requirement would lead to the anomalous result that a mother who viewer her child being struck by a car could not recover because she did not realize that the driver was intoxicated. (Emphasis added.) (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 170.)
All that is necessary is that the father be present for the injury-producing event and then know there is an injury: [W]e conclude it is not necessary that a plaintiff bystander actually have witnessed the infliction of injury to her child, provided that the plaintiff was at the scene of the accident and was sensorially aware, in some important way, of the accident and the necessarily inflicted injury to her child. (Emphasis added.) (Wilks v. Hor (1992) 2 Cal.App.4th 264, 1271.) Here, the father was aware – in some important way – of the injury to the minor.
I STATEMENT OF FACTS
First, Defendants DR. ANDREW V., DR. PAUL W., DR. ROBERT X, and DR. SUSAN Y., assured DAVID WHITE that an ear, nose and throat (ENT) specialist would be at the delivery because of the baby’s micrognathia of the lower jaw. Then at the delivery, the father realized that the ENT was not present; consequently, he then knew that the child was not being properly treated and was suffering injury:
Q. GOING BACK TO AUGUST 2ND, THAT MEETING NIGHT WITH DR. V., DID YOUR DAD ASK DR. V., ANY QUESTION OR QUESTIONS?
A. BEFORE HE LEFT THE ROOM, MY DAD STOPPED HIM AND SAID, CAN WE BE ASSURED THAT AN ENT WILL BE HERE? ARE YOU A HUNDRED PERCENT? I MEAN, THAT’S WHY WE ARE HERE. AND DR. V. SAID, I ASSURE YOU, THERE WILL BE AN ENT HERE.
Q. MEANING WHERE?
A. PRESENT AT DONALD’S OPERATION. THAT’S MORE THE PHRASE HE USED. HE SAID, WILL THERE BE AN ENT PRESENT AT DONALD’S OPERATION?’
Q. WHAT OPERATION?
A. DELIVERY. EXCUSE ME.
Q. DID DR. W., DR. Y., DR. X. AND DR. V., ALL ASSURE YOU THAT A PEDIATRIC ENT WOULD BE PRESENT AT DONALDS DELIVERY?
A. YES.
Q. DID YOU RELY ON THAT REPRESENTATIONS [SIC] FROM THOSE DOCTORS INDIVIDUALLY?
A. YES.
Q. IF ANY OF THEM HAD TOLD YOU THAT A PEDIATRIC ENT WOULD NOT BE PRESENT AT THE DELIVERY, WOULD YOU HAVE TAKEN MONICA SOMEWHERE ELSE OR TRIED TO GET A PEDIATRIC ENT TO BE PRESENT?
A. IF THEY SAID NO ENT WOULD BE PRESENT, I WOULD HAVE TOOK HER ELSEWHERE.
Q. AND OBVIOUSLY ON THE 6TH, BEFORE YOU GO TO THE OPERATING ROOM, IF THEY SAID NO ENT WOULD BE PRESENT, YOU COULDN’T TAKE HER ELSEWHERE. BUT WOULD YOU HAVE TRIED TO GET AN ENT PRESENT?
A. ABSOLUTELY. IT WAS THE WHOLE REASON WE WERE DOWN THERE. (Emphasis added.) (Deposition of David White, at pp. 76:5 – 77:11.) (See Part 3 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.