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.)
It was exactly this type of NIED claim that led to the Supreme Court’s unanimous opinion in Bird v. Saenz (2000) 28 Cal.4th 910, and bears repeating. There, the Supreme Court acknowledged the crucial point the Court of Appeal had overlooked – lay people, as a general rule, necessarily lack the ability to meaningfully comprehend medical errors when they occur. Being distressed by watching medical care rendered to a loved one is not enough to state a claim:
The Court of Appeal did not explain how a bystander without medical acumen, except in the most extreme case…could meaningfully be aware that a course of treatment is causing injury. In any event, a rule permitting bystanders to sue for NIED on account of unperceived medical errors hidden in a course of treatment cannot be reconciled with Thing’s requirement that the plaintiff be aware of the connection between the injury-producing event and the injury. The Court of Appeal’s rule would, moreover, impose nearly strict liability on health care providers for NIED to bystanders who observe emotionally stressful procedures that turn out in retrospect to have involved negligence. We may reject such a rule as inconsistent with Thing.
Thus, allowing the father to amend is futile, because he could not possibly have witnessed or meaningfully comprehended the transmission of a latent bacterial infection from mother to child during birth. The only way he could have known about the infection is to be told about it after the fact. The demurrer to his NIED claim should be sustained without leave to amend.
As to the mother, it is unclear if she is suing for medical malpractice and NIED recovery, or just for NIED because plaintiffs failed to identify the party or parties asserting the first cause of action in violation of CRC, Rule 312(g). If she is suing for both, her emotional distress damages for the injury to the child are subsumed in her own medical malpractice action and the NIED claim is surplusage; if not, she may have a Burgess NIED claim only. Either way, she has yet to properly plead a right to recovery under Burgess. Burgess permitted the mother’s recovery for emotional distress damages arising out of her physician-patient relationship with the obstetrician. Thus, the Mitt mother’s individual medical malpractice claim, if she intended to plead one, encompasses Burgess damages for NIED, there is no need for her to assert a separate cause of action for NIED. Burgess v. Superior Court, supra, at 1074.
The court should sustain the demurrer to the father’s NIED claim without leave to amend, because the nature of the injury to the child makes it impossible for him to truthfully plead he knew a bacterial infection was passed at the time it occurred during birth. The demurrer to the mother’s claim should be sustained. She should be required to clarify what causes of action she asserts, and to plead the elements entitling her to recovery under Burgess, as cannot qualify as a bystander which is what she has attempted to plead.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.