(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
Q. WAS IT YOUR UNDERSTANDING, WHEN YOU WERE TALKING WITH DR. Z. IN THE HALLWAY, THAT THAT PROBLEM OF GOT [SIC] BEING ABLE TO GET DONALD OXYGENATION WAS STILL AN ONGOING PROBLEM?
Q. AND DID YOU HAVE AN UNDERSTANDING THAT WHILE YOU WERE TALKING WITH DR. Z. ABOUT THE FACT THAT THE MEDICAL PROVIDERS STILL COULD NOT PROVIDE PROPER OXYGENATION TO DONALD, AND THAT WAS CAUSING HER A CONTINUING INJURY?
A. YES. (Deposition of David White, at pp. 77:12 – 78:20.)
Q. WAS IT YOUR UNDERSTANDING, WHILE YOU WERE TALKING WITH DR. Z. IN THE HALLWAY, THAT THE CONDUCT OF THE DOCTORS OR THE LACK OF CONDUCT OF THE DOCTORS WHO WERE CARING FOR DONALD IN THAT NICU TRANSITIONAL WAS CONTINUING TO CAUSE INJURY TO DONALD?
A. YES. (Deposition of David White, at p. 79:12-17.)
In other words, the health care providers promised an ENT would be present; and when the ENT failed to show, the father knew the child was not being properly treated. And, the child’s injuries were so apparent that DAVID WHITE thought his son was dead – then the injury cause by failure to obtain an airway caused damage of which the father was aware.
III THE EVIDENCE SHOWS THE ELEMENTS OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS PURSUANT TO THING
The father was present at and viewed the continuing injury – the lack of oxygen – to the child. The fourth cause of action of the Complaint for the father properly alleges all the elements of negligent infliction of emotional distress pursuant to Thing v. LaChusa (1989) 48 Cal.3d 644. Thing set forth the three requirements for the bystander cause of action for negligent infliction of emotional distress:
[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is 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; and (3) as a result suffers serious emotional distress …. (Emphasis added.)(Thing, 48 Cal.3d at p. 667-668.)
The Complaint and evidence follow precisely the above elements: the father was closely related; the father was present at the scene of the injury producing events and then aware they were causing injury; the father was seriously emotionally distressed. The very allegations of the Complaint and the evidence – the father’s deposition – refute the motion for summary adjudication – the father was then aware that it is causing injury to the victim (Thing, 48 Cal.3d at p. 667-668). The father testified to his contemporaneous observation; the motion for summary adjudication should be denied.
IV THE PLAINTIFF DIRECTLY VIEWED THE INJURY
Contrary to the motion for summary adjudication, the father need not be aware of the internal physiological and medical processes of the victim in order to witness the incident; the Plaintiff need only observe the continuing injury – the lack of oxygen. In Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178, the Court of Appeals stated that a wife who witnessed her husband’s deprivation of oxygen but actually could not see the full extent of the deprivation of oxygen can state a cause of action for emotional distress for witnessing the event which was still occurring.
Even if she could not perceive the full extent of the damage resulting from oxygen deprivation, she was clearly aware that his body was limp, that blood was running down his arm, and that he did not respond when she spoke to him. [ ] . [T]he injury-producing event was still occurring at the time Mrs. Ortiz discovered Mr. Ortiz trapped in the machine … (Emphasis added.) (Ortiz, supra, 234 Cal.App.3d at p. 186.) (See Part 5 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.