(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.
Defendnat’s Opposition Motion cont.
CINDY JONES CANNOT RECOVER FOR ANY ALLEGED LOSS OF HER DAUGHTER’S CONSORTIUM.
It appears that Cindy Jones is attempting to recover damages she allegedly suffered because her daughter became infected. This appears to be a loss of consortium claim. It is well-settled that a parent cannot recover damages for the loss of a child’s consortium. (Baxter v. Superior Court, supra, 19 Cal.3d 461.) The motion to strike should be granted.
CINDY JONES DOES NOT HAVE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
In the opposition, Cindy Jones asserts that she has a valid cause of action for negligent infliction of emotional distress ( NIED ) because Defendants failed to diagnose, treat and warn Plaintiffs of the impending danger to which she unknowingly exposed family members and the public. Plaintiff relies on Burgess v. Superior Court (1992) 2 Cal.4th 1064; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916; and Ochoa v. Superior Court (1985) 39 Cal.3d 159. These cases do not support a claim for negligent infliction of emotional distress by Cindy Jones.
a. The Allegations Do No Support a Claim for NIED Based on a Direct Victim Theory.
By citing to Burgess and Molien, Cindy Jones is apparently contending that she can recover for NIED as a direct victim based on her allegedly exposing family members and the general public to the allegedly contagious disease. There is no merit to the claim. (See Part 3 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.