(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
B. BURGESS: THE SUPREME COURT IN BURGESS RECOGNIZED THE OBSTETRICIAN OWES A SEPARATE DUTY TO A MOTHER NOT TO INJURE HER CHILD – DISTINCT FROM THE OBSTETRICIAN’S DUTY NOT TO INJURE THE MOTHER
The medical care providers can breach two duties when they commit negligence resulting in the delivery of an injured child. The first breach of duty can be to the mother if she has suffered damages such as the mother here. Liability for breach of such a duty is set forth in statute: Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want or ordinary care or skill in the management of his property or person, …. (Civil Code, § 1714.) The second breach of duty is the breach of duty resulting in the mother’s emotional distress arising from the abnormal event of participating in a negligent delivery and reacting to the tragic outcome …. (Burgess, supra, 2 Cal.4th at p. 1085.)
Consequently, the mother here was correct to allege two separate and distinct causes of action, one for herself, another for her participation in the abnormal delivery and injury to the child which was delivered. Since the mother here has suffered the breach of two separate duties, she is allowed to allege two separate causes of action.
The Supreme Court expressly held that the health care provider owes a duty to the mother regarding the medical treatment of the fetus. This is a separate and distinct duty apart from the breach of the duty to the mother resulting in the mother’s injury:
It is in light of both these physical and emotional realities that the obstetrician and the pregnant woman enter into a physician-patient relationship. It cannot be gainsaid that both parties understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother. (See Part 5 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.