Personal Injury & Torts
Aug. 14, 2002
Plaintiffs Must See Negligence To Claim They Are Distressed
SAN FRANCISCO - The California Supreme Court on Monday protected hospitals from emotional distress suits filed by relatives of patients who have suffered complications during an operation.
The court unanimously held that bystanders who did not actually witness an injury inflicted during a surgical procedure cannot pursue a claim of negligent infliction of emotional distress and collect pain and suffering damages.
In Bird v. Saenz, 2002 DJDAR 9137, the high court dismissed distress claims brought by the grown daughters of a 68-year-old woman for the shock they experienced upon seeing her wheeled into the hospital hall on a stretcher after cancer surgery, looking swollen and purple.
The Bird sisters' claims were included in a medical malpractice action, alleging that the treating physicians severed a chest artery while installing a catheter to administer chemotherapy. The patient, Nita Bird, underwent corrective surgery that saved her life, but she died of cancer in 1996.
A Los Angeles trial judge dismissed the family's wrongful death suit on summary judgment. But in January 2001, the 2nd District Court of Appeal resurrected the family's malpractice claim, as well as the family's allegation that the surgeons' negligence caused emotional distress for the sisters.
On the distress claim, the appellate panel held that the family was not required to visually witness the injury being inflicted on Bird. Instead, the panel said, it was enough that Bird's daughters had a "sensory awareness" that the conduct of the doctors had caused Bird to become swollen and purple from internal bleeding.
But the high court concluded that a lay person's observations of the outcome of a medical procedure does not satisfy the requirement that an emotional distress claim be based on a "contemporary awareness of the injury-producing event."
Writing for the court, Justice Kathryn Mickle Werdegar said Bird must follow the precedent established in Thing v. LaChusa, 48 Cal.3d 644 (1989), and reiterated in subsequent decisions, requiring the plaintiff to be present at the scene of the injury.
"This is not to say that a layperson can never perceive medical negligence, or that one who does perceive it cannot assert a valid claim for NIED,' she wrote. "To suggest an extreme example, a layperson who watched as a relative's sound limb was amputated by mistake might well have a valid claim for NIED against the surgeon."
But, Werdegar said, most people watching a surgical team in action would not be "meaningfully aware" of an injury-causing mistake.
"In summary, plaintiffs have not shown they were aware of the transection of Nita's artery at the time it occurred," Werdegar wrote.
"Nor have they shown they were contemporaneously aware of any error in the subsequent diagnosis and treatment of that injury in the moments they saw their mother rolled through the hall by medical personnel," she said. "In view of these undisputed facts, plaintiffs cannot show they were 'present at the scene of the injury-producing event at the time it occurred and were then aware that it was causing injury to the victim.'"
Peter Blumberg
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