Not Your Typical Medical Negligence: Defending a Negligent Infliction of Emotional Distress Claim
Written By: Alan B. Graves
Neil, Dymott, Frank, McFall & Trexler APLC
San Diego, CA
Health care professionals may be surprised to learn there is a legal cause of action that allows a bystander who witnessed negligent treatment to a patient to sue for their own emotional distress. In California, a bystander who witnesses the negligent infliction of death or injury of another may recover for resulting emotional trauma even though he or she did not fear imminent physical harm. (See Dillon v. Legg (1968) 68 Cal. 2d 728, 746-747.)
However, it is not that simple. Just as a loss of consortium claim requires the plaintiff to be the spouse of the injured party, a claim for NIED-bystander has specific factors that must be met for a plaintiff to recover.
Nuts and Bolts
The California Supreme Court in Thing v. La Chusa outlined the basic elements a plaintiff must meet to recover for NIED-bystander. “In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the 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 emotional distress beyond that which would be anticipated in a disinterested witness. (Thing v. La Chusa (1989) 48 Cal.3d 644, 677.)
Simultaneously, the Supreme Court also limited the scope of claims for NIED, stating its purpose in doing so was to “avoid limitless liability out of all proportion to the degree of a defendant’s negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread.” (Thing, supra, at p. 664.)
What Constitutes a “Close Relationship”
Typically, the element of a “close relationship” between the injury victim and the plaintiff is satisfied if it is an immediate family member, such as mother, father, or child. Yet, the close relationship required between plaintiff and the injury victim does not include the relationship found between unmarried cohabitants. (Elden v. Sheldon (1988) 46 Cal.3d 267, 273.)
In Thing the Supreme Court opined, “in most cases no justification exists for permitting recovery for [NIED] by persons who are only distantly related to the injury victim. Absent exceptional circumstances, recovery should be limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim." (Thing, supra, 48 Cal.3d, p.668, fn. 10.)
For example, in Moon v. Guardian Postacute Services (2002) 95 Cal.App.4th 1005, the court held plaintiff (son-in-law) was not "closely related" to his mother-in-law, such as was necessary for him to establish a bystander claim to recover for NIED. Plaintiff in that case alleged he observed defendant’s (an assisted living facility) abuse of his mother-in-law. Prior to the mother-in-law going to an assisted living facility, she had resided with the son-in-law and he maintained a close relationship with her. However, the court held merely pleading a strong emotional bond akin to a son and mother relationship does not satisfy the exceptional circumstances requirement. (Moon, supra, p. 1013.)
Plaintiff Must Be Both Present and Aware of Injury
The second element of being present during the injury-causing event and aware that it is causing injury to the victim has proved to be difficult for many plaintiffs to demonstrate. To satisfy the second element, a plaintiff must allege they witnessed the conduct and contemporaneously understood the conduct caused harm. (Goldstein v. Superior Court (1990) 223 Cal.App.3d 1415, 1427).
Someone who hears an accident but does not then know it is causing injury to a relative will not have a viable claim for NIED-bystander, even if the missing knowledge is acquired moments later. For example in Fife v. Astenius (1991) 232 Cal.App.3d 1090, the court found no viable claim for NIED when parents and brothers of an accident victim heard a crash, saw debris fly above the wall separating their yard from the street, and ran outside to find their injured relative still inside the damaged vehicle. In Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, a relative watched a paramedic conduct a medical examination that failed to detect signs of sickle cell shock. The relative was present at the scene when the injury-producing event occurred, but there was no evidence plaintiff was aware the victim was being injured by the paramedic’s conduct. Thus the court denied plaintiff’s claim for NIED-bystander.
In Bird v. Saenz (2002) 28 Cal.4th 910, plaintiffs brought their mother to the hospital for chemotherapy. During the surgical procedure to insert a venous catheter, an artery was pierced, which led to internal bleeding. Plaintiffs heard a call for a thoracic surgeon, saw their mother being rushed by medical personnel to another room, heard the doctor’s report of their mother possibly having suffered a nicked artery or vein, and then saw their mother being rushed to surgery. The Supreme Court denied plaintiffs’ claim for NIED, holding plaintiffs had not shown they were contemporaneously aware of any error in the subsequent diagnosis and treatment of their mother. The court stated: “The problem with defining the injury-producing event as defendants’ failure to diagnose and treat the damaged artery is that plaintiffs could not meaningfully have perceived any such failure. Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders.” (Bird, supra, 28 Cal.4th at p. 917.)
The Supreme Court in Bird opined “[t]his is not to say a layperson can never perceive medical negligence, or that one who does perceive it cannot assert a valid claim for NIED. 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. Such an accident, and its injury-causing effects, would not lie beyond the plaintiff’s understanding awareness. But the same cannot be assumed of medical malpractice generally.” (Bird, supra, 28 Cal.4th at p. 918.)
Further, in Breazeal v. Henry Mayo Newhall Memorial Hospital (1991) 234 Cal.App.3d 1329, a plaintiff observed unsuccessful efforts to restore her son’s breathing with a tracheotomy and endotracheal tubes. There was evidence presented that plaintiff saw one of the defendant physicians bent over her son with blood on both of them. However, there was no evidence at the moment of the injury-producing event the physician was negligent versus an unsuccessful attempt to correct an already existing injury. Nor was plaintiff contemporaneously aware any such event was causing him injury.
Recent Case with a New Twist
In a recent August 2010 case, an appellate court was faced with a new twist. In Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926, plaintiffs alleged defendants’ (physicians and hospital staff) post-operative failure to respond to their mother’s steadily worsening condition despite their pleas for medical intervention gave rise to valid NIED-bystander claim.
During a sigmoid colon resection for recurrent diverticulitis, the mother’s bowel was nicked. In the days following the surgery, with her daughters frequently at their mother’s bedside, her condition worsened, and she fell in to a coma. The mother later recovered and was released from the hospital. The mother filed an action for medical negligence, and the father/husband filed an action for loss of consortium. Plaintiffs (two daughters) argued they were present at the scene of a second injury-producing event (i.e. medical neglect), and their experience in the medical field enabled them to perceive the dangers faced by their mother in the event no curative action was taken.
The lower court denied the daughters’ claim for NIED-bystander. Plaintiffs sought review from the Appellate Court, arguing their medical experience put them in a special class of bystanders. Upon review, the Appellate Court focused on both the Supreme Court’s ruling in Thing and another Supreme Court ruling, Bird v. Saenz (2002) 28 Cal. 4th 910, where plaintiffs sought to recover damages for NIED based on medical malpractice suffered by their mother.
Plaintiffs in Morton argued they had medical experience sufficient to distinguish the holding in Bird. The Appellate Court disagreed, “even if courts were willing to recognize that only a specific class of non-layperson bystanders could recover for NIED for observing the consequences of an injury-producing event, plaintiffs did not allege factually what ‘expertise’ enabled them to understand the medical treatment given their mother was inadequate. The allegation in their complaint that they are ‘experienced in the medical field’ is conclusory and without factual support.” (Morton, supra, 187 Cal. App.4th at p. 935) The Appellate Court affirmed the lower court’s ruling denying plaintiffs’ claim for NIED.
A claim for NIED-bystander is not a simple claim where one can just witness an injury then seek to recover. Even more difficult is an NIED-bystander claim that involves medical negligence. Rulings in Thing and Bird provide a framework to avoid “limitless liability.” However, NIED-bystander claims are still frequently alleged alongside medical malpractice actions. While the Appellate Court in the recent Morton case denied plaintiffs’ claim, there are sure to be new claims with the “right set of facts.” With medical information at the fingertips of laypersons today (books, internet, etc.), you can be sure the Court will be tested on what “medical experience” is necessary for a layperson to argue they are a “special” bystander when medical negligence is at issue. For now, the type of misdiagnosis or medical negligence involved will have to be very basic if medical professionals are going to be liable to bystanders who witness their conduct.
Alan Graves is an associate Neil Dymott. His areas of practice include business litigation and labor and employment law. For further information, Mr. Graves can be reached at (619) 238-1712 or firstname.lastname@example.org