Metropolitan News-Enterprise


Tuesday, August 13, 2002


Page 1


Relatives Cannot Recover Damages for Distress Over Medical Treatment Given Decedent, C.A. Rules


By a MetNews Staff Writer


The adult daughters of a purported medical malpractice victim cannot recover from the allegedly negligent doctors for their distress at seeing their mother in an acute condition, the state Supreme Court ruled yesterday.

Unanimously reversing Div. Seven of this district’s Court of Appeal, the justices reinstated a summary judgment in favor of Drs. Rolando Saenz, David M. Fung, and Scott M. Eisenkop.

Janice Bird and Dayle Edgemon accused the doctors of having botched their mother’s November 1994 operation—a scheduled outpatient surgery to insert a catheter in order to facilitate chemotherapy. Nita Bird had been diagnosed with cancer six weeks earlier.

In opposition to the summary judgment motion, Janice Bird declared that she saw her mother “being rushed down the hallway to the…CCU. She was bright blue….Her feet were way up in the air, her head was almost touching the ground, there was all these doctors and nurses around there and they’re running down the hallway, down to that end of the hospital . . . .” 

Another doctor, she said, told her that medical personnel “nicked an artery or a vein, and it looks like all the blood went into her chest,” requiring insertion of a drainage tube and other live-saving procedures pending the arrival of a vascular surgeon. Ten or 15 minutes later, she said, she saw the doctor running down the hall with multiple units of blood. 

At that point, her sister arrived, and both of them later saw their mother being rushed down the hallway to surgery.

Nita Bird was discharged from the hospital 33 days later, resumed chemotherapy the following month, and succumbed to cancer in January 1996. The plaintiffs sued for wrongful death and negligent infliction of emotional distress, but the trial judge granted summary judgment on both claims.

The Court of Appeal reversed, but the high court granted review, limited to the emotional distress claim.

Justice Kathryn M. Werdegar, writing for the high court, agreed with Los Angeles Superior Court Judge Anthony J. Mohr that none of the events witnessed by the daughters made either of them the type of “direct victim” who can recover damages for negligent infliction of emotional distress based on injury to another family member.

Citing Thing v. La Chusa (1989) 48 Cal.3d 644, Werdegar said the plaintiffs did not meet the legal requirement that a plaintiff in such a case be “present at the scene of the injury-producing event at the time it occurs and [be] then aware that it is causing injury to the victim.”

The daughters, Werdegar noted, were unaware of the arterial injury until the doctor told them and they saw some of the consequences for themselves. The plaintiffs’ contention that the “injury-producing event” was the failure to properly diagnose and treat that injury fails, the justice explained, because the sisters were laypersons and “could not meaningfully have perceived any such failure.”

The case was argued on appeal by Steven G. Cohn of Westlake Village for the plaintiffs, Curtis A. Cole of Thelen Reid & Priest in Los Angeles for Saenz and Fung, Mark B. Connely of Bonne, Bridges, Mueller, O’Keefe & Nichols in Los Angeles for Eisenkop, and David S. Ettinger of Encino’s Horvitz & Levy for the California Medical Association, California Dental Association and California Healthcare Association as amici in support of the defendants.

The Civil Justice Association of California also filed an amicus brief backing the doctors.

The case is Bird v. Saenz, 02 S.O.S. 4194.


Copyright 2002, Metropolitan News Company