Metropolitan News-Enterprise


Thursday, March 26, 2015


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C.A. Upholds Emotional-Distress Award to Two Who Saw Relative Choke to Death After Surgery


By a MetNews Staff Writer


California law permits an award of damages for negligent infliction of emotional distress to family members who watched a patient choke to death while waiting for her doctor to arrive after surgery, the First District Court of Appeal has ruled.

Div. Three yesterday certified for publication its Feb. 23 opinion affirming a judgment in favor of Phyllis Keys and Erma Smith, the daughter and sister, respectively, of Madeline Knox. The panel held, 2-1, that the plaintiffs—who were awarded $375,000 in damages against Berkeley’s Alta Bates Summit Medical Center—satisfied the standard for bystander liability under Thing v. La Chusa (1989) 48 Cal.3d 644 and similar cases.

Thing holds that a witness to a tort may recover emotional distress damages if present at the scene and aware of the injury-producing event and its cause, and if a close relative of the victim who suffers emotional distress beyond that which a disinterested observer would be expected to experience.

Knox underwent thyroid surgery in September 2008 and was taken to a medical-surgical unit at Alta Bates. Once there, the plaintiffs said, the hospital appeared to lack a sense of urgency after a nurse noticed Knox’s breathing was “noisy,” indicating a possible obstruction in her upper airway.

According to testimony, the rapid assessment team, composed of a respiratory therapist and a nurse from the intensive care unit, were called in about 15 minutes before the surgeon arrived. The surgeon then suctioned Knox’s mouth and nose, and as the surgeon was trying to relieve pressure by removing the sutures on her incision, Knox stopped breathing.

Knox suffered a permanent brain injury as a result of her blocked airway and was transferred to the ICU. She died nine days later, after life support was withdrawn.

The relatives’ emotional distress award was in addition to the award of $250,000 for medical malpractice resulting in wrongful death, reduced from $1 million under MICRA.  

Justice Peter Siggins, writing for the Court of Appeal, said the Thing standard was satisfied because Smith and Keys “observed Knox’s acute respiratory distress and were aware that defendants’ inadequate response caused her death.”  

Presiding Justice William McGuiness concurred, while Justice Stuart Pollak argued in dissent:

“Although plaintiffs were present and observed Knox’s struggle to breathe, they were not then aware that the cause of Knox’s continued suffering was defendant’s failure to correctly diagnose the source of the airway obstruction, the hematoma at the surgical site.  The jury was not told it must find such awareness to find NIED, and the record contains no evidence upon which such a finding could have been made. “

The case is Keys v. Alta Bates Summit Medical Center, A140038.


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