In the November 2015 edition of Plaintiff magazine Markus B. Willoughby gives a summary on Negligent Infliction of Emotional Distress (NIED) claims in medical malpractice cases.
The article focused on how bystander NIED claims in medical malpractice cases has been modified by the California Supreme Court since it began with the famous case studied in law school tort courses - Dillon v. Legg (1968) 68 Cal.2d 728. The California Supreme Court was the first high court in the United States to rule a parent who witnessed the death or injury of a child from negligence could recover for the emotional distress even though the parent did not fear immediate physical injury. The Dillon case was about an injury to a child from a car accident.
In1985, in Ochoa v. Superior Court (1985) 39 Cal.3d 159, the California Supreme Court was asked whether, to state a cause of action under the Dillon case, the child’s harm needed to have been the consequence of a brief and sudden occurrence viewed contemporaneously by the plaintiff. Ochoa was about a 13-year-old boy admitted to a juvenile hall infirmary for a cold, later diagnosed as pneumonia. When the mother saw the boy, the mother believed the boy was in severe pain. She told the nursing staff her son required medical treatment, but the nurses responded the son was fine. The mother became upset and distressed. The next day, the boy was pale, sweaty, and complained of pain. The mother asked the nurses if she could take her son to a doctor, but the nurses did not allow her to do so. The mother filed suit against the medical providers for her emotional distress. California Supreme Court stated the mother “was aware of and observed conduct by the defendants which produced injury in her child. She was aware of the fact that her child was in need of immediate medical attention. To her knowledge the defendants had failed to provide the necessary care.” (Id. at 169-70.)
In Thing v. La Chusa (1989) 48 Cal.3d 644, the California Supreme Court provided these elements for a NIED claim: (1) the plaintiff must be closely related to the injured victim; (2) the plaintiff must have been present at the scene of the injury producing event at the time it occurred, and aware that it was causing injury to the victim; and (3) as a result, the plaintiff must have suffered serious emotional distress – a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. To prevent confusion in the context of medical negligence, the court held: “when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted.” The plaintiff in the Thing case did not have to know the defendants negligently misdiagnosed a child. The mother met the elements for NIED when she knew the medical providers refused or neglected to give the child treatment, and the lack of treatment was the cause of injury to the child.
The Thing case confirmed plaintiffs did not need to know that the medical provider’s conduct was “negligent,” rather they only needed to know that the medical provider was neglecting to give treatment and the neglect caused injury.
NIED claims in California in the context of medical malpractice have been successful for plaintiffs when the court is focuses on the principles of Ochoa – the lay plaintiff bystander’s awareness that the family member is being injured by the medical provider, even when unable to explain the disease or the complexities of medicine.