JULIA BURGESS, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; NARENDRA GUPTA et al., Real Parties in Interest.
No. S022805
Supreme Court of California
July 9, 1992.
2 Cal. 4th 1064
David Silverton, Shaun L. Quinlan and Michael J. McKeown for Petitioner.
No appearance for Respondent.
Bonne, Jones, Bridges, Mueller & O‘Keefe, Peter A. Schneider, Keith M. Staub and Cameron J. Whitehead for Real Parties in Interest.
Horvitz & Levy, Kathy L. Eldredge and David S. Ettinger as Amici Curiae on behalf of Real Parties in Interest.
OPINION
PANELLI, J.—Can a mother recover damages for negligently inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery? Because the professional malpractice alleged in this case breached a duty owed to the mother as well as the child, we hold that the mother can be compensated for emotional distress resulting from the breach of the duty. For public policy reasons that have been previously articulated by this court, however, these damages do not еxtend to emotional distress due to loss of affection, society, companionship or similar harm that the mother may incur in adjusting to and living with the child‘s impairments.
I. BACKGROUND
This proceeding arises out of the alleged negligent delivery of Joseph Moody II (Joseph). The petitioner (plaintiff) is Julia Burgess (Burgess),
The facts relevant to our decision are not in dispute. On February 26, 1988, Burgess entered labor. She was admitted to the hospital under the care of Gupta, her obstetrician, who had also participated in her prenatal care.2 At approximately 12:50 p.m., Gupta artificially ruptured Burgess‘s membranes. Shortly thereafter, according to Burgess, Gupta yelled to the nurse: “Emergency, prolapsed cord.”3 At that point, Burgess “knew that something was wrong” with the delivery. Preparations were begun for a cesarean section.
Approximately 21 minutes elapsed between the time that Gupta diagnosed the cord prolapse and the time Burgess was taken to emergency surgery. During the interim, Gupta was in and out of Burgess‘s room. According to Burgess, “When he would come back into the room, he would yell, ‘Breathe, breathe, because your baby ain‘t getting enough oxygen.‘”
Burgess was placed under general anesthesia for the cesarean section. She was told as she was wheeled out of the recovery room that “something” was wrong with her baby boy. She was given another sedative. The first time she recalls feeling distressed about Joseph‘s condition was several hours later after she awoke from the sedative.
Joseph was deprived of sufficient oxygen through his umbilical cord for approximately 44 minutes before his delivery. He suffered permanent brain and nervous systеm damage, allegedly as a result of the deprivation of oxygen. He was not released from Children‘s Hospital (where he was transferred for specialized treatment) until a month after his birth.
Joseph, Burgess and Joseph Moody (Moody), the father of Joseph, brought suit against Gupta and the hospital. In this suit, Burgess and Moody both sought recovery for emotional distress suffered as a result of the defendants’ negligence. Moody‘s claim was dismissed by the trial court for failure to comply with discovery requests and is no longer at issue.4 Joseph died during the course of the litigation, allegedly as the result of his injuries.
A wrongful death action was subsequently filed by Burgess and was consolidated with the original malpractice action.
Defendants brought a motion requesting summary adjudication that Burgess is not entitled to recover damages for emotional distress from the defendants. The defendants argued that Burgess did not contemporаneously observe Joseph‘s injury as required by this court in Thing v. La Chusa, supra, 48 Cal.3d 644 (hereafter Thing), for recovery in a “bystander” situation and was not a direct victim of Gupta‘s negligence pursuant to Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [167 Cal.Rptr. 831, 616 P.2d 813] (hereafter Molien). Relying primarily upon Thing, supra, the trial court granted the motion.
Burgess petitioned the Court of Appeal for a writ of mandate vacating the trial court‘s order. The appellate court granted the writ in a brief decision in which it held that Thing, supra, 48 Cal.3d 644, was not controlling under the facts presented by this case, because Burgess was a “direct victim” rather than a “bystander.”
Recognizing the unique relationship between mother and child during pregnancy and childbirth, we granted review in order to address the recurring question of whether a mother can recover damages for the emotional distress suffered as a result of a negligent delivery causing injury to her child.
II. DISCUSSION
A. Because Gupta Owed a Preexisting Duty of Care to Burgess, the Criteria for Recovery of Negligent Infliction of Emotional Distress Enunciated in Thing Are Not Controlling in This Case.
The law of nеgligent infliction of emotional distress in California is typically analyzed, as it was in this case, by reference to two “theories” of recovery: the “bystander” theory and the “direct victim” theory. In cases involving family relationships and medical treatment, confusion has reigned as to whether and under which “theory” plaintiffs may seek damages for negligently inflicted emotional distress.5
Because the use of the “direct victim” designation has tended to obscure, rather than illuminate, the relevant inquiry in cases such as the one at hand, we briefly turn our attention to the present state of the law in this area before proceeding to apply this law to the facts that confront us.
We have repeatedly recognized that “[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply. [][ ] Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability. [Citation.]” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [257 Cal.Rptr. 98, 770 P.2d 278], italics in the original, internal quotation marks omitted [hereafter Marlene F.]; accord, Christensen v. Superior Court (1991) 54 Cal.3d 868, 882, 884 [2 Cal.Rptr.2d 79, 820 P.2d 181] [hereafter Christensen].)
The distinction between the “bystander” and “direct victim” cases is found in the source of the duty owed by the defendant to the plaintiff. The “bystander” cases, commencing with Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912], and culminating in Thing, supra, 48 Cal.3d 644, address “the question of duty in circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another.” (Christensen, supra, 54 Cal.3d at p. 884.) These cases “all arise in the context of physical injury or emotional distress caused by the negligent conduct of a defendant with whom the plaintiff had no preexisting relationship, and to whom the defendant had not previously assumed a duty of care beyond that
Because in such cases the class of potential plaintiffs could be limitless, resulting in the imposition of liability out of all proportion to the culpability of the defendant, this court has circumscribed the class of bystanders to whom a defendant owes a duty to avoid negligently inflicting emotional distress. These limits are set forth in Thing as follows: “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.” (48 Cal.3d at p. 647.)6
In contrast, the label “direct victim” arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Marlene F., supra, 48 Cal.3d at p. 590.) In these cases, the limits set forth in Thing, supra, 48 Cal.3d 644, have no direct application. (Marlene F., supra, 48 Cal.3d at p. 589, fn. 4; Christensen, supra, 54 Cal.3d at pp. 890-891.) Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case.
Much of the confusion in applying rules for bystander and direct victim recovery to the facts of specific cases can be traced to this court‘s decision in Molien, which first used the “direct victim” label. In that case, we answered in the affirmative the question of whether, in the context of a negligence action, damages may be recovered for serious emotional distress unaccompanied by physical injury. (Molien, supra, 27 Cal.3d at pp. 927-931.)
In so holding, we found that a hospital and a doctor owed a duty directly to the husband of a patient, who had been diagnosed incorrectly by the doctor as having syphilis and had been told to so advise her husband in order that he could receive testing and, if necessary, treatment. (Molien, supra, 27 Cal.3d at p. 923.) We reasoned that the risk of harm to the husband was reasonably foreseeable and that the “alleged tortious conduct of the defendant was directed to him as well as to his wife.” (Id. at pp. 922-923.) Under such circumstances we deemed the husband to be a “direct victim” and found the criteria for bystander recovery not to be controlling. (Id. at p. 923.)
The broad language of the Molien decision, coupled with its perceived failure to establish criteria for characterizing a plaintiff as a “direct victim” rather than a “bystander,” has subjected Molien to criticism from various sources, including this court. (E.g., Thing, supra, 48 Cal.3d at pp. 658-664.) The great weight of this criticism has centered upon the perception that Molien introduced a new method for determining the existence of a duty, limited only by the concept of foreseeability. To the extent that Molien, supra, 27 Cal.3d 916, stands for this proposition, it should not be relied upon and its discussion of duty is limited to its facts. As recognized in Thing, “[I]t is clear that foreseeability of the injury alone is not a useful ‘guideline’ or a meaningful restriction on the scope of [an action for damages for negligently inflicted emotional distress.]” (48 Cal.3d at p. 663.)
Nevertheless, other principles derived from Molien, supra, 27 Cal.3d 916, are sound: (1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached. (Christensen, supra, 54 Cal.3d at pp. 890-891; Marlene F., supra, 48 Cal.3d at pp. 590-591.) In fact, it is this later principle which defines the phrase “direct victim.” That label signifies nothing more.
Gupta, however, has succumbed to the confusion in this area by failing to recognize that the distinction between bystander and direct victim cases is found in the source of the duty owed by the defendant to the plaintiff. Gupta argues, relying upon Ochoa v. Superior Court, supra, 39 Cal.3d 159 (hereafter Ochoa), that, when the emotional distress for which damages are claimed is “purely derivative” of the injury of another, the plaintiff may only recover such damages by satisfying the criteria for bystander recovery.
Gupta claims that Burgess‘s damages are “derivative” because he owed no duty of care to Burgess to avoid injuring her child. Therefore, she may recover for her emotional distress, if at all, only as a bystander. We disagree.
In Ochoa, the parents sought damages for the emotional distress that they suffered from witnessing the defendants’ failure to provide adequate medical
In contrast to the facts of Ochoa and Molien, we are presented in this case with a “traditional” plaintiff with a professional negligence cause of action. Gupta cannot and does not dispute that he owed a duty of care to Burgess arising from their physician-patient relationshiр. (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 776, p. 116 [“Liability for malpractice arises where there is a relationship of physician-patient between the plaintiff and the defendant doctor; the relationship gives rise to the duty of care.“].) Rather, Gupta contends that, while his alleged negligence resulting in injury to Joseph breached a duty of care owed to Joseph, it did not breach a duty of care owed to Burgess.7 In other words, Gupta claims that the scope of the duty of care owed to Burgess was limited to avoiding physical injury to her during her prenatal care and labor; it did not extend to avoiding injury to her fetus and the emotional distress that would result from such an injury. The origin of these mutually exclusive duties to Burgess and Joseph is apparently Gupta‘s unsupported assertion that Burgess and Joseph were two separate patients, because his actions could physically injure one and not the other.
In addition to the physical сonnection between a woman and her fetus, there is an emotional relationship as well. The birth of a child is a miraculous occasion which is almost always eagerly anticipated and which is invested with hopes, dreams, anxiety, and fears. In our society a woman often elects to forego general anesthesia or even any anesthesia, which could ease or erase the pain of labor, because she is concerned for the well-being of her child and she anticipates that her conscious participation in and observance of the birth of her child will be a wonderful and joyous occasion. An obstetrician, who must discuss the decision regarding the use of anesthesia with the patient, surely recognizes the emotionally charged nature of pregnancy and childbirth and the concern of the pregnant woman for her future child‘s well-being. The obstetriсian certainly knows that even when a woman chooses to or must undergo general anesthesia during delivery, the receiving of her child into her arms for the first time is eagerly anticipated as one of the most joyous occasions of the patient‘s lifetime. It is apparent to us, as it must be to an obstetrician, that for these reasons, the mother‘s emotional well-being and the health of the child are inextricably intertwined.
It is in light of both these physical and emotional realities that the obstetrician and the pregnant woman enter into a physician-patient relationship. It cannot be gainsaid that both parties understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother.
Thus, as the Court of Appeal correctly determined in this case, the failure by Burgess to satisfy the criteria for recovery under
As in Marlene F., once the scope of the duty of care assumed by Gupta to Burgess is understood, Burgess‘s claim for emotional distress damages may simply be viewed as an ordinary professional malpractice claim, which seeks as an element of damage compensation for her serious emotional distress. The elements of a claim for professional negligence incorporate a specific standard of care into the elements of a negligence claim. “The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional‘s negligence. [Citations.]” (Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433].) A plaintiff in a case of medical malpractice may recover damages for emotional distress. (See Marlene F., supra, 48 Cal.3d at pp. 591, fn. 6 (lead opn. of Arguelles, J.), 599 (conc. opn. of Eagleson, J.); Molien, supra, 27 Cal.3d at pp. 930-931; 2 Louisell & Williams, Medical Malpractice, supra, at ¶ 18.11.)
Moreover, contrary to Gupta‘s assertions, the imposition of liability in this case would not be an unprecedented extension of the law. We note that our holding has been foreshadowed by several decisions of our Courts of Appeal. Although relying upon differing theories to support claims for damages for emotional distress suffered by mothers whose children were harmed or died as a result of obstetrical malpractice, the majority of our appellate courts, which have considered the issue, have ruled in favor of a
As the majority of lower courts have recognized, Thing, supra, 48 Cal.3d 644, does not control recovery by a mother for emotional distress suffered as a result of the negligent injury of her child during labor and delivery. Under the facts of this case, Burgess is not a “bystander” for purposes of bringing a claim for compensation for damages for her serious emotional distress. Burgess is permitted to recover these damages as a result of the breach of the duty of care arising from the physician-patient relationship between Gupta and Burgess. Gupta‘s negligent breach of this duty is sufficient to satisfy the elements of а claim alleged for professional malpractice on Burgess‘s behalf.
B. Lack of Physical Injury Does Not Defeat Burgess‘s Claim.
Gupta also seeks to win summary adjudication by negating the damage element of Burgess‘s claim. To accomplish this end, Gupta contends that Burgess has not alleged that she suffered physical injury.
Gupta‘s argument is unpersuasive. First, Gupta overlooks the fact that Burgess has pled injury to her “nervous system and person.” Gupta
Moreover, even if Burgess had failed to allege physical injuries, physical injury is not a prerequisite for recovering damagеs for serious emotional distress, especially when, as here, there exists a “guarantee of genuineness in the circumstances of the case.” (Molien, supra, 27 Cal.3d at pp. 928-930, citation and internal quotation marks omitted.) Serious emotional distress itself satisfies the damage element of Burgess‘s cause of action.
C. Public Policy Considerations Do Not Support the Drastic Limitation for Which Gupta Argues.
Gupta further urges that Burgess must be denied recovery for damages for the emotional distress that she has suffered on various public policy grounds. We do not find, however, that public policy considerations justify denying Burgess the right to recover damages for the serious emotional distress that she suffered as a result of Gupta‘s alleged breach of duty arising out of their physician-patient relationship.
Our starting point in determining liability for negligence is the rule set forth in
We also have previously recognized that several factors should be considered in determining the existence of a duty. The factors include: “the foreseeability of harm to the plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendant‘s conduct and the injury suffered, the moral blame attachеd to the defendant‘s conduct, the policy of preventing future harm, the extent of the burden to the
Although in this case the existence of the applicable duty is clearly established by virtue of the physician-patient relationship between Gupta and Burgess (Marlene F., supra, 48 Cal.3d at pp. 590-591), the considerations set forth above provide a framework for our review of Gupta‘s policy arguments against imposing liability. Analyzing these principles, we conclude that the recognition of liability in this case is fully consistent with them and that an exception to liability is not clearly supported by public policy.
1. Foreseeability and certainty of mother‘s injury in labor and delivery cases.
It cannot be disputed that a negligent dеlivery of the type alleged by Burgess, resulting in permanent injury to her child, will foreseeably cause a mother serious emotional distress. This fact is patently obvious. (See, ante, at p. 1076.) Indeed, obstetricians are taught to consider the mother‘s concern for her fetus from the beginning of their studies. (Cunningham et al., Williams Obstetrics, supra, at p. 307 [“The pregnant woman very often approaches labor with two major fears: ‘Will my baby be all right?’ and ‘Will labor be very painful?’ Her concerns should also be uppermost in the minds of everyone who participates in caring for the mother and fetus.“].)
During pregnancy, the mother and child are a unique physical unit. The welfare of each is “intertwined and inseparable.” (Nocon, Physicians and Maternal-Fetal Conflicts: Duties, Rights and Responsibilities (1990-1991) 5 J. of Law and Health 1, 15.) Under such circumstances, it cannot be denied that a mother, who carries her fetus to term and begins labor, has formed a sufficiently close bond with her fetus that injury to the fetus during labor and delivery will cause her severe emotional distress. Nor can it be denied that this distress is foreseeable to her obstetrician. (See, ante, at p. 1076.) As one of our appellate courts has recognized: “It is patently clear that a mother forms a sufficiently close relationship with her fetus during pregnancy so that its stillbirth [or injury] will foreseeably cause her severe emotional distress. Where the stillbirth [or injury] results from medical malpractice rather than from natural and unavoidable causes the loss is all the more poignant and should be legally redressable.” (Johnson v. Superior Court, supra, 123 Cal.App.3d at p. 1007.)
Any medical care for the fetus, including assistance in its delivery, necessarily involves the mother‘s consent and bodily participation. An obstetrician‘s negligent delivery of a child, resulting in the child‘s injury, is closely (even inextricably) rеlated to any emotional distress incurred by the mother upon her realization of the injury to her child. (See, ante, at p. 1076.)
3. Moral blame.
“[T]he legal standard of care required by doctors is the standard of practice required by their own profession.” (Weiler, Medical Malpractice on Trial (1991) p. 19 [hereafter Weiler].) “The courts require only that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. [Citations.]” (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [91 Cal.Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717].) Thus, liability is not found, and the label of malpractice is not placed upon a physician‘s actions, unless “some deviation by the [physician] from the standard of care that his peers consider appropriate in the situation under review” is proven. (Weiler, supra, at p. 25.)
Whether the negligent act is the result of a momentary lapsе of concentration or gross disregard for the health of the patient, in order to prevail on a claim for medical malpractice, a plaintiff must convince the trier of fact that the physician‘s peers would consider his act to be blameworthy. Under such circumstances, we cannot conclude that this factor supports a public policy limitation of a physician‘s liability to his patient.
4. Prevention of future harm.
One of the purposes of tort law is to deter future harm. (See generally, Bell, Legislative Intrusions into the Common Law of Medical Malpractice: Thoughts about the Deterrent Effect of Tort Liability (1984) 35 Syracuse L. Rev. 939 and articles cited therein [hereafter Bell, Legislative Intrusions].) In the area of birth injury, it is possible that the child‘s cause of action for his or her injuries may be an adequate deterrent of future similar harm. (Cf. Turpin v. Sortini (1982) 31 Cal.3d 220, 239 [182 Cal.Rptr. 337, 643 P.2d 954] [recognizing that recovery of out-of-pocket expеnses, rather than general damages, could have sufficient deterrent effect in a “wrongful life” case]; Bell, Legislative Intrusions, supra, at pp. 975-990 [advancing the theory that the deterrent effect of malpractice suits derives from psychological factors, rather than financial sanctions].)
First, we are reluctant to provide any incentives unrelated to the standard of care that could, even unconsciously, influence choices made by a physician regarding how care should be provided during labor and delivery. Relegating delivering mothers to the status of “bystanders” for purposes of recovering damages for their emotional distress could create such incentives. Under the bystander criteria, if the mother is rendered incapable of “observ[ing] both the defendant‘s conduct and the resulting injury” and being “aware at the time that the conduct is causing the injury,” then the mother cannot recover. (Thing, supra, 48 Cal.3d at p. 661.) Thus, an alert mother would pose a higher risk of a successful lawsuit for an obstetrician than a heavily or completely sedated mother. The incentives established by such a rule, therefore, could undermine advances in obstetrical care related to reducing the use during labor and delivery of sedative and anesthetic drugs that are potentially damaging to the fetus. (See Cunningham et al., Williams Obstetrics, supra, pp. 353, 355.)
Second, the failure to find a duty of care owed to the mother to avoid injuring the fetus would be inconsistent with prior decisions permitting a mother to state a claim against an obstetrician whose negligence results in stillbirth of, rather than injury to, the child. (Justus v. Atchison (1977) 19 Cal.3d 564, 581, fn. 15 [139 Cal.Rptr. 97, 565 P.2d 122]; Johnson v. Superior Court, supra, 123 Cal.App.3d at p. 1007.) Such a claim can only be based upon the recognition that the obstetrician owes a duty to the mother relating to the standard of medical care received by both her and her fetus. If no such duty is owed, then no cause of action lies. (Budd v. Nixen, supra, 6 Cal.3d at p. 200 [setting forth elements of a professional malpractice claim].) If a contrary rule were to be adopted, it is possible that a doctor could escape all civil liability for negligence which caused a stillbirth.9
5. Consequences of the imposition of liability.
We are, of course, aware of what has been termed a “crisis” in the availability and cost of medical malpractice insurance. (See, e.g., American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 370-371 [204
In light of these observations, we realize that the imposition of liability in cases suсh as the one at hand may impose certain societal costs. For several reasons, however, we believe that the impact of our decision recognizing Burgess‘s claim against Gupta for damages for emotional distress will not unduly burden the community or health care providers in the field of obstetrics or result in the imposition of damages disproportionate to fault.
First, our Legislature has taken action to alleviate the “crisis” in medical malpractice liability and insurance by enacting the Medical Injury Compensation Reform Act of 1975 (Stats. 1975, chs. 1, 2, pp. 3949-4007) (hereafter MICRA). As a result of MICRA, the amount of “noneconomic damages,” such as damages for emotional distress, that may be recovered in an action arising from the professional negligence of a health care provider is capped at $250,000. (
Second, MICRA has established a restrictive statute of limitations for medical malpractice claims brought by adults. (
Third, the class of potential plaintiffs in these cases is clearly limited. The only potential plaintiffs are pregnant women with whom the defendant has established a physician-patient relationship. Contrary to Gupta‘s assertions, there is no possibility, much less a specter, of unlimited liability presented by these unique cases.
Finally, we concur with Gupta that Burgess‘s potential damages for her emotional distress are limited by the public policy concerns supporting this court‘s decision to prohibit claims for loss of filial consortium. However, we reject Gupta‘s argument that Burgess must be completely barred from recovering damages for her emotional distress because those damages are essentially coextensive with damages that are properly asserted in a claim for loss of filial consortium.
It is well established in this state that parents may not recover damages for loss of filial consortium. (Baxter v. Superior Court (1977) 19 Cal.3d 461 [138 Cal.Rptr. 315, 563 P.2d 871].) Reasons of public policy explain why such a cause of action is not recognized, including: “[t]he intangible character of the loss, which can never really be compensated by money damages; the difficulty of measuring damages; the dangers of double recovery of multiple claims and of extensive liability. . . .” (Id. at p. 464.)
We are not persuaded, however, that this rule completely bars all of the damages for emotional distress that Burgess might have suffered. While some portion of Burgess‘s emotional distress may have arisen from her loss of Joseph‘s consortium, other portions of her emotional distress may have separate, distinct origins that would not subject damages for these portions of her emotional distress to a bar mandated by the policy concerns underlying the prohibition of thе loss of filial consortium claim. Thus, we hold that damages arising from loss of Joseph‘s affection, society, companionship, love and disruption of Burgess‘s “normal” routine of life to care for Joseph cannot be recovered by Burgess no matter how her claim for these damages is denominated. (Baxter v. Superior Court, supra, 19 Cal.3d at p. 466; Martinez v. County of Los Angeles, supra, 186 Cal.App.3d at pp. 893-895.) We believe that this limitation on recovery eliminates the possibility of duplicative recovery by Burgess for damages which may be recovered by her child. We further hold to the extent, however, that Burgess‘s emotional distress arose from the “abnormal event” of participating in a negligent delivery and reacting to the unexpected outcome of her pregnancy with
We trust the ability of the trial courts to stringently enforce the limitation on damages in cases of this type through appropriate evidentiary rulings and jury instructions.
III. DISPOSITION
For the reasons set forth herein, we hold that Burgess is not required to satisfy the criteria for recovery as a bystander and may state a claim for damages for serious emotional distress arising from the negligent delivery of her child. Burgess‘s recovery, however, may not include damages for emotional distress arising from loss of Joseph‘s affection, society, companionship, love, and disruption of the “normal” routine of life to care for Joseph, but rather is limited to damages for her emotional distress arising from the “abnormal event” оf participating in a negligent delivery and reacting to the tragic outcome with fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, physical pain, or other similar distress.
Therefore, the judgment of the Court of Appeal is modified to direct the superior court, in addition to reversing its order of summary adjudication, to enter an order in accordance with the views expressed herein.
Lucas, C. J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.
MOSK, J., Concurring.—I concur in the holding of the majority opinion and in general in its rationale.
However, I cannot acquiesce in the majority‘s gratuitous limitation of our decision in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [167 Cal.Rptr. 167, 616 P.2d 813]. The majority mount unnecessary and uncalled-for criticism of Molien, copied largely from the misguided analysis of Molien in the majority opinion in Thing v. La Chusa (1989) 48 Cal.3d 644, 658-660
Compounding the error, the majority assert there is a “perception” that Molien introduced a new method for determining duty, “limited only by the concept of foreseeability“; and the majority gratuitously conclude, “To the extent that Molien . . . stands for this proposition, it should not be relied upon and its discussion of duty is limited to its facts.” (Maj. opn., ante, p. 1074.) But Molien does not “stand” for any such proposition, and the majority‘s proposed limitation of Molien thus collapses in a legal vacuum.
Elsewhere in their opinion the majority cite Thing with apparent approval for several other propositions. I cannot join in giving that decision any weight at all: in my view it was a judicial aberration. Because Thing is not actually in point—it was a “bystander” case, not a “direct victim” case—I need not reiterate here the defects in the Thing majority opinion discussed at length in my dissent (48 Cal.3d at p. 677) and that of Justice Broussard (id. at p. 682). I will recall only my observation in Thing that in disregard of the principle of stare decisis the majority there proceeded to “recite a monotonous inventory of cases with which they find fault. For the past three decades apparently all the courts in tort cases have been out of step except the current majority.” (48 Cal.3d at p. 677, fn. omitted.) An opinion displaying the judicial arrogance of the Thing majority does not merit citation as authority.
Nevertheless, the majority here manage to recoup by recognizing the “sound” principle of Molien that “a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached.” (Maj. opn., ante, p. 1074.) Here the preexisting relationship between defendant and plaintiff—i.e., the relationship of obstetrician and patient—gave rise to a duty of care that defendant owed both to plaintiff and to the child she was carrying. And as the majority correctly hold, it is plainly foreseeable that a negligent delivery resulting in severe permanent injuries to the child will cause its mother serious emotional distress, and hence result in liability on this theory. Indeed, that was the point of Justice Broussard‘s dissent in Thing, supra, 48 Cal.3d at page 682: he maintained, very simply, that “foreseeability and duty determine liability . . . . There is no reason why these general rules of tort law should not apply to negligent infliction of emotional distress actions.”