*1 Dist., B015574. Second Div. Seven. Oct. [No. 1986.] SR., al., MARTINEZ, et LAZARO Plaintiffs and Appellants, ANGELES, COUNTY OF LOS Defendant and Respondent.
Counsel Robert H. Sulnick for Plaintiffs and J. Jagiello Robert Hidalgo, Manuel Appellants. Bonne, Jones, O’Keefe,
Colman & von Mueller & Bolschwing, Bridges, Martin, Richland, Greines, Martin T. Stein & Stein and Coates Timothy for Defendant Respondent.
Opinion Martinez, Sr., LILLIE, P. J. Lazaro and Rosalba Martinez Plaintiffs from a dismissal entered them and in judgment of favor appeal against defendant order de County upon Los defendant’s Angeles sustaining the second of action murrer to and third causes of the first amended complaint leave to without amend.1
I Pleadings The minor and his sued the and two county medical physicians and This concerns the third appeal only cause malpractice negligence. The action of the of minor plaintiff. following (Alcorn which we the first amended as true. Anbro accept complaint, Inc. P.2d Engineering, 216].)
First Cause Action for medical brought first cause of action is one malpractice solely
The Martinez, Jr. It the following: Lazaro Rosalba alleges minor by plaintiff Martinez, Los Angeles the minor entered County/ pregnant plaintiff, where defendants Medical Center “so of Southern California University for, examined, cared treat- diagnosed, prognosed, and carelessly negligently and his mother . . . plaintiff, ed and on the and body person operated and plaintiff”; the injuries damage [minor] so as to proximately minor plaintiff sustained negligence, result of defendants’ that as a proximate other internal injuries; cerebral neurological damage, palsy, permanent be able to will never function result of said minor plaintiff that as a injuries, has sustained that minor plaintiff per- as a member of society; productive care, care, nursing for medical hospitalization, manent and special damages Martinez, Jr., appealing as an plaintiff party. Lazaro appeal notice of also identifies 1The Martinez, Jr., Lazaro apply plaintiff, order and do not minor judgment The trial court’s parents, minor’s appeal. Lazaro appeal is made on this argument and no him Martinez, Sr., parties multiple and the proper is as the case involves and Rosalba Martinez (Justus v. Atchison determined as entered leaves to be to them. judgment no issue 122].) 565 P.2d Cal.3d 568 [139 occupational psychological therapy, prosthetic appliances, physical, treatment; breached their that defendants fiduciary housekeeping to disclose to them their acts of and his mother by failing plaintiff 24, 1984, were they such that at no time prior September defendants or that such conduct was that negligent; aware of the conduct of asked the doctors her child was in the con- treating why Rosalba Martinez is, born,’ ‘“that’s the dition he and she was told way baby that the heart but did not know Minor why.” knew stopped defendants no further that to cover dictated up negligence, mother, on the no nurses notes were summary procedures employed her treatment the critical and the fetal during periods, prepared regarding lost; monitor was not maintained and hence that none of the strip properly informed or his mother or father that “the defendants child’s con- *4 dition was due to their conduct in improperly administering pitocin, Martinez, the condition of Rosalba improperly failing diagnose diabetic, test, as a an amniocentesis a improperly performing delaying ” Cesarean section until a in time after the fetal heart tones point disappeared. Second Cause Action action,
The cause of second asserted minor as well as by his parents, action, all of the in the first cause of incorporates allegations and further selection, review, in the and evaluation alleges negligence by county members, the other defendant staff which caused to minor injury The demurrer plaintiff. ruling to this cause of action is sustaining not here challenged.2 Action
Third Cause of of action The third cause for negligence brought minor’s solely by of the first and second causes of action. incorporates They that as result treatment of minor allege defendants, have been distress, “caused to suffer by they emotional anxiety, to conduct the [sic]”; and an normal routine inability activities of their life lives have been restructured in that their as totally following respects: coordination, lacks must attend the child to him they to avoid constantly opening brief does not propriety address the of the trial 2Appellants’ ruling court’s respect appeal the second action. While the notice of filed as to the order thereon, action, which included a dismissal of the judgment appellants’ second cause of impropriety ruling of such argue failure to constitutes an abandonment review thereof. (See Casualty Fidelity & Co. Wint 1185]; Security A.L.R.3d Nat. Bank P.2d Henderson 388].) 769 [140 him; to; administered must the child cries unless unceasingly they are confined to throughout night; they attend to his breathing problems church, home and cannot recreational or matters family participate the need to constant attention to the needs and demands of because of pay child; Rosalba Martinez is unable to attend to her their brain-damaged children, duties, to the needs of the other or to the obligations housework her marital due to the need to constant attention to minor pay Martinez, Sr., Rosalba and Lazaro further that their lives allege plaintiff. restructured, been and for the balance their normal life have totally span, in order to attend will be to restructure lives to the needs they required child, brain and retarded which retardation and damaged of their severely defendants’ brain was caused as result of damage negligence; distress, and mental have suffering emotional anxiety they experi- lives, for the balance of their natural enced and will experience they Martinez, housewife, that Rosalba damages; entitled to compensatory Martinez, Sr., musician, have been prevented attending Lazaro and have lost and will lose future thereby their occupations earnings earnings. to the and third causes of action demurred second asserted county Martinez, Sr., and Lazaro on the failed to state ground Rosalba entered causes of action. It is from the of dismissal the order judgment upon *5 that the demurrer without leave to amend they appeal. sustaining II Third Cause of Action (Negligence) Here, distress, the Martinez seek for emotional damages “to restructure their lives” to care for minor and for having plaintiff loss of future All of these to have earnings. personal damages resulted from the to care for the minor who necessity through of and retarded. defendants is brain damaged
“The of infliction of tort emotional distress is a variation of the tort of traditional elements of breach of negligence. duty, duty, causation, and Whether a defendant a of care owes damages apply. duty [¶] is a Its existence of law. question depends upon foreseeability risk and considerations for and weighing policy upon against imposition (1984) Process & Courier 162 liability.” (Slaughter Legal Service 1236, 189].) Dillon v. Legg Cal.Rptr. [209 Cal.2d 728 441 P.2d first a cause of recognized action for emotional to a distress caused the tortious parent by witnessing so, death of or to his/her child. In the court rule injury doing rejected safety his or her own personal fearful for be plaintiff that required defendant whether determining element in the chief order to recover. “Since risk, foreseeability is the or an obligation owes duty it is inherently case. Because in every will be of concern that factor prime must necessarily obligation such or duty with foreseeability intertwined (Dillon Legg, supra, basis.” only case-by-case adjudicated upon (1985) 39 Cal.3d 740; v. Superior accord Ochoa Cal.2d held that a mother 1].) the court In Dillon 703 P.2d could killed an automobile and witnessed her child struck who young sustained from she suffering an action pain bring physical that the legal requirements court found event. The shock of the fright (Dillon, supra, the facts alleged were met by “duty” “foreseeability” infinite otherwise however, “limit the 741); potentially in order to act,” 739) define and to (p. every would follow liability existed, the court of care whether to aid in guidelines ascertaining stated; as the following: such factors take into account “. . . the courts will contrasted of the accident as near the scene Whether was located the shock resulted (2) Whether from it. with one who was a distance away and contem from the sensory a direct emotional upon plaintiff impact accident, as contrasted learning observance of the poraneous and the (3) Whether plaintiff accident from others after its occurrence. related, an absence of any victim were as contrasted with closely 740-741.) (68 Cal.2d at or the a distant only relationship.” pp. presence have stated a cause action under Parent herein do not claim to plaintiffs Dillon, and have of the absence not done so because “the defendant’s conduct and emotional resulted from distress perceiving awareness the defendant’s conduct the child’s contemporaneous Court, (Ochoa v. lack thereof harm to the child.” or causing [was] *6 Indeed, in 170.) Cal.3d 29 of the first cause of 39 supra, paragraph action, reference into the cause of action for emo incorporated by parents’ distress, 24, 1984, “At time to no were they allege: prior September tional defendants, them, of and each the aware conduct of plaintiffs the harm suffered said or that said conduct was caused plaintiffs, neg ligent.”
Rather,
on Molien Kaiser Foundation
relying
Hospitals
P.2d, 813],
616
contend
parent
In the instant to take care restructuring distress suffer lives emotional and retarded child. do not claim their distress brain-damaged They have not conduct defendant. Courts extended be a result any emotional distress which derived action to is Molien direct-victim v. Royale In Convalescent Wiggins from a reaction another’s injury. solely 2], the court rejected Hospital Cal.App.3d under for emotional distress a cause action Molien wife’s assertion of when neg her husband suffered defendant injuries out of physical arising bed, of the husband’s safety hospital per failed to raise the rails ligently case, is not to fall. The court held: “In instant him mitting is derived to her solely Her emotional distress injuries ‘direct victim.’ contrast, Molien was conduct of the defendant tortious husband. By Furthermore, his . . Molien him as well as wife.’. directed ‘to plaintiff] [the where the nature of the mis liability tort complex presented question No a ‘direct victim.’ such conduct made problem [Citation.] 918; italics.) here.” original Similarly is presented Cal.App.3d 446], the (1986) 176 Barry Budavari v. be a victim” wife held out not to “direct of defendants’ negligence curable causing detect her husband’s cancer an lung early stage failing “ three later. The stated: lung years him cancer court [Respondents’ to die *7 husband; care ran to their their only patient, appellant’s breach of duty indirect, distress to the herself was appellant being product risk of any 853; at (176 to p. her husband’s illness.” Cal. original her reaction App.3d italics.) Court, she Superior supra, plaintiff alleged
In Ochoa defendants, authorities, refusal detention juvenile to the was an eyewitness son, to her ill was in medical attention to who provide necessary seriously defendants’ held as a witness both The court to custody. percipient child, defendants’ and the harm it inflicted on her she had a negligence action, but bystander Dillon cause of not a Molien cause of action: proper was, “In Molien defendant’s its nature directed both very at misdiagnosis wife tell the wife and the husband. The was asked to her husband of the contrast, submit tests. required the husband was here diagnosis By the defendants’ in the instant case was directed at the primarily decedent, Mrs. on Ochoa as a as the looking helpless bystander tragedy of her son’s demise unfolded before her. While she was a foreseeable plaintiff to whom the defendants owed a of care to our in duty pursuant holding Dillon, witness, the duty owed was owed to her as a not as a percipient 172-173.) victim direct of negligence.” (Pp. cases,
The instant falls within the of the above and can pleading purview be distinguished from those cases that have to assert a permitted parents Molien cause of action based on In to their child. Andalon v. injury of a Cal.App.3d parents child born with Down’s were Syndrome recover for emotional permitted resulting distress care and the negligent prenatal unwanted birth of such child. On mandate the court held that the proceedings legal propo sitions advanced defendant were not amenable to summary adjudication; however, court, dicta, in addressed the issue parents’ action for emotional this distress: “In case we both to be perceive direct victims Mrs. Andalón malpractice alleged. to the party contract with the defendant and no issue his advise her concerning is tendered at this Mr. mongolism stage of the action. Andalon’s interest in information on and advice this mirrors hers. receipt topic His is not derivative of Mrs. injury merely Andalon’s but flows from his role aas in the participant life of the marital and its reproductive couple contract, lawful choices. The tort from the duty arising between defendant Andalón, him, and Mrs. runs to not because of merely the foreseeability him, of emotional harm to but because of nexus between his significant interests ‘end and aim’ the contractual relationship.” 611; Martinez, omitted.) Sr., fn. Rosalba and Lazaro no facts allege that defendant’s showing conduct affected lawful in choices life as a married or reproductive otherwise couple affected the “end and aim” of a contractual between defendant and themselves.
The court which decided Andalon also wrote the recent opinion case of Newton Kaiser Hospital Cal. 3d 386 App. It analysis Andalon to find a applied action for
890]. infliction of emotional distress where of a born with baby permanent *8 arm, the caused and excessive allegedly unnecessary of
paralysis upper head during traction the claimed forceps vaginal delivery, to baby’s of direct victims the execution of the they negligent were doctor-patient for treatment and childbirth. The court prenatal agreed, relationship the that a of care arose from contract between defendant determined to in we analysis and the mother. We decline Newton as believe adopt it to be unwarranted extension Andalón and results in a boundless an of, who “contract” for emotional distress for liability parents delivery for, who a victim of medical or care a child becomes malpractice. to merely expand and Molien cases recover right Andalon distress in medical causes. The statement malpractice for emotional damages to both be direct victims in that “we perceive parents Andalon 611), is a (162 at that the p. recognition alleged” Cal.App.3d malpractice action had a medical defendant’s malpractice there parents and to Syndrome during pregnancy detect Down’s prop failure to “direct victim” Similarly, the mother that prospect. advise erly conduct in that defendant’s advice to offering Molien means analysis he informed of the so he could be diagnosis sure was by making plaintiff, and its created doctor-patient tested syphilis, apparently Newton, however, for emotional distress recovery attendant duties. Under does not conduct involve the fact that is despite permitted care, treatment, the fact to the parents, despite or advice rendering Dillon and Ochoa. We do not meet the requirements that the parents the limitations defined by from a substantial departure Newton as perceive our Court. Supreme (1984) v. Cooperman Cal.App.3d
In Bureau Adjustment Accounts to was held 881], victim” analysis the Molien “direct emotional distress suffered they who alleged invoked properly by parents that their incorrect diagnosis the defendant learning psychologist’s The court an brain syndrome. suffered from organic child two-year-old sustained a demurrer had held that the trial court Cooperman properly distress, but remanded the case cause of action for emotional parents’ that the particular an amend to give opportunity plead one and that was a syndrome diagnosed frightening serious incorrectly understood it as such and suffered distress. Cal.App.3d thereby Molien, 848.) the inaccurate Cooperman, diagnosis like entailed member family disease communication of that frightening diagnosis who foreseeably hearing would suffer emotional distress from diagnosis. cases, Unlike those the Martinez here do not conduct allege negligent nature its them to or shock. exposed fright In v. Cueto Sesma
court reversed in favor defendant because it found summary judgment *9 triable issues of fact with to a mother’s cause of action for emotional respect distress child, based on the death at birth of her where in her deposition she related her concern and she apprehension upon perceiving neglect room, from medical in the receiving labor as contrasted to personnel the care other were “Such a patients receiving. could perception legitimately be found a by to constitute ‘emotional jury distress’ as that term is defined by BAJI No. 12.72, as well as to give rise to an inference of neglect. [11] In the second place, grant on the second cause summary judgment of action was error because Mrs. Sesma’s emotional distress could have been in her sustained own as personally directly contrasted to right, sustained in her injury as a ‘bystander’ capacity mother dis prospective tressed at inflicted injury her unborn fetus.” upon at Cal.App.3d 114-115; omitted.) fn. pp. therein, Both Sesma and an earlier case cited 1002, 1007 Johnson v. Cal.App.3d that a mother’s emotional recognized distress from the death of her fetus or infant be recovered as an item of as of her may damages part of action for (Sesma, to herself. malpractice supra, 129 Cal.App.3d 115-116.) pp.
Plaintiff here fail to cause of action for parents allege medical mal any Andalón, practice their own Unlike the right. Sesma and Rosalba Martinez, Sr., and Lazara do not conduct on the allege defendant part that entails a foreseeable risk of harm to reasonably them. Despite in the allegations first cause of action that their child’s condition was due administered failure to improperly diagnose the mother as a pitocin, diabetic, test, an section, amniocentesis and a Cesarean improper delayed there is no that such conduct caused allegation any either Mrs. or Mr. Martinez. The of action not Molien cause is free of any pleading requirements. “Molien that the circumstances of the contemplates case will sufficiently pleaded genuineness the claim. ... support [¶] . . . The conclusion that the in Molien had stated a cause of action for emotional distress was based on sufficient finding of facts which could elicit serious emotional reasonably response. As the Molien court stated: ‘The examination of Mrs. Molien and the conduct therefrom are flowing verifiable actions objectively the defendants that elicited serious emotional in the foreseeably and hence responses serve as a measure claim for validity emotional distress. plaintiff’s (Accounts . . .’” Bureau v. Adjustment Cooperman, supra, 847-848.) at pp. at issue fails to conduct defendant to the pleading allege directed Rather,
Martinez that elicited serious emotional response. emotional distress and to arise from the anxiety and treatment of their minor son and an conduct by defendants inability the “normal” routine activities of their lives. also emotional They allege than with their arising injured
distress less “normal” relationship son, rela marital their parental has affected their *10 other here for what is children. Plaintiffs seek tionship recovery However, the in Baxter v. Superior loss filial consortium. essentially (1977) 315, and its Cal.3d 461 563 P.2d 19 Cal.Rptr. [138 871] Airlines, case, (1977) v. 19 441 Borer American Inc. Cal.3d companion 302, rejected 563 P.2d our Court respectively Cal.Rptr. Supreme [138 child, as by claims of loss for to a as well of consortium by parents in the Court noted Beater: “Our children for to a As injuries parent. . . . considerations
opinion Borer v. American Airlines explains policy have a cause of action that a child should not us to conclude impelled for fully loss of Those reasons for the most part consortium. parental apply to loss filial consortium. The of a claim for issue present parental loss, never by of the which can really compensated character intangible of double damages; dangers money damages; measuring difficulty of extensive these consider claims and recovery multiple liability—all 464.) ations Cal.3d to both cases.” apply similarly action While oral that the third cause of not on conceding argument distress, did not state a for infliction of emotional cause of action plaintiffs’ compel counsel resorted to an the facts argument for creation of a new cause of action to “restructuring compensate or in their lives.” he knew of no in California authority He acknowledged action,” other but because of any to such a “cause jurisdiction support urged defendant’s negligence, thrust hardship upon parent plaintiffs by alleged. this court to extend the damage defendant’s liability encompass to circumvent way We decline the invitation it to be another just for appears articulated our for emotional distress requirements recovery 68 Cal.2d supra, Court in that of the law from Dillon v. Supreme Legg, area Court, 159, 728 to Ochoa and to recover v. Cal.3d supra, 39 minor the care and to the needs and demands damages attention in his first which are minor duplicative damages sought by care, and other action for nursing therapy, housekeeping minor care. These are recoverable extraordinary damages precisely (See on his for his care. alleviate the financial and other burdens 643 (1982) v. 238-239 Sortini Turpin [182 528].) 954]; P.2d P.2d Shriver Silva demurrer, the did not seek Martinezes In their to defendant’s opposition action, do that the nor contend here leave to amend the third cause amend an abuse of discretion. failure to them leave to grant its discretion on that the trial court abused burden is demonstrate plaintiffs amend, leave in what manner they demurrer without sustaining (Goodman Cal.3d Kennedy can amend their complaint. 375, 556 737].) P.2d The court sustained properly the demurrer to the third cause of action without leave to amend.
Disposition The judgment is affirmed. J., concurred.
Thompson,
JOHNSON, J.
in the
in this case. Under the
concur
judgment
present
I
*11
state of
causes of action
judicial
several
discussed in
interpretations
However,
the
the
sustained.
I
opinion,
demurrer was properly
respectfully
the
its
request
California
Court to reconsider
of one of
Supreme
rejection
those causes of
action. That one is the cause
action for loss of filial
(1977)
consortium the court refused
in Baxter v.
Court
to recognize
I shall not belabor the reasons. are similar to those They urged eloquently (Nix Justice Pauline Hanson in a recent from the Fifth District request (1985) Line Products Co. Cal.Rptr. [216 Preformed 581]) that the Court reconsider its of a cause of action Supreme rejection for have loss of consortium.1 also been stated well in Justice parental They Mosk’s dissent in Baxter. the case for for allowing loss Although recovery more parental consortium be somewhat than the case for may persuasive consortium, for loss I either as far more allowing recovery regard filial than the rationale the action for compelling existing supporting infliction of emotional distress. The the suffer injuries plaintiffs substantive, are more more difficult to and more feign, readily quantified than shock of a horrible accident compensated momentary witnessing or disease, the insult of told one has a loathsome or the mistakenly being like. If instant case underscores the com- problem. believed, are to be
plaint
the defendants’
these
negligence deprived
of a
normal child and all the
term
healthy,
long
satisfactions that would
fully
financial,
mean and instead left them with the
term
long
physical,
emotional burdens of
child. These are the
sorts
raising handicapped
very
action is
injuries
“loss of consortium”
How-
designed
compensate.
recognize
Supreme
1The California
refused to
a cause of action for
parental
loss of
Airlines,
consortium in a decision filed at the same time as Borer v. American
Inc.
years
Appellants’ petition Mosk, J., Low, J.,* was of the therein. January participated 1987. that the should opinion petition granted. *12 503, 40 2See Court Butcher
A.L.R.4th 539]. an (Cal.App.), hearing Elden Sheldon Supreme granted 3The California cohabitant to an unmarried rejected a loss of consortium opinion which action for (L.A. 1985.) Apr. of an accident victim. *Assigned by Acting Chairperson the Judicial Council.