Opinion
B163375.
10-30-2003
THOMAS R. ADAMS, JR., ET AL., Plaintiffs and Appellants, v. JAMES A CAVINS, Defendant and Respondent.
Ellison & Hinkle and David R. Ellison for Plaintiffs and Appellants. Bauer, Harris, Clinkenbeard & Ramsey, Marvin A. Bauer and Lesley E. Cunningham for Defendant and Respondent.
In this case, we must decide whether a wife whose husband had been prescribed medication that affected his ability to produce sperm for an in vitro fertilization procedure may recover emotional distress damages from the doctor who allegedly negligently prescribed the medicine. We conclude that the wife cannot.
Plaintiff Gloria Adams appeals from a judgment following an order granting summary judgment in favor of her husbands doctor on her claim for negligent infliction of emotional distress. The trial court granted the motion on the ground that plaintiff could not establish that her husbands doctor owed her a duty of care under either the "direct victim" theory of recovery or the "bystander" theory of recovery. We agree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The material facts are undisputed. In April 2000, plaintiffs Thomas R. Adams and Gloria Adams (hereafter husband and wife) were scheduled for an in vitro fertilization procedure. To complete the procedure, husband had to provide a sperm specimen. After several failed attempts, husband was unable to do so. Two months before the procedure, husbands doctor, defendant James A. Cavins, M.D., had prescribed Flomax (tamsulosin hydrochloride) to treat husbands enlarged prostate. Husbands inability to provide the sperm was a side effect of Flomax, according to a consulting urologist affiliated with the infertility clinic where the procedure took place. In order to obtain the sperm specimen to complete the in vitro fertilization procedure, the consulting urologist performed a biopsy to retrieve the sperm directly from husbands testicles.
While waiting for the completion of the in vitro fertilization procedure, wife learned, and subsequently saw, that husband was unable to provide the sperm specimen. In addition, wife was in the room when the urologist explained what he believed to be the reason for husbands inability to provide the sperm, and when the urologist suggested and explained the biopsy procedure. Wife, however, did not witness the biopsy but saw husband in subsequent pain. Wife also was not present during husbands treatment by Dr. Cavins and was not Dr. Cavinss patient.
Husband and wife filed suit against Dr. Cavins for negligence. They alleged that Dr. Cavins "prescribed a medication, the use of which, as prescribed, resulted in personal injuries suffered by both plaintiffs." Wife later stated in discovery responses that her claim against Dr. Cavins was not for physical injuries but emotional ones.
After answering the complaint, Dr. Cavins moved for summary judgment on wifes claim for negligent infliction of emotional distress. Dr. Cavins argued that wife did not have a cause of action as a "direct victim" under Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 (Molien), because she was not his patient. Nor could wife proceed with her claim under a "bystander" theory of liability as set forth in Thing v. La Chusa (1989) 48 Cal.3d 644 (Thing), because wife did not contemporaneously observe Dr. Cavinss treatment, and she was not present during the testicular biopsy. The trial court agreed, concluding that under either theory, wife could not maintain a cause of action for negligent infliction of emotional distress. After the trial court granted the motion, wife appealed.
Husbands cause of action for negligence is still pending and was not the subject of this motion. Wife, however, erroneously included husband as an appellant in her notice of appeal.
In so ruling, the trial court stated: "Well, I dont doubt for a minute this was extraordinarily stressful, and I dont doubt for a minute that both Judge Adams and Mrs. Adams have endured a great deal of pain and suffering at the fact that their efforts at starting a family together were unsuccessful. [¶] I dont doubt for a minute that they suffered a tremendous amount of anxiety going through the procedures that they went through. The concern that I have is, I dont believe that a duty exists as a matter of law. [& para;] . . . [¶] So I need to be clear that, as the motion is framed, as it relates to the duty owed to Mrs. Adams, Im just — as I read the law, it hasnt gone as far as the plaintiffs want me to go. [¶] This may be the case that invites the appellate courts to move the law in this direction, but I dont believe that its appropriate for me to find a duty when I — when I cant see it in the published cases so far. [& para;] Its for this reason that I believe I have to grant the defense motion for summary judgment as it pertains to Mrs. Adams. Mrs. Adams only."
At the outset, we consider a procedural issue. The trial court did not sign a judgment of dismissal. The "Notice of Entry of Judgment" contained in the record is a notice of ruling and not a signed judgment. The signed "order" granting summary judgment is not an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(1).) The "Notice of Appeal," however, refers to the trial courts order as a "judgment of dismissal," and in the interests of justice and to avoid delay, we treat the appeal as from a judgment. (United Fidelity Life Ins. Co. v. Emert (1996) 49 Cal.App.4th 941, 944.)
CONTENTIONS
Wife contends that the trial courts order granting summary judgment on her claim for negligent infliction of emotional distress must be reversed because Dr. Cavins owed her a duty of care. Wife argues that Dr. Cavins owed her a duty as a direct victim of his alleged negligence as set forth in Molien, supra, 27 Cal.3d 916, because either he assumed a duty owed to her or a duty should be imposed on him as a matter of law. Wife also argues that Dr. Cavins owed her a duty as a bystander witness to his alleged negligence as set forth in Thing, supra, 48 Cal.3d 644.
DISCUSSION
1. Summary Judgment Standard of Review
A "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant satisfies this burden by showing "`one or more elements of the `cause of action in question `cannot be established, or that `there is a complete defense "to that cause of action. (Ibid.) "`Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Id. at p. 849.) On review of a summary judgment motion, we examine the record independently to determine whether disputed factual issues exist. (Kids Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) This is what we have done here and conclude that as a matter of law wife cannot maintain a cause of action against Dr. Cavins for negligent infliction of emotional distress.
2. The Trial Court Properly Granted Summary Judgment Because Husbands Doctor Did Not Owe Wife a Duty of Care
Wife contends that she endured emotional distress during and after the in vitro fertilization procedure caused by Dr. Cavins alleged negligence in prescribing Flomax to treat husbands enlarged prostate. It follows, according to wife, that she is entitled to recover damages for the emotional distress she suffered. We disagree. Wife cannot establish an essential element of her claim for negligent infliction of emotional distress, namely that Dr. Cavins owed her a duty of care.
Negligent infliction of emotional distress is not an independent tort but is regarded as the tort of negligence. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072 (Burgess); Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 (Marlene F.).) To recover damages, wife must establish the essential elements of a negligence cause of action, that is, duty, breach of duty, causation, and damages. (Burgess, supra, 2 Cal.4th at p. 1072; see also Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129 (Huggins).)
Whether wife can establish that Dr. Cavins owed her a duty is a question of law. (Burgess, supra, 2 Cal.4th at p. 1072.) The duty element of a negligent infliction of emotional distress claim has evolved into three distinct theories, two of which are relevant here. Under the first, the direct victim theory, damages are recoverable from a breach of a duty owed the plaintiff that (1) is assumed by the defendant, (2) is imposed on the defendant as a matter of law, or (3) arises out of a relationship between the two. (Marlene F., supra, 48 Cal.3d at pp. 589-590; see also Molien, supra, 27 Cal.3d at pp. 922-923.)
There is a third category of "exposure" in which plaintiffs have not suffered physical injury but claim emotional distress from fear of contracting a disease because of their exposure due to defendants negligence. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 997.)
In contrast, the second theory, bystander liability, "is premised upon a defendants violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another." (Burgess, supra, 2 Cal.4th at p. 1073.) Because the class of people could be potentially limitless, recovery is limited only if the plaintiff (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event and is then aware that it is causing injury, and (3) suffers emotional distress beyond that which would be anticipated in a disinterested witness. (Thing, supra, 48 Cal.3d at p. 647; Burgess, supra, 2 Cal.4th at p. 1073.)
a. Wife Was Not a Direct Victim of Husbands Doctors Alleged Negligence
Wife claims that she is a direct victim of Dr. Cavinss alleged negligence because he assumed a duty to her when he treated her husband. Thus, according to wife, her situation is no different than that of the husband in Molien, supra, 27 Cal.3d 916, whose wife received negligent treatment. We are not persuaded.
In Molien, our Supreme Court held that a defendant hospital and doctor owed a duty directly to the husband of a patient who had been misdiagnosed with syphilis, and had been told to advise her husband so that he could be tested, and treated, if necessary. (27 Cal.3d at pp. 919-920, 923.) In finding the existence of a duty, the court reasoned that because the risk of harm to the husband was foreseeable, and the doctors negligence was directed at both the husband and the wife, the husband was a direct victim. (Id. at p. 923.)
In Molien, the husband was a direct victim of doctors negligence because the doctor affirmatively directed the wife to tell her husband about the syphilis diagnosis. As Marlene F., supra, 48 Cal.3d at p. 590, explains, the holding in Molien is based upon the wifes doctors assumption of a duty to convey accurate information to the husband. (See also Huggins, supra, 6 Cal.4th at p. 130 [duty in Molien arose because the doctor directed his patient, the wife, to advise the plaintiff husband of the diagnosis].) Thus, although the husband in Molien was not a patient, the wifes doctor owed him a duty of care because the doctor acted as if the husband were a patient in rendering care to his wife.
The Supreme Court in Huggins, supra, 6 Cal. 4th 120, clarified Molien, holding that the scope of the duty owed is limited to the negligent care providers patient and not to those who suffer a reaction to the negligent care. (Id. at pp. 130-133.) In Huggins, the court concluded that parents of a two-month-old infant could not recover for emotional distress caused from injuries to their child when a pharmacist miswrote instructions for a prescription, resulting in their infant receiving five times the dosage prescribed by the childs doctor. (Id. at p. 133.) In so ruling, the court concluded that under the direct victim theory, the plaintiff must himself or herself be a patient of the defendant in order to establish a duty on the part of the health care provider. (Ibid. See also Id. at p. 131 ["When the plaintiff is not the defendants patient . . . `[c]ourts have not extended the Molien direct-victim cause of action to emotional distress which is derived solely from a reaction to anothers injury [citation]."]; Ochoa v. Superior Court (1985) 39 Cal.3d 159, 172-173 [parents of injured son denied medical treatment could not pursue a direct-victim claim]; Klein v. Childrens Hospital Medical Center (1996) 46 Cal.App.4th 889, 895, 896-899 [parents of a child who was misdiagnosed as having terminal cancer could not recover under "direct victim" theory].)
Although Huggins dealt with the recovery of a parent for injury to a child, it controls the outcome of this case. (6 Cal.4th at p. 131.) Wife, like the parents in Huggins, seeks damages for emotional distress caused by a reaction to anothers injury. While wife may have been affected by husbands allegedly negligent care, as were the parents of the two-month old infant in Huggins who administered the overdose of medication to their child, she cannot recover for damages because she was not Dr. Cavinss patient.
We reject wifes argument that the husband and wife relationship should be distinguished from that of other familial relationships because the care of husband and wife are inextricably intertwined when the couple is attempting to conceive a child. This is not a case where Dr. Cavins was treating husband and wife for infertility. Husband was Dr. Cavinss patient and was being treated for an unrelated medical condition. His treatment did not directly affect wifes physical health, in the same way, for example, as the treatment of husband and wife in Molien, supra, 27 Cal.3d at p. 919 . Nor is this a case, like that of a pregnant woman and her unborn child, where treatment of one affects the health and viability of the other. (Burgess, supra, 2 Cal.4th at pp. 1077-1078.) Indeed, wifes case is no different than those cases rejecting recovery by the spouse for misdiagnosis or negligent treatment of their husband or wife. (See, e.g., Smith v. Pust (1993) 19 Cal.App.4th 263, 273 [husband whose wife had sexual relationship with her therapist was not a direct victim of therapists professional negligence]; Kossel v. Superior Court (1986) 186 Cal.App.3d 1060, 1067 [wife could not recover as a direct victim when she first learned of a favorable but erroneous diagnosis regarding her spouses physical condition then learned he had a fatal illness].) Thus, Dr. Cavins did not assume a duty of care owed to wife.
There is no merit to wifes next argument that Dr. Cavins owed her a duty as a matter of law. (Marlene F., supra, 48 Cal.3d at p. 590.) Wife argues that it is foreseeable that husbands treatment would affect the couples ability to conceive a child. Foreseeability alone is not sufficient to impose a duty of care. As our Supreme Court has repeatedly held, the existence of a legal duty is dependent upon multiple factors in addition to foreseeability, including "the degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendants conduct and the injury suffered, the moral blame attached to defendants conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Burgess, supra, 2 Cal.4th at pp. 1079-1080.) An analysis of these seven factors militates against imposing a duty as a matter of law on Dr. Cavins.
First, wife argues that it is foreseeable that a "husbands incapacity to ejaculate will prevent the wife from becoming pregnant, and would certainly adversely impact [in vitro fertilization] procedures." While this may be true, the issue here is the foreseeability that Dr. Cavinss treatment might affect wife. Even though the medical treatment here was not related to the couples attempt to conceive a child through the in vitro fertilization procedure, we can foresee that the husbands medical care might affect wife. But foreseeability is not dispositive.
Second, the certainty that wife suffered injury is questionable. It is understandable that wife suffered depression and other psychological symptoms when the in vitro fertilization procedure failed, but it does not follow that those injuries arose from Dr. Cavinss treatment of husband. While it is true that husband had difficulty providing a sperm specimen on the date of the procedure, it is not conclusive that he was experiencing a side effect from the medicine Dr. Cavins prescribed to treat husbands enlarged prostate. Therefore, unlike the treatment of a mother and child, the certainty of the injury to wife is something we do not have. (See Burgess, supra, 2 Cal.4th at pp. 1079-1080.)
The third factor, the closeness of connection between Dr. Cavinss conduct and the injury suffered, is problematic. Wife appears to contend that any medical care for husband necessarily involves wife in matters of procreation. This is not so. (See, e.g., Shin v. Kong (2000) 80 Cal.App.4th 498, 506 ["the Supreme Court has rejected appellants invitation to treat the two parties in a marriage as a single being[]"].) Dr. Cavins treated husband for an enlarged prostate, an unrelated medical condition. Moreover, even if Dr. Cavins knew that the couple were attempting to conceive a child, he apparently had no knowledge that husband was experiencing side effects from taking Flomax that would affect the in vitro fertilization procedure.
As for the fourth and fifth factor, neither weigh in favor of imposing a duty. We see no moral blame under these facts. Dr. Cavins prescribed medicine that successfully treated husbands enlarged prostate without any known side effects. It is doubtful whether this conduct would be considered blameworthy. Moreover, the policy of preventing future harm also weighs against imposing a duty. The certainty of harm to wife in this instance is virtually nonexistent.
The two remaining factors also militate against imposing a duty on Dr. Cavins. The burden on the defendant and the consequences to the community for imposing a duty to avoid emotional distress, and imposing liability for breach, weigh against the imposition of a broad duty on the doctor of a spouse to ensure his treatment will not affect the couples ability to conceive a child. Couples faced with infertility necessarily experience extreme emotional trauma when they cannot conceive a child. While we, like the trial court, have no doubt that husband and wife experienced pain when the in vitro fertilization procedure did not lead to a full-term pregnancy, we cannot hold husbands doctor liable for the emotional distress wife suffered. To do so would potentially expose all health care providers who treated the couple for unrelated health problems to liability because wife did not sustain the pregnancy. Of course no insurance is available to cover such a limitless risk. Thus, based on these factors, we find as a matter of law that Dr. Cavins did not owe a duty to wife.
b. Wifes Bystander Theory of Recovery Fails Because Wife was not Contemporaneously Aware of the Alleged Injury
Wife cannot satisfy the second requirement of Thing to proceed under the bystander theory against Dr. Cavins. (48 Cal.3d at pp. 667-668.) To meet this requirement, wife must show that she was present at the scene of the injury-producing event at the time it occurred and was then aware that it was causing injury to the victim. (Id. at p. 668, fn. omitted.) Wife contends that she was present at two injury-producing events sufficient to satisfy this requirement. First, she was present when husband could not produce the sperm specimen. Second, she was nearby when husband underwent the testicular biopsy. Neither event is sufficient to satisfy the second requirement under a bystander theory of liability because wife witnessed the results of the alleged negligence during the course of treatment, not the actual negligent medical care.
Wife satisfies the close relationship and the emotional distress factors. (Thing, supra, 48 Cal.3d at pp. 667-668.)
In Bird v. Saenz (2002) 28 Cal.4th 910 (Bird), our Supreme Court concluded that the second requirement of the Thing test did not permit recovery for unperceived medical errors during the course of treatment, as wife asserts here. (Id. at pp. 920-922.) In Bird, the plaintiffs were in the waiting room while their mother suffered injuries arising from a negligent operation. The Bird plaintiffs had no sensory perception whatsoever of the injury-producing event at the time it occurred and were not then aware that it caused injury to their mother. (Id. at p. 917.) Nevertheless, the Bird plaintiffs sought to recover, as wife does here, by redefining the injury-producing event from that of the operation to failure to diagnose and treat the injury while it was occurring. (Ibid.)
Based on the alleged injury, the Bird court concluded that the plaintiffs could not recover because at the time of the injury they did not know that their mothers diagnosis and subsequent care were inadequate. (28 Cal.4th at pp. 921-922.) In reaching that conclusion, the Supreme Court explained, "a rule permitting bystanders to sue for NIED on account of unperceived medical errors hidden in a course of treatment cannot be reconciled with Things requirement that the plaintiff be aware of the connection between the injury-producing event and the injury." (Id. at p. 921.)
Like the Bird plaintiffs, wife was not aware of the alleged medical errors in Dr. Cavinss treatment of husband until after the injury-producing events. Wife learned after husband could not provide the sperm specimen that he might have been suffering from a side effect of the medication Dr. Cavins prescribed to treat husbands enlarged prostate. At most, what wife observed was an emotionally stressful situation resulting from the alleged negligent care. Under these circumstances, Bird, supra, 28 Cal.4th at pp. 921-922, bars recovery because wife cannot show that she was contemporaneously aware of any error in her husbands medical treatment. Accordingly, wife cannot show that under the bystander theory of recovery Dr. Cavins owed her a duty of care.
Because wife cannot establish that Dr. Cavins owed her a duty of care, an essential element of her claim for negligent infliction of emotional distress, the trial court properly granted summary judgment. (Aguilar, supra, 25 Cal.4th at pp. 849-850 [standard of review]; Code Civ. Proc., § 437c, subd. (c).)
DISPOSITION
The judgment is affirmed. Respondent Dr. James A. Cavins is awarded costs on appeal.
We Concur: KITCHING, J, ALDRICH, J.