Opinion
Review Granted Aug. 18, 1988.
Previously published at 200 Cal.App.3d 1121
Bolling, Walter & Gawthrop, George E. Murphy and T.D. Bolling, Jr., Sacramento, for petitioners.
No appearance for Respondent.
Rust, Armenis & Schwartz, and Ronald R. Lamb, Sacramento, Craddick, Candland & Conti and D. Stuart Candland, Danville, Weintraub Genshlea Hardy Erich & Brown, John Quincy Brown, Jr., Sacramento, and Alexander O. Lichtner, Bakersfield, Wilke, Fleury, Hoffelt, Gould & Birney, Scott L. Gassaway and Anita S. Marmaduke, Sacramento, for real parties in interest.
BLEASE, Acting Presiding Justice.
In this case, which arises on demurrer, we hold that parents have a claim, under Code of Civil Procedure section 376 (hereafter section 376), for damages for serious emotional distress to themselves which naturally ensues from the burdens imposed upon them to care for their minor child who has suffered severe and permanent brain damage by reason of the malpractice of physicians and that the Marchands have set forth sufficient facts to permit them to amend their pleading to bring their claim within this rule.
As we shall explain in detail, section 376 provides that the parents of a minor child may maintain an action for damages which they have sustained arising from an injury to their child caused by the "wrongful act or neglect of another." Neglect includes medical malpractice, here occurring in the course of the alleged negligent performance of a contract between Diane and Roderick Marchand and the defendants, which impliedly warrants defendants' professional competency in rendering medical care to the Marchands' daughter, Stacy, a minor.
Under section 376 the Marchands may recover damages to themselves which "under all of the circumstances of the case may be just." This provision imports a common law measure of damages. Under the common law, damages for serious emotional distress may be recovered inter alia when that harm "naturally ensues" from acts which invade an interest protected by an established duty in tort. Section 376 establishes such a duty. The interest protected by that duty is the interest of parents in not being burdened with an injured minor child who must be cared for pursuant to a duty imposed upon them by law. Serious emotional distress in the parents of the kind which naturally occurs in normally constituted parents in fulfilling that duty of care "naturally ensues" from the negligent acts which injure the child. In such cases the tortfeasor is liable for damages to compensate for such harm to the parents.
The Marchands' complaint, though defective because of generality, lends itself to amendment to state such a claim. The count which could be the vehicle for such an amendment has been dismissed pursuant to demurrers granted without leave to amend. The Marchands should be permitted to amend their complaint to bring this case within the law set forth above. Accordingly, we will grant a peremptory writ of mandate directing that the trial court set aside its order granting the demurrers without leave to amend and that it grant the Marchands leave to amend their pleading.
FACTS
The plaintiffs are the parents of Stacy Marchand, a minor. The defendants are Sutter Community Hospital, Sutter Memorial Hospital and Drs. Blaine, Achtel, Junod, Harlan, and Juris. The disputed second count of the second amended complaint alleges that plaintiffs "employed" the defendant doctors "to care, treat and diagnose" their minor child, Stacy. At approximately 3 p.m. on March 4, 1982, she was admitted to Roseville Community Hospital for diagnosis and treatment of her illness. At about 5 p.m. on that date, she was transferred to Sutter Memorial Hospital. At 6 p.m. Stacy suddenly underwent a respiratory and/or cardiac arrest as a result of the negligent examination and diagnosis of her condition and negligent care and treatment she received from defendants. Plaintiffs were present and personally observed the symptoms of deterioration of Stacy's physical condition during this traumatic
Each defendant, except Roseville Community Hospital, filed a general demurrer to this count. No challenge was made to the third count which alleged that, as a proximate result of defendants' negligence, plaintiffs had incurred and would continue to incur medical and related expenses for the care of their daughter. Drs. Blaine, Harlan, and Junod also filed special demurrers for uncertainty asserting that the allegation of negligence does not reveal which act of theirs was observed by the plaintiffs. Sutter Community Hospital filed a similar demurrer asserting that the failure to specify what act or acts constituted negligence makes it impossible to prepare its defense.
At the hearing on the demurrers Drs. Achtel and Juris were permitted to amend their demurrers to add a special demurrer for uncertainty on the grounds specified in previous demurrers they had filed to plaintiffs' superseded pleadings. The trial court sustained the general demurrers without leave to amend on the ground of failure to state a cause of action. The trial court sustained the special demurrers without leave to amend on the ground that plaintiffs failed to plead with specificity the acts which constitute negligence.
DISCUSSION
I
The Marchands argue that their second cause of action states a claim for relief under two separate theories of recovery. The first theory, predicated upon Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, is sufficiently pled to lend itself to resolution on the pleading tendered. The second claim, phrased as the negligent infliction of emotional distress, is pled as an ordinary cause of action for negligence. We defer for later consideration the adequacy of this claim, the merits of the cause underlying the claim, and the adequacy of the pleading to put the underlying merits in issue.
In this part we examine the Marchands' claim that recovery for serious emotional distress can be founded upon Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. The trial court correctly rejected this as a ground of recovery.
Dillon recognized that its bystander rule is an exception to the general rule that "damages [ ] for 'mental suffering' [are available only in cases in which] the mental injury can be in aggravation of, or 'parasitic to,' an established tort." [Citations.] ( Dillon, supra, 68 Cal.2d at p. 738, 69 Cal.Rptr. 72, 441 P.2d 912.) In Dillon no such independent tort was alleged. Rather, the duty of the tortfeasor to the (bystander) parent of the child injured by his negligence was viewed by the court as wholly derivative of the duty which the tortfeasor owed the child. In framing this exception to the established grounds of recovery for emotional distress, Dillon employed "the nature of the injury, and its causal relation to the conduct which caused it" to measure and limit the circumstances in which recovery for emotional distress might be had. (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 607, 208 Cal.Rptr. 899.)
"In the absence of the primary liability of the tortfeasor for the death of the child, we see no ground for an independent and secondary liability for claims for injuries by third parties." ( Dillon, supra, 68 Cal.2d at p. 733, 69 Cal.Rptr. 72, 441 P.2d 912.)
In Turpin v. Sortini (1982) 31 Cal.3d 220, 237, 182 Cal.Rptr. 337, 643 P.2d 954, a wrongful life case on behalf of a child born deaf from a hereditary defect not diagnosed in a sibling, the court said the minor could recover " 'extraordinary expenses for specialized teaching, training and hearing equipment' " only to the extent to be incurred after majority, those expenses during minority properly being encompassed in a cause of action by the parents.
The Marchands' complaint, notwithstanding its generality, rules out this kind of emotional injury. Pruned to its root fact, the Marchands allege that they witnessed the symptoms of a cardiac and/or respiratory arrest in their daughter in the defendants' hospital but had no knowledge that the consequences of the arrest would be severe and permanent neurological damage.
Dillon does not provide for recovery of emotional distress of the kind which results from the observation of the symptoms of a child's illness, even a severe illness. (See Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 6, 216 Cal.Rptr. 661, 703 P.2d 1.) That is because Dillon rests upon the policy determination that the "common" distress occasioned by witnessing "the loved one's pain and suffering" must be endured. (Ibid.)
Ochoa holds that recovery is also permitted under Dillon when the emotional harm of shock ensues from the uncommonly cruel perception that the child's suffering is being caused by the misconduct of the defendants. Although the parents in Ochoa did not witness the boy's death they stated a claim because "liability is posited on the shock and trauma which they experienced upon seeing their son's medical needs being ignored by the defendants." ( Id., at p. 167, fn. 7, 216 Cal.Rptr. 661, 703 P.2d 1.) As Ochoa viewed it, such shock is compensable because it is caused by the perception of "the apparent neglect of the patient's immediate medical needs by medical personnel." ( Id., at p. 165, fn. 6, 216 Cal.Rptr. 661, 703 P.2d 1.) The Marchands' claim fails this test as well.
We do not view Ochoa as limiting the Dillon cause of action to circumstances in which the parent perceived the act of negligence of the tortfeasor which caused the injury to the child. Ochoa makes no claim that it in any way limits the criteria of liability established in Dillon. In Dillon the perception of the act of negligence played no part in its criteria of actionability. Whether the negligent act caused the injury to the child was the inattentiveness of the driver, which conceivably could have been witnessed by the parent, or the negligent failure of the mechanic to properly repair the brakes of the car, which could not have been witnessed, was of no consequence to Dillon's theory of liability.
The Marchands make no claim that they had a contemporaneous perception that the action or inaction of the defendants was causing harm to Stacy. Indeed, the coyness of the complaint's treatment of the defendant's malpractice belies any prospect that such a perception existed. Since the affirmative allegations of the complaint rule out a Dillon cause of action, there is no legal warrant for a curative amendment. That is not the case with the alternative theory of liability.
"In testing the sufficiency of a complaint against a demurrer we are guided by the well-settled rule that 'a general demurrer admits the truth of all material factual allegations in the complaint; that the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court; and that plaintiff need only plead facts showing that he may be entitled to some relief.' " ( Ochoa v. Superior Court, supra, 39 Cal.3d at p. 162, fn. 2, 216 Cal.Rptr. 661, 703 P.2d 1; citations omitted; emphasis added.) The materiality of a factual allegation "depends upon the issues in the case [and] is determined mainly by the pleadings, the rules of pleading, and the substantive law relating to the particular kind of case." (Witkin, Cal. Evidence (2d ed. 1966) § 301, p. 265; italics in original; see also Andalon, supra, 162 Cal.App.3d at pp. 604-606, 208 Cal.Rptr. 899.) Materiality is a question of law.
II
The Marchands alternatively advance a claim phrased as the negligent infliction of emotional distress. The generality of this claim is invited by language in Molien v. In Andalon v. Superior Court, supra, 162 Cal.App.3d at p. 609, 208 Cal.Rptr. 899, we found that the generalization of the claim invited by Molien was not helpful in resolving the question of the liability at issue. "It is fruitful [we said] to approach this problem without the mind set engendered by generalized notions of 'negligent infliction of emotional distress.' " (Id. at p. 609, 208 Cal.Rptr. 899.) The conceptual difficulties engendered by such a mind set are "alleviated if the analysis is recharted from within the established doctrines of recognized torts...." ( Id., at p. 610, 208 Cal.Rptr. 899; see also Newton v. Kaiser Hospital (1986) 184 Cal.App.3d 386, 228 Cal.Rptr. 890.) That is the course we followed in Andalon and Newton. Since these cases provide an analytical background for this case, we briefly review them here.
In Andalon, supra, the cause of action was for wrongful birth. We relied upon the established tort doctrine of Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16. We held that the Andalons stated a cause of action on allegations that they suffered severe emotional distress caused by the negligent failure of Mrs. Andalon's doctor, with whom they had contracted for medical services, to explore the possibility that the unborn child was a victim of Down's Syndrome resulting in an unwanted birth. (Accord Martinez v. County of Los Angeles (1986) 186 Cal.App.3d 884, 891-893, 231 Cal.Rptr. 96.) We held that "Mrs. Andalon was a party to the contract with the defendant.... The tort duty arising from [that] contract ... runs to [Mr. Andalon] not merely because of the foreseeability of emotional harm to him, but because of the nexus between his significant interests and the 'end and aim' of the contractual relationship. He is manifestly a direct beneficiary of tort-duty imposed by virtue of the doctor-patient relationship." ( Andalon, 162 Cal.App.3d at p. 611, 208 Cal.Rptr. 899.) In extending the duty to Mr. Andalon as "a kind of third party beneficiary of the contract" (Andalon, at p. 609, 208 Cal.Rptr. 899) we applied the established tort doctrine of Biakanja v. Irving, supra. In negligently breaching the contractual duties to Mr. and Mrs. Andalon, we noted that the defendants did not, as such, injure the Andalons' child. In fact, "if defendants had performed their jobs properly [the child] would not have been born ... at all". (Turpin v. Sortini (1982) 31 Cal.3d 220, 231, 182 Cal.Rptr. 337, 643 P.2d 954; Andalon, supra, 162 Cal.App.3d at p. 614, 208 Cal.Rptr. 899.) Rather, the damages flowed from the injurious consequences to the parents of the birth of an unwanted child. Such injuries involve the special costs of raising and caring for a gravely disabled child, pursuant to the parents' duty to do so, and the severe emotional injuries, not common to the mere fact of parentage, associated with the fulfillment of these duties.
In Newton v. Kaiser Hospital, supra, 184 Cal.App.3d at pp. 389-393, 228 Cal.Rptr. 890, we applied the Andalon-Biakanja concept of duty to establish the liability of the defendant to the parents of a child negligently injured in childbirth by holding that they were the "direct victims" of the negligence of the doctor with whom Mrs. Newton had contracted for obstetric services (a point missed in Martinez v. County of Los Angeles, supra.). Newton differs from Andalon in that the Newtons' child was, in the first instance, injured by the defendants' negligence. However, Newton, like Andalon, founded the duty to the parents in the contractual relationship between the parents and the medical defendants by which the defendants agreed to provide competent obstetric advice and services to Mrs. Newton which implicated the reproductive interests of both parents. It was the negligent breach of this contractual duty to the parents which created the tort and resulted both in injuries to their child during birth and emotional injuries to themselves. "It cannot be gainsaid that
This case differs from Andalon and Newton in that Mrs. Marchand was not an obstetric patient of the defendants and hence the reproductive interests of the parents were not as such implicated by the injury to their child. Rather, as we will show, the Marchands' claim is founded upon a breach of a statutory duty in tort which is established under section 376 and which is expressly designed to protect the interests of parents against burdensome injuries negligently inflicted upon their child. Before proceeding to that discussion we look at the line of cases from which our analysis derives.
III
"Our courts have ... devised various means of compensating for the infliction of emotional distress, provided there is some assurance of the validity of the claim.... [P]hysical injury ... provides one such guarantee. Another arises when the plaintiff asserts an independent cause of action apart from personal injury." (Molien, supra, 27 Cal.3d at pp. 926-927, 167 Cal.Rptr. 831, 616 P.2d 813; citations omitted.) In the latter case the pivotal issue of policy is whether the emotional injury "naturally ensues" from acts which invade an interest protected by the established duty in tort. "If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of. ( Deevy v. Tassi, 21 Cal.2d at 109, 120 [130 P.2d 389]; Merrill v. Los Angeles Gas & Elec. Co., 158 Cal. 499, 513 [111 P. 534] )...." (State Rubbish, etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338, 240 P.2d 282; see also Capelouto v. Kaiser Foundation Hospitals, supra, 7 Cal.3d at p. 892, 103 Cal.Rptr. 856, 500 P.2d 880.)
By "acts complained of" Siliznoff referred to the material acts which brought the case within the elements of an established tort. Those acts included the "outrageous" conduct of the defendant. In using the phrase "naturally ensuing" Siliznoff accomplished two purposes. First, it drew a causal connection between the acts constituting the tort and the injury of emotional distress. Second, of decisive significance for the policy question, it linked emotional distress to the interests served by the tort by determining that such distress naturally ensued from the "outrageous conduct" of the defendant. (38 Cal.2d at p. 338, 240 P.2d 282.)
Though obvious, it bears emphasis that in Siliznoff the statement of the tort itself, the intentional infliction of emotional distress, brought emotional distress within the ambit of interests protected by the tort. "The statement of the duty [not to intentionally inflict emotional distress] contains a description of the effect to be avoided [such an infliction]." (Leamon v. Workers' Comp. Appeals Bd. (1987) 190 Cal.App.3d 1409, 1416, fn 4, 235 Cal.Rptr. 912.) The In other cases, the "acts complained of", which are judicially recognized as within the ambit of the tort, inferentially serve to define the interests protected by the tort and thus form the basis upon which the judgment may be made whether the kind of emotional injury which is alleged "naturally ensues" from such acts. The progenitor of the doctrine is Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 44 P. 320. The plaintiff was a passenger on a railroad train. Her ticket was taken away by a conductor. Later a second conductor ordered her off the train, in an insulting manner, for lack of the ticket and lack of money to pay the fare. No force was used. The railroad did not dispute the claim that damages for the conduct in evicting her from the train and in insulting her could be recovered for violation of the railroad's duty in tort as a common carrier. However, it disputed liability for damages for mental suffering. The Supreme Court answered: "Although mental suffering alone will not support an action, yet it constitutes an aggravation of damages when it naturally ensues from the act complained of. (3 Sutherland on Damages, sec. 1245.)" ( Id., at p. 680, 44 P. 320.) The significance of this test is to be found in the facts of the case.
The court said that the "mental suffering" for which recovery could be had was "the mental experience which is concomitant with the insult, indignity, and humiliation" which we can readily conclude "naturally ensues" from the humiliating acts of the conductors which they were under a duty to avoid. The tort in Sloane arose from the contractual duties which the common carrier assumed in providing its service for hire. "The complaint [was] not merely for the breach of the contract, nor ... merely for the wrong committed in excluding [the plaintiff] from the [railroad] car, but [was] to recover the damages sustained by her by reason of the wrongful acts committed by the defendant in violation of its contract." (111 Cal. at p. 677, 44 P. 320.) The court, having brought such acts within the ambit of the interests served by common carriers, also provided the link to the particular forms of emotional distress which "naturally ensue" from such acts. As the court said: "It would be a contradiction of terms to hold that the individual whose pride had been humiliated, or whose dignity had been insulted, had no mental suffering in connection therewith, or that this humiliation and insult did not of themselves constitute mental suffering...." ( Id., at p. 679, 44 P. 320.) In fact, humiliation and the anxiety connected therewith are forms of mental suffering. (See Capelouto, supra, 7 Cal.3d at pp. 892-893, 103 Cal.Rptr. 856, 500 P.2d 880; Crisci, supra, 66 Cal.2d at p. 433, 58 Cal.Rptr. 13, 426 P.2d 173; Deevy v. Tassi, supra, 21 Cal.2d at p. 120, 130 P.2d 389.)
As an additional guarantee of the genuineness of the emotional injury, Sloane did tie the emotional distress for which recompense was provided to what it viewed as an injury to the nervous system, which it regarded as an injury to the body. ( Sloane, supra, 111 Cal. at p. 680, 44 P. 320.) Later cases, including Molien and Siliznoff, have severed this necessary relationship. That is especially the case when "the claim is [otherwise] actionable and has resulted in substantial damages apart from those due to mental distress, [not involving] bad manners or trivialities but tortious conduct resulting in substantial invasions of clearly protected interests." ( Molien, supra, 27 Cal.3d at p. 927, 167 Cal.Rptr. 831, 616 P.2d 813, relying on Crisci, supra, at 66 Cal.2d at p. 434, 103 Cal.Rptr. 856, 500 P.2d 880.)
Thus mental suffering is compensable when there are guarantees of its genuineness which are peculiarly dependent upon the nature of the tort and the interests it serves. The general test, repeatedly advanced, is that mental suffering must "naturally ensue" from the "acts complained Although Molien focused extensively upon the issue of severance of damages for emotional injury from a necessary reliance upon other injuries, at the level of duty it did not repudiate the necessity for connecting the kind of emotional distress alleged to have occurred to interests served by the tort. In Andalon, supra, 162 Cal.App.3d at p. 610, 208 Cal.Rptr. 899, we characterized Molien generally as a medical malpractice case. However, given the acts which it singled out as actionable, Molien may be viewed as a particular kind of medical malpractice case; malpractice in the nature of negligent misrepresentation. This is an established tort which allows recovery for damages caused by negligent professional advice given by an expert for the guidance of clients in economic, financial, or personal affairs. (See Civ.Code, §§ 1710, subd. 2, 1572, subd. 2; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, §§ 480-482; Rest.2d Torts, § 552.) Under the law pertaining to this tort, the duty of the expert rendering the advice is limited to the class of persons to whom or for whom the misrepresentations are made. (See 4 Witkin, op. cit. supra, at p. 2740.) Hence, the characterization of Mr. Molien as a "direct victim" is logically founded upon the conclusion that he was a person within the ambit of the interests served by the limited duty of this tort. This accounts for the stress in Molien upon the fact that the physician told Mrs. Molien to have her husband examined for syphilis. (Cf. Ochoa v. Superior Court, supra, 39 Cal.3d at p. 172, 216 Cal.Rptr. 661, 703 P.2d 1.) Such advice to advise, in the context of a married couple, sufficed to show that Mr. Molien was one to whom or for whom the misrepresentation was made, i.e. within the protection afforded by the tort, he was a direct victim.
Thus, viewing recovery for emotional distress as a question of duty, the narrowest definition of the conditions which give rise to such recovery is that the distress must be of the kind which naturally ensues from an act which invades an interest for which an established tort affords legal protection. Policy factors are at work in the determination whether the tort is of that kind. Nonetheless, this general analytical framework provides the lens through which a focused analysis may be accomplished. We adopt that definition in this case to assess the merits of the Merchands' claim of negligent infliction of emotional distress.
Accordingly, the pertinent questions to be asked are: (1) does the defendants' conduct breach an established duty in tort running to these plaintiffs and, if so, (2) does the serious emotional distress they claim to suffer naturally ensue from an act which invades an interest protected by that duty.
In this case, the Marchands' claim suggests that it can satisfy each of these criteria. As we will next show, there is a duty arising under an established tort running to the plaintiff parents under section 376. The serious emotional distress claimed here may naturally ensue from conduct which invades an interest protected by that duty.
IV
Section 376 provides, in pertinent part, that: "The parents of a legitimate unmarried minor child, acting jointly, may maintain an action for injury to such child caused by the wrongful act or neglect of another." There are two points of note
Section 376 provides: "The parents of a legitimate unmarried minor child, acting jointly, may maintain an action for injury to such child caused by the wrongful act or neglect or another. If either parent shall fail on demand to join as plaintiff in such action or is dead or cannot be found, then the other parent may maintain such action and the parent, if living, who does not join as plaintiff must be joined as a defendant and, before trial or hearing of any question of fact, must be served with summons either in the manner provided by law for the service of a summons in a civil action or by sending a copy of the summons and complaint by registered mail with proper postage prepaid addressed to such parent's last known address with request for a return receipt. If service is made by registered mail the production of a return receipt purporting to be signed by the addressee creates a rebuttable presumption that such summons and complaint have been duly served. The presumption established by this section is a presumption affecting the burden of producing evidence. The respective rights of the parents to any award shall be determined by the court.
A.
The statute itself makes clear that the cause of action resides in the parents. That is what it says and what the cases say about it. Section 376 takes its substance (indeed its language) from section 11 of the Civil Practice Act of 1851. It provided that "[a] father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury ... of a child...." (Stats.1851, ch. 5, § 11, p. 52.)
In Karr v. Parks (1872) 44 Cal. 46 a father brought an action under section 11 to recover expenses that he had incurred in the cure of wounds inflicted by the defendant upon his infant daughter. The defendant tendered, as a bar to the action, the judgment in a prior personal injury action brought by the father, as guardian ad litem, for the same injuries to the daughter. The Supreme Court gave short shrift to this claim. "It is a sufficient answer to this theory to say that the former action was not brought under the provisions of section eleven.[ [The daughter] sued for "...
Provision for the representation of the child's interests was separately located in section 9 of the Civil Practice Act. It provided that "[w]hen an infant is a party he shall appear by guardian...." This provision is now located in section 372.
"The former and the present cases differed, both in the parties and in the causes of action. Hence, upon well settled principles, the former recovery was not available as a bar...." (Id., at p. 48.)
Subsequent cases have embedded the right of the parents in the successor section, section 376, which is here at issue. (See e.g., Durkee v. Central Pac. R. Co. (1880) 56 Cal. 388; Lane v. Safeway Stores, Inc. (1939) 33 Cal.App.2d 169, 91 P.2d 160.)
B.
Because the cause of action arising out of injuries "to [the] child" under section 376 resides in the parents, the interests served by the cause differ in marked respect from those of the child. Thus, as was said in Durkee, "two actions can be maintained for damages ... one in behalf of the parent, and the other in behalf of the minor. When the action is brought by the parent, loss of service, medical attendance, expenses of nursing, and the like are matters to be considered by the jury, and in such cases compensation is the rule.... [B]ut when the action is brought on behalf of the child, there are other separate and distinct elements of damage. The child recovers, not for loss of time or service or medical attendance or expenses of curing, but for the injury personal to himself, such as pain and suffering, both physical and mental, disfigurement, etc." ( Durkee, supra, 56 Cal. at p. 392.)
The parents' cause of action is for injuries which are personal to them. It is predicated upon the parents' obligations to the child. As we said, section 376 derives from section 11 of the Practice Act of 1851 (Stats.1851, ch. 5, p. 52, § 11.). It adopted the substantive common law of liability owed a parent for a wrongful injury to a child. The common law of England, in recognition of the role of the child in the economic life of the family, was "to the effect that in an action by a parent for injuries to his minor child under his care, the gravamen of the action is the loss of service [of the child to the parent]; as incidental to which he [the parent] may recover the expense of nursing and healing the child." (Sykes v. Lawlor (1874) 49 Cal. 236, 237-238.) However, as Sykes held: "[I]n this country a more liberal rule has been adopted; and the best considered cases hold that inasmuch as it is a duty enjoined ... upon the parent, to care for and heal his injured minor child, he who willfully or negligently occasioned the injury should be held responsible for the expenses incurred, without reference to the capacity of the child to render service to the parents." ( Id., at p. 238; see also Karr v. Parks, supra, 44 Cal. at p. 49; Durkee, supra, 56 Cal. 388; Lane v. Safeway Stores, Inc., supra, 33 Cal.App.2d at p. 175, 91 P.2d 160; Finnerty v. Cummings (1933) 132 Cal.App. 48, 22 P.2d 37; Bauman v. San Francisco (1940) 42 Cal.App.2d 144, 108 P.2d 989; Shriver v. Silva (1944) 65 Cal.App.2d 753, 151 P.2d 528.)
Thus, following Sykes v. Lawlor, supra, we measure the interest protected by section 376 as derivative of the "duty enjoined by the law of the land ... upon the parent, to care for and heal his injured minor child...." That interest is invaded when the child is injured through the "wrongful act or neglect of another" and the injury implicates the parents' duty of care. That leads to the question whether the negligent performance of a physician-parent contract for the care of a minor child, proximately causing injury to the child, constitutes a "wrongful act or neglect" within the meaning of section 376. We answer that question in the affirmative.
V
In California, medical malpractice is a tort which arises out of the relationship of physician and patient. (See e.g. Where medical malpractice gives rise to injuries that burden the parental duty to care for and heal the injured minor child, the interest protected by the duty running to the parents under section 376 is thereby invaded. There is no reason to carve out an exception to section 376 for medical malpractice. Implicitly recognizing this point as to medical expenses which the parents also claim, the defendants make no challenge to the third count of the Marchands' complaint which alleges that, as a proximate result of defendants' negligence, plaintiffs had incurred and would continue to incur medical and related expenses for the care of their daughter. Indeed it would be doubly ironic to do so in circumstances where the defendants' misconduct arises during the parents' effort to comply with the "law of the land ... [and] the laws of nature" by seeking the defendants' aid in caring for and healing the original sickness or injury of the child.
Moreover, as to ensuing emotional harm to the parents, a physician who has contracted with the parents for such services is, if anything, poorly placed to specially plead for exceptional freedom from liability. When a physician undertakes to practice medicine for a parent on a child, the physician cannot be unaware that a negligent breach of the warranty of professional competency will impinge on the interests of both parent and child. The language of the medical profession itself shows physician awareness of this profound connection; it is called family practice. That brings us to the question of damages.
VI
Section 376 provides that: "In every action under this section, such damages may be given as under all of the circumstances of the case may be just...." Since the cause of action provided by section 376 is personal to the party injured, the cause of action in the parents does not extend to damages which are personal to the child. ( Durkee, supra, 56 Cal. 388.) Durkee, in commenting upon the measure of damages which in the circumstances "may be just" , said: "[T]he Legislature had in view the principles of the common law as the same are applicable to cases of this character, and intended that the [parent] should recover such damages as he has sustained, by way of compensation, leaving to the infant a further right of recovery of such damages as are personal to himself." (Id., at p. 393.)
The phrase, as construed by Durkee, was contained in former section 377. However, it then applied not only to that section but to section 376 as well. Accordingly, Durkee is authority for its present usage.
Durkee held that it was error for a trial court to instruct the jury that a parent could recover damages to compensate the parent for loss of the mental capacity of the injured child and for other injuries to the child. The court stated: "The question was, not what damages would compensate him, the infant, for the injury inflicted upon him, but what damages would compensate the father for the loss incurred by him." (56 Cal. at pp. 393-394.) Although the opinion alludes to out-of-state cases Two other cases similarly provide no precedent for this case. Clough v. Steen (1934) 3 Cal.App.2d 392, 39 P.2d 889, was an action for wrongful death not predicated upon section 376. In Kalleg v. Fassio (1932) 125 Cal.App. 96, 13 P.2d 763, the court upheld a jury instruction stating that a father was not entitled to recover because of " 'grief, sorrow, or resentment ... on account of any injury sustained by his wife or children ... or because of ... any scars, blemishes, or disfigurement on the faces of the wife or children.' " ( Id., at p. 99, 13 P.2d 763.) However, the court made no mention of section 376 nor was the emotional injury linked to the interests served by section 376, the burdening of the parents by their duty to care for and heal the child. As we subsequently discuss, the emotional injury at issue here is the kind which "naturally ensues" from an invasion of the parental interests served by section 376. Moreover, it constitutes an aggravation of other injuries, such as the expense of caring for the child, which also ensue from such an invasion.
Section 376 exempts damages for wrongful death which are made the subject of section 573 of the Probate Code. Section 377 addresses the parents' cause of action for wrongful death.
Moreover, Durkee squarely placed the measure of "just" damages within the common law and hence within the developing law of damages created by the courts. Such damages as "under all of the circumstances of the case may be just", as provided by section 376, are, accordingly, the damages which may be awarded under the common law in "cases of the character" under review. Durkee, as we have said, did not involve an issue of damages of "the character" here claimed. The question then becomes whether it is appropriate under the common law to award damages for the severe emotional distress occasioned by the Marchands' fulfillment of their duty to care for and cure their brain damaged minor child arising out of the defendants' "neglect" in the circumstances alleged in this case. If the Marchand parents have a claim for serious emotional distress naturally ensuing from tortious breach of their interests protected under section 376, a damages remedy is just and warranted under the statute.
As we have stressed, and as the cases recognize, emotional distress may occur in many forms. (See Crisci v. Security Ins. Co., supra, 66 Cal.2d at p. 433, 58 Cal.Rptr. 13, 426 P.2d 173.) Whether recovery for a particular form of emotional distress may be had depends upon whether it is of the kind that naturally ensues from an act which invades interests served by the duty which has been breached.
This distinction explains why California and the majority of American jurisdictions reject a cause of action for the parents' loss of the society and affection of the child. (Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871; see e.g. Annot., Parent's Loss of Child's Society and Companionship as Element of Damages for Injury to Child (1976) 69 A.L.R.3d 553.) The particular kind of emotional injury inflicted by a loss of familial consortium is not the same as that which we recognize in this case nor is it generally congruent with the varieties of serious emotional distress for which recovery is recognized; recovery of one variety of damage may be appropriate when the other variety is barred. (Hair v. County of Monterey (1975) 45 Cal.App.3d 538, 119 Cal.Rptr. 639, disapproved on other grounds in Baxter, supra, 19 Cal.3d at p. 466, 138 Cal.Rptr. 315, 563 P.2d 871.)
This was implicitly recognized in Capelouto v. Kaiser Foundation Hospitals, supra, 7 Cal.3d at p. 892, footnote 1, 103 Cal.Rptr. 856, 500 P.2d 880, where the court noted, with apparent approval, an instruction allowing recovery for the "mental injury [to the parents] sustained in the course of caring for the [injured] child and responding to her needs." The appearance In Capelouto the claimed emotional distress naturally ensued from the incremental burdens imposed on the parent by the injury to the child. In Baxter, no such claim was tendered; the parents sought recovery for their loss of the healthy child, not mental injury from the crushing burden of the injured child. Indeed, the parents in Baxter may not have suffered cognizable mental injury; under the pre-Molien limitation recovery may have been barred by absence of physical manifestation. There may have been no actionable facts in Baxter even post-Molien; the Baxter parents may have been spared serious emotional distress because of their personal characteristics. The distinction between Baxter and Capelouto is that in the latter the emotional injury naturally ensued from the breach of the existing duty in tort running directly to the parents.
That is also the case suggested by the facts in the Marchand parents' complaint, which must be liberally construed to permit them trial on the merits where the evidence may warrant recovery. The allegations of ultimate fact of the complaint are consistent with the claim that the Marchands' emotional distress ensued from the prospect and reality of caring for and, to the extent possible, healing Stacy in a circumstance where she suffered severe brain damage because of defendants' negligence. This is emotional harm of the kind which naturally ensues from the invasion of their protected interest under section 376. Moreover, the emotional harm stems from an actionable claim which "has resulted in substantial damages apart from those due to mental distress...." ( Molien, supra, 27 Cal.3d at p. 927, 167 Cal.Rptr. 831, 616 P.2d 813, quoting from Crisci, supra, 66 Cal.2d at p. 434, 58 Cal.Rptr. 13, 426 P.2d 173; see also Sloane v. Southern Cal. Ry. Co., supra, 111 Cal. at p. 680, 44 P. 320.) As was earlier said, no challenge was made by the defendants to the third count that alleged that, as a proximate result of defendants' negligence, plaintiffs had incurred and would continue to incur medical and related expenses for the care of their daughter. We may assume that such damages are substantial and, except in the unusual case, are the natural concomitant of the cause of action arising under section 376.
VII
We now come to a policy test by which Molien would sever out the cases of emotional distress warranting recovery from those multifarious causes of emotional distress which arise from the daily confrontation of the individual with the intransigencies of modern life. Molien limits the claim for serious emotional distress to circumstances " 'where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.' " (27 Cal.3d at p. 928, 167 Cal.Rptr. 831, 616 P.2d 813, quoting Rodrigues v. State (1970) 52 Hawaii 156, 283 [472 P.2d 509].) As to "coping", what is meant is the " 'capacity to carry on the functions of life.' " (See Ibid.) This degree of emotional distress is referred to by Molien as "serious" emotional distress. We assume, for purposes of this analysis, that Molien would extend this requirement beyond the cases in which emotional distress is the only injury alleged. (But see Mitchell v. Superior Court (1984) 37 Cal.3d 591, 608-609, 208 Cal.Rptr. 886, 691 P.2d 642 .)
Nothing we say here is meant to alter the quantum of emotional distress for which recompense may be had in personal injury cases or in other cases to which the requirement of "serious" injury has not been appended.
This limitation to serious emotional distress serves to enhance the likelihood that only genuine claims will be pursued. "What all of the cases [which have allowed such recovery] appear to have in common is an especial likelihood of genuine and serious mental distress, arising from the special circumstances [of the tortious conduct], which serves as a guarantee that the claim is not spurious." (Prosser, Law of Torts (4th ed. 1971) § 54, p. 330.) Where no Whether the claimed injury is genuine, i.e. whether it happened in fact, is only one of the policy factors to be considered. Genuineness sounds in proof--to which Molien gives us an answer--let the jury decide, providing that the emotional injury is severe. But holding the defendant to answer for the particular injury implicates a different policy; whether the harm is one that would likely occur in a "normally constituted" person and hence is attributable to the tortious conduct rather than to the plaintiff's eggshell psyche. (See Molien, supra, 27 Cal.3d at p. 928, 167 Cal.Rptr. 831, 616 P.2d 813.)
This reading of Molien allays grave concerns about open-ended liability for emotional harms by application of principled restrictions--(1) an independent duty sounding in tort as to the plaintiff, (2) violation of that duty from which emotional distress naturally ensues, and (3) circumstances which, in the judgment of the court, could be reasonably found to cause serious emotional distress in a normally constituted person. The first and second restrictions channel recovery along the traditional legal paths of responsibility. The third functions like the criterion of outrageous conduct that pertains to intentional infliction of emotional distress. It permits screening of trivial claims, not with respect to the existence of emotional distress, an issue of fact, but with respect to responsibility for emotional distress, an issue of law.
VIII
Thus the remaining question is whether the burden of caring for a child with severe and permanent brain damage may engender serious emotional distress in a normally constituted parent. To the extent that this is a question of law for the court, the answer is yes.
The burdens imposed on the parent by the obligation to nurture a child with severe mental disability are heavy, inexorable, and pervasive. The magnitude of this blow on the emotional Richter scale is reflected in the ample medical and social work literature addressed to paliation and remediation of this problem. Moreover, our own sensibilities impel the conclusion that a normally constituted parent--beleaguered with the ordinary difficulties of life, wounded by the loss of the child that was, and confronted with the prospect and, over time, the reality of the demands imposed by the obligation to nurture a severely mentally handicapped child--even under the most favorable economic conditions might well suffer consequential serious emotional distress.
Our cursory survey discloses the following articles assessing the traumatic impact of a severely mentally handicapped child on the family: Nadal, A Counseling Program for Parents of Severely Retarded Preschool Children (1961) 42 Social Casework 78; Cohen, The Impact of the Handicapped Child on the Family (1962) 43 Social Casework 137; Olshansky; Chronic Sorrow: A Response to Having a Mentally Defective Child (1962) 43 Social Casework 190; Solnit and Stark, Mourning and the Birth of a Defective Child (1961) 16 The Psychoanalytic Study of the Child 523; Koch and Dobson, The Mentally Retarded Child and His Family (1976) especially chapter 27, Schild, The Family of the Retarded Child, at p. 454.
Permitting recovery for serious emotional distress in these circumstances is consistent with the common law development of recovery of damages for wrongful infliction of emotional distress. Such development carefully delimits the actionability of claims of emotional distress in a manner that ensures that the courts will not be flooded with a myriad of spurious and trivial claims and that defendants will not be subjected to vague and open-ended liability for consequential emotional harm. The kind of claim which we find actionable is narrowly and sensibly conditioned by the IX
This brings us to the defendants' final bulwark, the special demurrers for uncertainty. Their validity depends upon the claimed need for specificity. As Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 101, 114 P.2d 1, notes: "the particularity with which a plaintiff must state his cause of action depends to some extent upon the circumstances and the situation of the parties." (Ibid.)
The Marchands' complaint is defective because, given the law discussed above, it fails to show the causal connection between the emotional damages they claim to have suffered and the burden thrust upon them by defendants' negligence. (Cf. e.g., Guilliams, supra, 18 Cal.2d at pp. 100-102, 114 P.2d 1; 3 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 550.) Defendants tendered special demurrers for uncertainty in pleading the acts of negligence. These demurrers have merit, but for the reasons next advanced the Marchands should be permitted to amend their pleading, if possible, to bring it within the law discussed above.
The second claim as phrased in the complaint is the negligent infliction of emotional distress and is pled as an ordinary cause of action for negligence. As related, this casting of the issue is invited by language in Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at pp. 930-931, 167 Cal.Rptr. 831, 616 P.2d 813. After alleging defendants' negligent malpractice, it was alleged that, foreseeably, defendants' negligence "would proximately cause [the Marchands] to suffer severe emotional and mental distress, suffering and anguish" and related medical and other expenses and disenable Roderick Marchand from working with a consequent loss in earnings.
In the ordinary negligence case this allegation would suffice as the causal element of a cause of action for negligence. The elements of such a cause of action are: (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of duty--the negligent act or omission; (3) injury to plaintiff as a result of the breach--proximate or legal cause, and (4) damage to plaintiff. (See 4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, §§ 527, 561.) Under our law of fact pleading such a cause of action is stated by allegations of ultimate fact which mirror these elements.
Ordinarily, the pleaded facts of negligence and injury necessarily lead to the inference of such causation. That is because the nature of the injuries implicate no special issues of duty. However, where the nature of the injury implicates a question of duty, e.g. where the type of harm (here, emotional distress) must be within the scope of the protection afforded by the tort, the pleading is insufficient when it fails to specify the causal relationship of the harm to the duty. (See 4 Witkin, op. cit. supra, § 562, pp. 600-602; c.f. Smith v. Buttner (1891) 90 Cal. 95, 99-100, 27 P. 29.) That is because the causal question is derivative of the duty question. (See Hart and Honore, Causation In The Law (2d ed. 1985) pp. li--liii.)
In this case, the alleged connection between the defendants' negligence and the Marchands' emotional distress implicates a question of duty which is determinative of liability. If the Marchands' emotional distress arose from witnessing their child's distress there is no liability. But, as we have shown, if it naturally ensued from the invasion of an interest protected by section 376, the necessity to care for a severely mentally injured child, it is actionable. The challenged second cause of action fails to specifically allege this latter connection and thus fails to state a cause of action. That tenders a question whether the Marchands should be permitted to amend their pleading, if such is possible, to cure the defect.
The applicable rule is: "Leave to amend should be denied where the facts are not in dispute, and the nature of the plaintiff's claim is clear, but, under the substantive law, no liability exists." (See 5 Ideally, the demurrer process should afford the plaintiff the opportunity to correct shortcomings of form and curable defects of substance in its efforts to state a cause of action. (See 5 Witkin, op. cit. supra, §§ 942, 943.) The object is not to test the technical legal acumen of the pleader but rather to ascertain if the claim may be actionable. The criticism of the opposing party and the colloquy with the trial court concerning the nature of the identified shortcomings should winnow, through successive efforts to amend, if warranted, the potentially meritorious claims from those that are simply not actionable. "The basic principle governing the privilege of amendment is clear enough: amending of the pleading should be allowed if it appears likely the pleader has, and can state, a recognizable legal claim; amendment should be denied if it appears the pleader has only a moral claim or disappointed expectation, and cannot validly state a justiciable cause of action. But in application we find more of art than of science. How does a court, confronted with a defective pleading of nondescript appearance and uncertain ancestry, determine whether the pleading is susceptible of future domestication into the recognizable flock of justiciable causes of action? In final analysis, the court is required to look at the existing pleading and hazard its best judgment whether behind the words of the pleading anything of legal substance lies, whether on further revision the pleading can honestly state a cause of action." (Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 709, 72 Cal.Rptr. 441.)
In this case, given the facts that are plead, including that the Marchands incurred pecuniary damages by reason of the necessity to care for their child, it is reasonably possible that the Marchands will be able to state a claim that emotional distress also resulted from this state of affairs under the specific theory of recovery which is advanced in this opinion. The Marchands should therefore be permitted to amend their pleading.
The thrust of the demurrers is that failure to specify the negligent conduct disadvantages the defendants because they could not show at the pleading stage that the Marchands did not observe the alleged negligent conduct. This claim, however, is predicated upon the defense that plaintiffs' claim is not viable under Dillon. As we have resolved that point in defendants' favor, the special demurrers have no independent validity. In view of our holding that plaintiffs may amend their pleading to bring the claim premised upon Molien within the confines of section 376, defendants will have an opportunity to tender special demurrers on remand, if that is deemed necessary.
Let a peremptory writ of mandate issue commanding the trial court to rescind its order sustaining the demurrers in issue and to enter an order overruling those demurrers.
SIMS, J., concurs.
CARR, Associate Justice, concurring and dissenting.
I concur in the judgment of reversal but dissent from the basis of liability as found by the majority. The majority concludes the parents have a cause of action under section 376, Code of Civil Procedure, "for damages for serious emotional distress to themselves which naturally ensues from the burdens imposed upon them to care for their minor child who has suffered severe and permanent brain damage by reason of the malpractice of physicians." (p. 533.)
Initially, I observe plaintiff parents have not by the slightest innuendo advanced in their pleadings a cause of action under section 376 for damages for their emotional distress. Good reason supports this course of conduct: until today, no California court
1Historically and pursuant to section 376, recovery by parents of a minor for injuries to the minor have been limited to pecuniary loss sustained by the parents. "Under our early law the parent (usually the father) entitled to the services of a minor unmarried child had a cause of action for injuries to the child. He could recover the value of the child's services during the period of minority, and the expenses of medical care." (4 Witkin, Summary of Cal. Law (8th ed. 1974) § 378, p. 2632.) In the early case of Edgar v. Citraro (1931) 112 Cal.App. 183, 186, 297 P. 653, the court stated: "[T]here was still a third and distinct cause of action which arose out of the injuries to Florence Edgar and in favor of Edgar and his wife, as the parents of Florence, to recover indemnity for the financial loss they sustained on account of the injuries to their daughter." In Finnerty v. Cummings (1933) 132 Cal.App. 48, 50, 22 P.2d 37, the general rule was stated as: "Ordinarily, that is where the usual relationship of parent and child exists in which the parent exercises his right to the child's services and performs his duty to support it, the right to recover for loss of the child's earnings and for medical expenses incurred in treating its injuries belongs to the parent."
In Durkee v. C.P.R.R. Co. (1880) 56 Cal. 388, 392, 393-394, the Supreme Court reversed a verdict for the father of a minor when the verdict included general damages recoverable only by the minor for his pain, suffering and physical impairment. The jury had been instructed erroneously that: " 'The question of damages is one for your consideration; and you may award such damages as, in view of all the circumstances--the mental capacity of the boy himself, and of the injury inflicted upon him--may seem to you just. Whatever amount of money, in your judgment, will compensate him for his injuries, that will be the amount of your verdict.' " (P. 393; original italics.) And a proper instruction had prejudicially been refused. This read: " 'Plaintiff is not entitled to recover in this action damages for the pain or suffering which his son, Milton W. Durkee, experienced from the injuries he received, or for his disfigurement therefrom.' " (P. 394.)
En route to its finding that the instructions were improperly given and refused, the court determined how similar laws of other states had been interpreted and finalized by stating: "The law upon this subject is well stated by Shearman and Redfield in their work on Negligence. (§ 608.) [p] 'The damages recoverable by a parent ... for a negligent injury to the person of his child ... are strictly limited to an amount fully compensatory for this consequent loss of services for a period not exceeding the minority of the child ... and the expenses which the plaintiff has incurred in consequence of the injury, such as for surgical attendance, nursing, and the like. Damages awarded upon any other grounds than these clearly belong to the person corporally injured, whose right to sue, it must be remembered, is entirely unaffected by the action of his parent....' " (P. 392; original italics.) The court concluded: "It is, therefore, reasonable to presume, that the Legislature had in view the principles of the common law as the same are applicable to cases of this character, and intended that the father should recover such damages as he has sustained, by way of compensation, leaving to the infant a further right of recovery of such damages as are personal to himself." Clearly, the earliest interpretation by our California Supreme Court of section 376 was and is that the statute places in the parent or parents an independent cause of action on their own behalf to recover damages for negligent injury to a minor child but for pecuniary or compensatory loss only, that is for loss of services and for medical costs incurred for treatment of the minor child's injuries. The majority dismisses the holding of Durkee, supra, as dicta, opining that "the opinion alludes to out-of-state cases suggesting that damages to parents should be limited to pecuniary loss." (p. 543.) What is dicta may be in the eye of the beholder, but to characterize the primary holding of Durkee that the damages of the parents under section 376 are limited to the pecuniary loss of services of the minor and medical and like expenses as dicta is simply misstatement.
The predicate of the majority's analysis is that section 376, by conferring on the parents of a minor child an independent cause of action in their own right for their own damages arising out of negligent injury to the child bestows upon the parents the right to recover damages for any personal injury flowing from the child's injuries. Such a cause of action was not recognized at common law or under section 376 or its predecessor. The view that parental damages are limited to pecuniary loss is likewise shared by the Restatement of Torts. At Restatement Second of Torts section 703, the rules are succinctly stated:
"Action by Parent for Harm Caused by Tort Against Minor Child,
"One who by reason of his tortious conduct is liable to a minor child for illness or other bodily harm is subject to liability to
"(a) the parent who is entitled to the child's services for any resulting loss of services or ability to render services, and to
"(b) the parent who is under a legal duty to furnish medical treatment for any expenses reasonably incurred or likely to be incurred for the treatment during the child's minority."
In my view, a statute, such as section 376 which has been consistently interpreted by our courts as limiting the damages of parents to their pecuniary losses 2 and which over the years has been amended a number of times but only to make procedural changes or to extend the parental cause of action to first the mother of a legitimate child and then to the father of an illegitimate child does not encompass the cause of action ascribed to it by the majority.
But this does not leave the parents without a remedy. As I stated in the beginning, a cause of action does lie for the parents under the theory expounded in the Andalon v. Newton cases.
In Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, the Supreme Court first fashioned the "direct victim" theory of recovery for emotional distress damages. In Molien, the plaintiff husband filed an action against a hospital and a physician for negligently misdiagnosing his wife as having an infectious type of syphilis. Knowing that the husband would learn of the diagnosis, defendants had instructed the wife to so advise him. Plaintiff was thereafter required to undergo blood tests, which determined he did not have the disease. Plaintiff alleged that as a result of the neglient misdiagnosis his wife became upset and suspicious that he had engaged in extramarital sexual activities, which in turn led to a break-up of the marriage and the initiation of dissolution proceedings. (Pp. 919-920, 167 Cal.Rptr. 831, 616 P.2d 813.) In its review of the dismissal entered after the sustaining of demurrers without leave to amend to causes of action for negligent infliction of emotional distress, the court first stated the bystander theory of Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, was "apposite, but not controlling." (27 Cal.3d p. 921, 167 Cal. In Andalon v. Superior Court, supra, 162 Cal.App.3d 600, 208 Cal.Rptr. 899, a wrongful birth case, the parents alleged that defendants' medical malpractice in rendering prenatal care resulted in the unwanted birth of their child, a victim of Down's Syndrome. Parents sought to recover damages for their emotional distress. This court concluded the parents' claim did not fall within the bystander exception of Dillon, supra, and turned to the "direct victim theory" of Molien, supra. Relying on the established tort doctrine in Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16, we held the parents stated a cause of action for severe emotional distress. "[W]e perceive both parents to be direct victims of the malpractice alleged. Mrs. Andalon was a party to the contract with the defendant and no issue of his duty to advise her concerning mongolism is tendered at this stage of the action. Mr. Andalon's interest in the receipt of information and advice on this [mongolism] mirrors hers. His injury is not merely derivative of Mrs. Andalon's injury but flows from his role as a participant in the reproductive life of the marital couple and its lawful choices. The burdens of parental responsibility fall directly upon his shoulders. The tort duty arising from the contract, between defendant and Mrs. Andalon, runs to him, not merely because of the foreseeability of emotional harm to him, but because of the nexus between his significant interests and the 'end and aim' of the contractual relationship. He is manifestly a direct beneficiary of tort-duty imposed by virtue of the doctor-patient relationship." ( Andalon v. Superior Court, supra, 162 Cal.App.3d at p. 611, 208 Cal.Rptr. 899, fn. omitted.)
In Newton, supra, 184 Cal.App.3d 386, 228 Cal.Rptr. 890, a child was permanently and irreparably injured during childbirth allegedly due to defendant Kaiser's negligence in applying excessive and unnecessary force with forcepts to the baby's head. The parents sought damages for negligent infliction of emotional distress. We concluded that because of the obstetrician-patient relationship between Mrs. Newton and defendant, Mrs. Newton was a direct victim of defendant's alleged negligence. This relationship was based on a contract between the mother and Kaiser to provide care for her and the child during the birth process. Mr. Newton's interests were also implicated because the couple's reproductive efforts were involved. "Kaiser entered into a contract with the mother to provide care for herself and child during the birth process. A duty of care may arise from contract even though there would otherwise be none. [Citation.] The mother had a contract with Kaiser by which it undertook, for consideration, to provide care and treatment for the delivery of a healthy fetus. Kaiser's contract was the source of its duty and a determination of foreseeability [under Dillon] is unnecessary to establish a duty of care. Under Andalon, that duty extended to the father as well." (184 Cal.App.3d at p. 392, 228 Cal.Rptr. 890.)
Under the Andalon-Newton theory of liability, the duty of care owed by healthcare providers to the minor (or fetus) extends to the parents who are directly implicated by a contractual relationship with the healthcare provider to provide medical care to the minor. This is the situation presented in the instant case. Stacy's parents alleged they entered into an agreement with each of the defendants whereby defendants promised to care, treat and diagnose Stacy and do all things necessary therewith; that defendants knew their failure to do so would result in Stacy's parents suffering severe emotional and mental stress; that defendants so negligently treated and misdiagnosed Stacy that she underwent respiratory arrest and/or cardiac arrest; that they suffered and continue to suffer emotional distress as a result of defendants' negligence. 3
Stacy's parents contracted with defendants to provide medical care for their three-year-old daughter. The Marchands were the contracting parties but the focus of the contract was the medical care and diagnosis of their daughter. When the "end and aim" of a contract for medical care is the diagnosis, care and treatment of a child, the interests of the child's parents' are inextricably linked and the contract to provide nonnegligent medical care is the source of the duty of the medical care providers.
As the court stated in Accounts Adjustment Bureau v. Cooperman (1984) 158 Cal.App.3d 844, 848-849, 204 Cal.Rptr. 881, a case involving the negligent diagnosis of a child: "A negligent diagnosis of a child can, as a matter of law, cause serious emotional distress to a parent. It would be pure fiction to believe that a negligent diagnosis of a two-year-old could not foreseeably cause parents serious emotional distress. A two-year-old has no one but parents to be distressed. Parents having sole responsibility for their child can be direct victims of their child's misdiagnosis." This applies equally to the negligent diagnosis and treatment of a three-year-old, as was the age of Stacy.
Defendants urge that the Andalon-Newton rule of liability should be confined to the obstetrical setting and for policy and other reasons, not be extended to serious emotional distress suffered by parents of a minor child who is severely injured by the medical providers with whom the parents contracted to provide medical services to and for the minor child. The majority appear to concur with this reasoning, asserting "This case differs from Andalon and Newton in that Mrs. Marchand was not an obstetric patient of the defendants and hence the reproductive interests of the parents were not as such implicated by the injury to their child." (p. 537.) But the significant factor and the basis of liability in Andalon and Newton was not the pregnancy or the childbirth but the contractual relationship with the healthcare providers. The pregnancy was simply the basis for entering into the contract to provide medical services. The wife in each case, being the pregnant spouse, was the primary contracting party. The husband was a direct victim of the malpractice directed to the fetus only by reason of the wife's pregnancy and the implication of the reproductive efforts of each of them. I do not gainsay the essentiality of the husband in the reproductive efforts and the pregnancy. I emphasize only that these are the factors which make the husband a direct victim. It is, in each the Andalon and Newton cases, the contractual relationship between the wife and the medical providers which furnishes the basis of liability for negligent acts of those medical providers in the performance of those medical services. In the case at bar, both parents are contracting parties for the providing of medical services for their minor child and both parents are direct victims by reason of that contractual relationship.
That the controlling factor is not the existence of an obstetrical patient-doctor relationship is implicitly recognized by the majority in its statement defining the holding of Andalon. In Andalon, "[w]e held that 'Mrs. Andalon was a party to the contract with the defendant.... The tort duty arising from [that] contract ... runs In urging that this court not extend liability for parental emotional distress beyond the obstetrical situation, defendants cite Martinez v. County of Los Angeles (1986) 186 Cal.App.3d 884, 231 Cal.Rptr. 96, as persuasive. This academic act hardly qualifies as a winning one since the Martinez court expressly disavowed the Newton reasoning stating: "We decline to adopt the analysis in Newton as we believe it to be an unwarranted extension of Andalon and results in a boundless liability for emotional distress of parents who 'contract' for delivery of, or care for, a child who becomes a victim of medical malpractice." (Id., at p. 892, 231 Cal.Rptr. 96.)
Moreover, the reasoning of the Martinez case is not persuasive. It is unclear from the opinion but either the plaintiffs tendered an inadequate complaint and failed to amend or the reviewing court misconstrued the charging allegations.
As policy reasons for not assessing liability on the Andalon-Newton theory, defendants assert the burden to the community of extending the duty of care of medical providers to parents of a minor "would be enormous and reflected in the cost of health care." This concern appears to extrapolate boundless malpractice in the treatment of minors by health care providers, an unwarranted assumption on the record in this case. The liability is in fact limited in that it extends only to parents who suffer "serious" emotional distress as defined by the majority in part VIII of the majority opinion (p. 544.) The class of potential claimants is thus not amorphously undefined. Moreover, if the cost of compensating parents for their injuries caused by the negligent treatment of their children by medical providers is to be passed on to the community at large by medical providers, such allocation would appear to be equitable as representing the cost to the community of receiving medical services, good as well as bad. The alternative is to burden the parents with the total cost.
I would grant the petition for mandate.
A parent may maintain an action for such an injury to his or her illegitimate unmarried minor child if a guardian has not been appointed. Where such parent who does not have care, custody or control of the child brings the action, the parent who has care, custody or control of the child shall be served with the summons either in the manner provided by law for the serving of a summons in a civil action or by sending a copy of the summons and complaint by registered mail, with proper postage prepaid, addressed to the last known address of such parent, with request for a return receipt. If service is made by registered mail, the production of a return receipt purporting to be signed by the addressee creates a rebuttable presumption that the summons and complaint have been duly served. The presumption established by this section is a presumption affecting the burden of producing evidence. The respective rights of the parents to any award shall be determined by the court.
The father of an illegitimate child who maintains an action under this section shall have acknowledged in writing prior to the child's injury, in the presence of a competent witness, that he is the father of the child, or, prior to the child's injury, have been judicially determined to be the father of the child.
A parent of an illegitimate child who does not maintain an action under this section may be joined as a party thereto.
A guardian may maintain an action for such an injury to his or her ward.
Any such action may be maintained against the person causing the injury. If any other person is responsible for any such wrongful act or neglect the action may also be maintained against such other person. The death of the child or ward shall not abate the parents' or guardian's cause of action for his or her injury as to damages accruing before his or her death.
In every action under this section, such damages may be given as under all of the circumstances of the case may be just; except that in any action maintained after the death of the child or ward or against the executor or administrator of the person causing the injury, the damages recoverable shall be as provided in Section 573 of the Probate Code.
If an action arising out of the same wrongful act or neglect may be maintained pursuant to Section 377 for wrongful death of any such child, the action authorized by this section shall be consolidated therewith for trial on motion of any interested party."