Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Stanislaus County Super. Ct. No. 376698, William A. Mayhew, Judge.
Law Offices of Ian Herzog, Evan D. Marshall, Ian Herzog and Sandra Tyson for Plaintiff and Appellant.
Galloway, Lucchese, Everson & Picchi and Karen A. Sparks for Defendant and Respondent Harvey F. Palitz.
Dummit, Buchholz & Trapp, Gena C. Peyton, Daniela P. Stoutenburg and Craig S. Dummit for Defendant and Respondent Doctors Medical Center of Modesto, Inc.
OPINION
VARTABEDIAN, J.
This appeal follows summary judgment awarded against plaintiff and appellant Mark Zamora. The primary issue is whether a father/husband who accompanies his wife through a pregnancy may claim damages either as a direct or indirect victim of alleged medical malpractice that results in seriously premature delivery of the couple’s twin children. We conclude the trial court correctly determined that appellant has not demonstrated facts necessary to support either the “direct victim” or the “bystander” theory of recovery. Accordingly, we will affirm the judgment.
Facts and Procedural History
On appeal after summary judgment has been granted, we view the evidence and inferences from that evidence in the light most favorable to the nonmoving party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In this appeal, the parties do not disagree about the salient facts established in the record.
Christina Zamora (Christina), appellant’s spouse, suffered from type-I insulin-dependent diabetes. She became pregnant with twins. Because of her diabetes, the pregnancy was considered high risk. Appellant and Christina engaged respondent Harvey F. Palitz, M.D., to provide prenatal care. In addition, they engaged Subhash Mitra, a perinatologist; Dr. Mitra is not a party to this action.
On the evening of January 6, 2005, Christina told appellant she was spotting or bleeding vaginally, that she had reached Dr. Palitz by telephone, and that he told her to keep a previously scheduled appointment with Dr. Mitra the next morning. Later that night, Christina began to experience pain and tried to reach Dr. Mitra. She was unable to do so. Appellant took Christina to the emergency room at respondent Doctors Medical Center of Modesto, owned by Doctors Medical Center - Modesto, Inc.
The emergency room staff referred Christina to the labor and delivery unit. Christina complained of uterine contractions and a pinkish discharge. A fetal monitor showed Christina was having contractions every three to four minutes.
The labor and delivery nurse contacted Dr. Palitz by telephone, describing Christina’s complaints and her status. Palitz ordered medication to stop the contractions and a test to determine whether she was actually in labor or was suffering from false contractions. That test required a vaginal swab. During that procedure, the nurse observed that Christina’s cervix was not dilated. About an hour later, the nurse called Palitz to report that Christina’s contractions had slowed somewhat and that she did not appear to be in active labor. Palitz directed the administration of additional medication and told the nurse that Christina could go home after half an hour if contractions had stopped.
At 4:30 a.m., Christina reported she was feeling better and was told she was not in active labor because her cervix was not dilated. Christina was discharged from the hospital with instructions to keep her previously scheduled appointment with Dr. Mitra at 9:30 that morning. Appellant had been with Christina throughout the night.
For the next five hours, Christina was in pain and was sleepless.
Appellant accompanied Christina to Dr. Mitra’s office for the scheduled appointment. Dr. Mitra found Christina was in active labor and called for her to be transported to the hospital by ambulance. At the hospital, further medication failed to stop Christina’s labor. The twins were born in the early afternoon; Anabella weighed 24 ounces and Christian weighed 23 ounces. Appellant was with Christina throughout the delivery and went with the babies to the neonatal intensive care unit, where he watched them be connected to life support systems.
After the delivery, Dr. Palitz came into the room and told appellant and Christina that he never would have discharged Christina the night before if he had been told she was still having contractions. (Dr. Palitz disputes saying this.) This statement upset appellant. Dr. Mitra stated to appellant and Christina that it might have been possible to stop Christina’s contractions if she had been kept at the hospital the night before. Appellant was upset when he heard this statement.
Appellant, Christina, and the twin infants sued Dr. Palitz and Doctors Medical Center for negligence. Appellant alleged a cause of action for negligent infliction of mental distress, asserting both that he was a direct victim of such negligence and that he was a witness to the negligence. In due course, respondents filed motions for summary adjudication of appellant’s cause of action. They contended they owed no duty to appellant sufficient to support his claims as a direct victim of respondents’ negligence. They contended appellant had not perceived that events were causing injury to his wife and unborn children as those events occurred, a necessary element for recovery by a bystander.
The court granted the motions for summary adjudication and entered summary judgment against appellant and in favor of respondents. Appellant filed a timely notice of appeal.
Discussion
I. Direct Victim Theory.
Appellant contends respondents had a duty of care as to him, in addition to duties they may have had to Christina and the children. Relying on outdated cases and out-of-context dicta, appellant contends his “reproductive interests” were necessarily implicated in the doctor-patient relationship between Christina and respondents. Appellant cites such cases as Andalon v. Superior Court (1984) 162 Cal.App.3d 600 (Andalon) and Newton v. Kaiser Foundation Hospitals (1986) 184 Cal.App.3d 386 (Newton).
In Andalon, a child and parents sued a doctor, contending that the doctor’s failure to diagnose the child’s Down’s Syndrome resulted in the “unwanted birth” of the child. (Andalon, supra, 162 Cal.App.3d at p. 604.) The court assumed, at the stage of the case before it, that there was “no issue of [the doctor’s] duty to advise [the mother] concerning” her fetus’s condition. (Id. at p. 611.) Holding that the father was also a direct victim of the doctor’s breach of this duty, the court concluded the father’s injury “is not merely derivative of [the mother’s] injury but flows from his role as a participant in the reproductive life of the marital couple [fn. omitted] and its lawful choices.” (Ibid.) The footnote states: “This is not to say that her views are not paramount or that the defendant was obliged to advise [the father] in any manner save through [the mother], at her discretion. … However, if the couple can prove that [the father] would have been consulted by [the mother] concerning the issues of detection of mongolism and response to its detection we perceive no infringement on the primacy of the doctor-patient relationship.” (Id. at p. 611, fn. 7.)
The Andalon court continued: “The burdens of parental responsibility fall directly upon his shoulders. The tort duty arising from the contract, between [the doctor] and [the mother], runs to [the father], 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, supra, 162 Cal.App.3d at 611.)
In Newton, the child was injured during delivery. The court concluded the hospital had a duty to the mother, arising from its contract for services, “to provide care for [the mother] and child during the birth process.” (Newton, supra, 184 Cal.App.3d at p. 392.) The court also held, in reliance on Andalon, that the “relationship” between the hospital and the mother “implicated the reproductive efforts of the couple, which personally interests [the father].” (Ibid.)
Appellant contends that, just as in Andalon and Newton, his “reproductive interest” in the course of care and treatment of his wife’s pregnancy makes him a direct victim of the alleged negligence.
Supreme Court case law in the decades since Andalon and Newton has not been supportive of the analysis employed in those cases. As stated in Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, 1427-1428, footnote 4: “It appears that petitioners have no ‘direct victim’ claim under Newton and Andalon, two decisions of the Third District which extended the rule of Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916. The Thing opinion specifically criticizes these two cases (Thing v. La Chusa [(1989) 48 Cal.3d 644, 659-660]), and the Supreme Court declined to follow them in Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 591, fn. 7.”
In any event, even though Andalon and Newton have not been expressly disapproved by the Supreme Court, their analysis is wholly incompatible with the analysis in the two cases that are determinative of appellant’s “direct victim” theory of recovery, namely, Burgess v. Superior Court (1992) 2 Cal.4th 1064 (Burgess) and Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124 (Huggins). (See Mega Life & Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1533; Klein v. Children’s Hospital Medical Center (1996) 46 Cal.App.4th 889, 899.)
The primary issue in Burgess was whether a mother could recover for negligently inflicted emotional distress when her obstetrician injured the child during delivery. (Burgess, supra, 2 Cal.4th at p. 1069.) The defendant doctor contended that he had no duty to the mother to avoid injury to the infant, even though the doctor recognized he had a duty to the mother to avoid injury to the mother, and to the infant to avoid injury to the infant. (Id. at p. 1075.) The Supreme Court concluded, stating various reasons, that “the mother’s emotional well-being and the health of the child are inextricably intertwined. [¶]... Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother.” (Id. at p. 1076.)
In the course of explaining how its holding did not constitute “an unprecedented extension of the law,” as the defendant claimed, the court relied upon the Andalon and Newton cases as permitting mothers “to plead and prove such damages” in similar cases. (Burgess, supra, 2 Cal.4th at pp. 1077-1078.) As relevant here, the court stated the following in a footnote: “The issue of a father’s recovery for negligent infliction of emotional distress resulting from injuries to his child during prenatal care and birth is not before us in this case. [Citation.] We note, however, that the physician-patient relationship critical to a mother’s cause of action is almost always absent in a father’s claim. It, therefore, appears that a father must meet the criteria set forth in [Thing v. La Chusa (1989) 48 Cal.3d 644] if he is to state a viable claim.” (Burgess, supra, at p. 1078, fn. 8.) (Thing v. La Chusa is the primary “bystander” victim case, establishing the requirement that the bystander victim, inter alia, contemporaneously observe the infliction of the injury on the direct victim, an issue to which we will return in part II, post. (See Burgess, supra, 2 Cal.4th at p. 1070, fn. 4.))
Although appellant effectively acknowledges that Burgess precludes his successful assertion of a “direct victim” theory of liability based merely on his participation in retaining the services of respondents, he contends Burgess does not preclude establishing the relevant duty on some other basis. However, in describing the relationships in the present case that he says form the basis for finding a duty to himself as a father, appellant acknowledges that his participation here was exactly like the typical father’s participation in prenatal services and the birth process, exactly the circumstances found by the Supreme Court not to give rise to a duty to fathers.
The point of Burgess, for present purposes, is that there is no duty to avoid emotional distress to a father arising out of a doctor’s duty of care toward his patients, the mother and the infant. Instead, such a duty to the father can arise only upon the doctor’s “assumption of a direct duty toward the husband” outside the mother’s doctor-patient relationship. (Huggins, supra, 6 Cal.4th at p. 130.)
Thus, appellant may be correct that there are unusual circumstances in which a doctor assumes a duty to avoid emotional distress to his or her patient’s relatives, or circumstances in which the law imposes such a duty of care. However, appellant has not established such circumstances in the present case. We conclude the court correctly granted summary adjudication of appellant’s negligence cause of action to the extent that cause of action was based on a theory that appellant was a direct victim of respondents’ negligence.
The primary case involving a voluntarily assumed duty is Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916. There, a doctor negligently and erroneously diagnosed his patient to have syphilis; he then directed the patient to tell her husband that he should be tested for the disease. In giving this direction to the patient, the doctor “assum[ed] a direct duty toward the husband.” (Huggins, supra, 6 Cal.4th at p. 130.) Cases involving a legally imposed duty arise not in the context of a duty to a third person but, instead, a duty to an immediate victim. Thus, a duty has been found where a speeding driver negligently places a pedestrian in peril, causing emotional distress to the pedestrian. (See Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1045.)
II. Bystander Theory
Appellant contends, in the alternative, that his presence during respondents’ treatment of Christina gave rise to a right of recovery based upon the “bystander” theory in such cases as Thing v. La Chusa (1989) 48 Cal.3d 644 (Thing). We disagree.
In Bird v. Saenz (2002) 28 Cal.4th 910, 915 (Bird), the Supreme Court reiterated its holding in Thing, supra. “Specifically, we held ‘that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress ….’ [Citation.] We emphasized the mandatory, exclusive nature of the new requirements by expressly rejecting the suggestion that liability for [negligent infliction of emotional distress] should by determined under the more general approach set out in Rowland v. Christian (1968) 69 Cal.2d 108, 112.” The Bird court noted that Thing expressly disapproved “the suggestion in prior cases that a negligent actor is liable to all those persons ‘who may have suffered emotional distress on viewing or learning about injurious consequences of his conduct’ rather than on viewing the injury-producing event, itself.” (Bird, supra, 28 Cal.4th at p. 916.)
Appellant struggles to define the “injury-producing event” in the present case. As stated in Bird: “The problem with defining the injury-producing event as defendants’ failure to diagnose and treat the [injurious condition] is that plaintiffs could not meaningfully have perceived any such failure. Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders.” (Bird, supra, 28 Cal.4th at p. 917.)
Here, the only plausible “injury-producing event” was respondents’ failure to diagnose that Christina was in active labor at the time she was discharged from the hospital with instructions to keep her doctor appointment later in the morning. It is obvious that appellant did not contemporaneously view this as causing injury, because he and Christina complied with the directive without protest.
Confronted with this limitation, appellant unconvincingly attempts to recast the injury-producing event as a more generalized failure to prevent premature birth. The evidence before the court established without contradiction, however, that respondents had no further contact or communication with Christina -- and, thus, did not “act” -- between her discharge from the hospital at about 4:30 a.m. and her readmitance shortly after 10 a.m. When appellant perceived the premature birth and emergency measures, he was viewing or learning about injurious consequences of the negligent misdiagnosis, if any, rather than viewing the injury-producing event, itself. (Bird, supra, 28 Cal.4th at p. 917; see also Golstein v. Superior Court, supra, 223 Cal.App.3d at pp. 1427-1428.)
Appellant suggests this case is similar to Ochoa v. Superior Court (1985) 39 Cal.3d 159 (Ochoa). In that case, a parent visiting her child in a juvenile detention facility saw the child was in pain, complained about his lack of medical treatment, and finally was forced to leave the facility without treatment having been obtained. The child died. (Id. at pp. 163-164.)
While Ochoa engaged in a broad-ranging discussion of the bases for imposing liability, this discussion was characterized as dicta and was rejected in Thing, supra, 48 Cal.3d at pages 660-661. The Thing court did not overrule Ochoa, but it did reiterate that in Ochoa the parent had been present at the injury-producing event and was then and there aware that the event was causing injury. (Thing, supra, at p. 668.) In the present case, by contrast, appellant became aware only much later that the failure to diagnose Christina as being in active labor (and the consequent failure to keep her in the hospital for further treatment to forestall such labor) may have been the cause of the premature labor and delivery. As such, appellant’s cause of action for negligent infliction of emotional distress fails because he cannot show that his knowledge of the injury was contemporaneous with the diagnosis and the discharge based on that diagnosis.
Disposition
The judgment is affirmed. Respondents are awarded costs on appeal.
WE CONCUR:
ARDAIZ, P. J., CORNELL, J.