CHILD CANNOT SUE FOR MALPRACTICE ON
PARENT - BIRD V. SAENZ
In Bird v. Saenz (2002) 02 CDOS 7331, the
California Supreme Court reversed a Court of Appeal decision (reported
previously in this website) and held that a daughter cannot sue for
negligent infliction of emotional distress after witnessing her mother’s
complications from the placement of a catheter.
In Bird v. Saenz, a daughter brought her
mother in for an outpatient surgical placement of a catheter to deliver
chemotherapy. While waiting for the procedure to be completed, the
daughter overheard an emergency call for a thoracic surgeon. She was told
that her mother had suffered complications and might have had a stroke.
She then saw her mother being rushed into the critical care unit. Her
mother had turned blue and her bed was at a 45-degree angle with her head
down. The daughter was told that they had punctured an artery and her
mother was bleeding into her chest. She was also told that they were
pumping fluids into her to keep her alive until the vascular surgeon could
get there. She then witnessed a doctor rushing into the unit with multiple
units of blood, and then saw her mother being rushed back into surgery.
Her mother survived and as a part of her
medical malpractice suit, the daughter also sued for negligent infliction
of emotional distress because she had witnessed her mother’s suffering at
the hands of her doctors.
To sue for negligent infliction of
emotional distress, a plaintiff must be closely related to the victim,
present at the time of the injury and aware that it caused injury, and
suffers emotional distress in excess of what would have been felt by a
disinterested witness. In Bird v. Saenz, the malpractice being alleged was
the subsequent diagnosis and treatment of the victim’s punctured artery.
The Court held that summary judgment was correctly ordered by the trial
court because although the daughter could testify as to what she saw, she
could not testify that she was actually present in the room when the
doctors allegedly misdiagnosed and treated her mother, or testify that she
was actually aware that the doctors’ diagnosis and treatment was causing
her mother injury at the time her mother was being diagnosed and treated.
Bird v. Saenz is an important case
because it is the most detailed definition of the tort of negligent
infliction of emotional distress by a bystander in a medical malpractice
case published to date.
