CHILDREN
MAY SUE FOR WITNESSING MALPRACTICE
TO PARENT
A medical malpractice case called Bird v. Saenz
resulted in an appellate opinion filed on January 11, 2001, and addresses
the questions of whether an incurable cancer is a defense to malpractice,
and further defines whether the children of a patient can recover for
their own emotional distress due to a physician’s malpractice while in
the hospital waiting room.
In Bird v. Saenz (2001) 01 CDOS 343, the
defendant physicians attempted to place a catheter in a patient with
ovarian cancer. The
subclavian artery and vein were transected and serious complications
resulted. While in the
waiting room, the patient’s daughters heard emergency calls for a
thoracic surgeon to assist, were told that complications had occurred, and
witnessed their mother being wheeled between the OR and the SICU with her
feet in the air, that her skin was purple, and that she was “blown up
like a balloon”. The
patient died eleven months later.
The defendant physicians argued that they were
entitled to summary adjudication because the patient’s cancer was
incurable at the time of the alleged negligence.
The court reversed the trial court order granting summary
adjudication on the ground that the declaration by the plaintiffs’
expert created a triable issue of fact when he stated that the alleged
negligence was a substantial factor in contributing to the patient’s
death eleven months later. The
court noted that a concurring cause of death, such as the patient’s
ovarian cancer, did not necessarily preclude recovery by a plaintiff for
medical malpractice.
The court also held that the daughters could sue for
negligent infliction of emotional distress because they knew that the
catheter placement had gone wrong and that their mother was suffering an
injury as a result when they saw her swollen and purple, and they believed
that they were witnessing their mother bleeding to death.
Bird
v. Saenz holds that a declaration that the alleged negligence
was a substantial factor in the death of a patient will defeat a summary
adjudication motion based on the argument that the patient would have died
anyway due to an incurable cancer. Bird
v. Saenz also defines the facts necessary to support a cause of action
by family members in a hospital waiting room who witness emergency efforts
to resuscitate the patient.
