Huggins v. Longs Drug Stores California, Inc.

• Decision Date: 04 December 1992
• Docket Number: No. F016033,F016033
• Citation: 11 Cal.App.4th 550,14 Cal.Rptr.2d 77
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 11 Cal.App.4th 550, 16 Cal.App.4th 1215 11 Cal.App.4th 550, 16 Cal.App.4th 1215 Barbie HUGGINS et al., Plaintiffs and Appellants, v. LONGS DRUG STORES CALIFORNIA, INC., Defendant and Respondent.

Page 77

14 Cal.Rptr.2d 77

Previously published at 11 Cal.App.4th 550, 16 Cal.App.4th 1215

11 Cal.App.4th 550, 16 Cal.App.4th 1215

Barbie HUGGINS et al., Plaintiffs and Appellants, v. LONGS DRUG STORES CALIFORNIA, INC., Defendant and Respondent.

No. F016033.

Court of Appeal, Fifth District, California.

Dec. 4, 1992.

As Modified on Denial of Rehearing Dec. 30, 1992.

Review Granted Feb. 18, 1993.

Patricia Melugin Cousins, Modesto, for plaintiffs and appellants.

Donahue and Callaham, Gregory P. Matzen and Stephen J. Mackey, Sacramento, for defendant and respondent.

OPINION

BUCKLEY, Associate Justice.

In this opinion we hold that a pharmacist's provision of incorrect dosage amounts for a prescription which the pharmacist knows or should know will be administered to an infant by the infant's parents constitutes negligent action directed at the parent caregivers, which may allow recovery of damages for negligent infliction of emotional distress. Therefore, we will reverse the summary judgment entered against the parents as it was decided solely on the basis that the pharmacy owed no duty to them.

FACTUAL AND PROCEDURAL HISTORY

Appellants, Barbie and Robert Huggins, are the parents of Kodee, a child who at two months of age received an overdose of an antibiotic as a result of respondent pharmacy's negligence in providing instructions for medication dosage. ¹

Kodee's pediatrician prescribed the antibiotic, Ceclor, for an ear infection on October 9, 1989. His mother first administered Ceclor between 7 and 8 p.m. that evening; she repeated the dose in the early morning on October 10. She left for work at 6:30 a.m. and arrived home around 4 p.m. Noticing that Kodee was "out of it," she thought he was tired and that it was probably the medication. Kodee was unresponsive and appeared to be in a very deep sleep.

Thereafter, on October 10, Barbie Huggins received a call from her mother, who told her that she had learned there had been a horrible mistake and that Kodee had received an overdose. She instructed Barbie not to give the baby any more medicine. Barbie Huggins then called her husband, Robert, leaving word of the mistake and that Kodee was being taken to the pediatrician.

The parents sued defendant pharmacy for damages for the negligent infliction of emotional distress. In the complaint, the parents alleged that the pharmacy owed them a duty due to their relationship with the pharmacy. The parents also alleged that they resided with the child, obtained medical treatment for him, and cared for him.

At her deposition Barbie answered affirmatively when asked if her emotional distress started after her own mother had called her and advised her that there had been an overdose. However, in opposition to the motion, she submitted a declaration dated February 21, 1991, in which she stated that she observed her child's lethargy prior to knowing its cause, and she suspected that the medication caused it. His lethargy worried her but "not a lot."

Robert's declaration showed that his distress occurred after he learned that his son was receiving an overdose of Ceclor.

As to administration of the drug, Barbie Huggins stated in her declaration that she personally administered the drug October 9 and 10 but she was not sure if on the morning of October 10, she, her husband, or the day-care provider administered the medication; she thought it was probably she or her husband. She further declared that the pharmacist's mistake caused her to make her own son ill by administering the medication, and this shocked and grieved her. She still worries about the future effects of the overdose.

Although Robert saw his wife administer the drug in a dose of two and one-half teaspoons, he could not say if he gave the drug to Kodee himself; he did not recall ever doing so.

Ron Spolar, a pharmacist, stated at deposition that the dosage should have been half a teaspoon or two and one-half cc's rather than the two and one-half teaspoons on the prescription label. He stated that a pharmacist always has the duty to verify the quantity of a drug in filling a prescription.

Following a motion for summary judgment alleging the failure of the parents "to establish the elements necessary to support a cause of action for negligent infliction of emotional distress," the court granted the motion, concluding that the parents could not recover under a bystander theory (Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912) because "there is no contemporaneous connection between the negligent act and the injury" and "[p]laintiffs cannot recover under a 'direct victim' theory as the duty not to be negligent is owed to their child."

DISCUSSION

Summary judgment

With limited exceptions, there is no discretion to be exercised by a trial court in considering a motion for summary judgment; any error made is one of law, not of discretion. In reviewing an order entered on summary judgment, the reviewing court employs the same process as the trial court in determining whether, as a matter of law, summary judgment is appropriate. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513-1515, 285 Cal.Rptr. 385.) An appellate court independently reviews the declarations, reassessing the legal significance of the documents. After identifying the issues framed by the pleadings, the court determines whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in the movant's favor. In moving for a summary judgment, a defendant has the burden of establishing a complete defense to the plaintiff's action or conclusively negating a necessary element of the plaintiff's case and demonstrating that no material factual issue requires resolution by trial. (Id. at p. 1515, 285 Cal.Rptr. 385.) If a prima facie showing is made, then it must be determined whether the opposition demonstrates the existence of a triable, material factual issue. (Id. at p. 1513, 285 Cal.Rptr. 385.)

If the reason stated by the trial court for granting summary judgment is erroneous, a reviewing court will not disturb the ruling if the ruling itself is legally correct. If the ruling is right upon any theory of the law applicable to the case, it must be sustained. (Snider v. Snider (1962) 200 Cal.App.2d 741, 756, 19 Cal.Rptr. 709.)

The facts elicited in the motion and opposition thereto are not in material dispute. Instead, we are presented here with the legal interpretation to be given those facts brought before the court. Put another way, as a matter of law, given the undisputed facts, are the parents entitled to recover damages for negligent infliction of emotional distress (NIED) under either a bystander or direct victim theory?

The bystander theory

The law concerning what one must establish in order to recover for witnessing negligent infliction of injury upon another has undergone significant development in the last 25 years. In Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (Dillon), our Supreme Court permitted a parent to recover for emotional distress and physical injury resulting from witnessing the negligent infliction of injury upon her child. The court held that the defendant owed a duty to the plaintiff because of foreseeability, but it set forth guidelines for recovery. Among the guidelines set forth was whether or not the plaintiff's shock resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (Id. at pp. 739-741, 69 Cal.Rptr. 72, 441 P.2d 912.)

After Dillon, a plethora of cases were decided which, rather than further defining, created more uncertainty regarding NIED. (Thing v. La Chusa (1989) 48 Cal.3d 644, 656, 257 Cal.Rptr. 865, 771 P.2d 814.)

In Justus v. Atchison (1977) 19 Cal.3d 564, 585, 139 Cal.Rptr. 97, 565 P.2d 122, the court had occasion to consider a situation in which the injury (the death of a fetus before its birth) was hidden and the parent's shock resulted after being informed of the death. The court observed that the parent's shock did not result from a direct emotional impact from sensory and contemporaneous observance of the accident, but rather occurred after learning of the accident from others; recovery was denied.

In Ochoa v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1, the court permitted recovery for a mother who experienced emotional distress upon observing her son's medical needs being ignored by juvenile authorities when she visited him in custody prior to his death and requested medical treatment. The court stressed the highly uncommon circumstance of being forced to watch the neglect of a patient's immediate medical needs by medical personnel and the mother's awareness that medical neglect was causing her son's injury. Advocating the flexible application of Dillon criteria, the court ruled that where there is observation of the defendant's conduct and the child's injury and contemporaneous awareness that the defendant's conduct is causing harm to the child, recovery is permitted if it is clear that the defendants had every reason to foresee that the mother would be distressed by the conduct. (Id. at p. 170, 216 Cal.Rptr. 661, 703 P.2d 1.)

If Ochoa seemed to endorse a flexible approach based on foreseeability, Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, dispelled that impression. Although the narrow issue in Thing v. La Chusa was whether or not a mother who did not witness an automobile strike and injure her child could recover damages for emotional distress that she suffered when she arrived at the scene, the court expressly attempted to eliminate uncertainty in the law by defining the circumstances in which one may recover for negligent infliction of emotional distress. It rejected an ad hoc or case-by-case foreseeability approach. (Id. at pp. 663-664, 257 Cal.Rptr....