Jansen v. Children's Hospital Medical Center

Decision Date08 March 1973
Citation31 Cal.App.3d 22,106 Cal.Rptr. 883
PartiesJanice JANSEN, Plaintiff and Appellant, v. CHILDREN'S HOSPITAL MEDICAL CENTER OF the EAST BAY, Defendant and Respondent. Civ. 30986.
CourtCalifornia Court of Appeals Court of Appeals

Sangster & Hardy, San Francisco, for plaintiff and appellant.

Joseph Rankin, Oakland, for defendant and respondent.

DRAPER, Presiding Justice.

Plaintiff mother, as special administratrix, sought damages for the wrongful death of her five-year-old daughter, allegedly resulting from the malpractice of respondent hospital. She added a count for emotional trauma and allegedly resulting physical injury, caused to the mother individually by witnessing the progressive decline and ultimate death of her daughter in the hospital. The hospital demurred to the count seeking damages for the mother's injury. The demurrer was sustained without leave to amend, the count was dismissed, and plaintiff appeals. This appeal concerns only the individual rights of the mother for her own alleged injuries.

The complaint alleges that: the daughter, suffering from some unspecified ailment, was admitted to the hospital at a date not specified; defendant agreed to 'diagnose and treat' the daughter; it 'negligently discharged those obligations' and as a proximate result the child died in the hospital. It is also alleged that the mother accompanied her child to the hospital, 'stayed with her for extended periods of time during her hospitalization'; 'witnessed (her) last hours and her death'; the child 'died painfully * * * from what was subsequently diagnosed as a massive gastro-intestinal hemorrhage due to a penetrating duodenal ulcer.'

The issue is the application of a 1968 decision (Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912). Dillon for the first time in this state established the rule that a mother who 'was in close proximity' and was an eyewitness to the striking of her child by an automobile could recover for physical injury resulting from emotional shock caused to her, even though the mother was not herself in the 'zone of danger.' Our question is whether the rule of Dillon extends to this situation, in which there was no impact, but either a failure to diagnose or an erroneous diagnosis of a pre-existing condition.

Dillon, recognizing the need to 'limit the otherwise potentially infinite liability which would follow every negligent act,' sets up three guidelines for determining foreseeability of injury to another than the person actually struck. The first two of these are 'whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it,' and whether the shock 'resulted from * * * the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.'

This language contemplates a sudden and brief event causing the child's injury. More important to the facts before us, however, the two quoted conditions emphasize the need that the event causing injury to the child must itself be one which can be the subject of sensory perception. Appellant seeks the construction that visibility of the result, as...

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38 cases
  • Nazaroff v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • May 1, 1978
    ...the intervening decisions. (See Deboe v. Horn (1971) 16 Cal.App.3d 221, 223-224, 94 Cal.Rptr. 77; Jansen v. Childrens' Hospital Medical Center (1973) 31 Cal.App.3d 22, 23-25, 106 Cal.Rptr. 883; Powers v. Sissoev (1974) 39 Cal.App.3d 865, 870-874, 114 Cal.Rptr. 868; Hair v. County of Montere......
  • Justus v. Atchison
    • United States
    • California Court of Appeals Court of Appeals
    • December 9, 1975
    ...from such observation did not occur until they were informed that their sons had been born dead. (Cf. Jansen v. Children's Hospital Medical Center, 31 Cal.App.3d 22, 24, 106 Cal.Rptr. 883.) They did not know that these deaths had occurred until they were so informed. There was, therefore, n......
  • Justus v. Atchison
    • United States
    • California Supreme Court
    • June 8, 1977
    ...condition. The court held that on these facts no cause of action could be stated under Dillon. In Jansen v. Children's Hospital Medical Center (1973) 31 Cal.App.3d 22, 106 Cal.Rptr. 883, a mother watched the slow but progressive deterioration and ultimate death of her hospitalized child, al......
  • Amodio v. Cunningham
    • United States
    • Connecticut Supreme Court
    • August 12, 1980
    ...situations where the injury to the third party is manifest contemporaneously with the negligent act. In Jansen v. Children's Hospital Medical Center, 31 Cal.App.3d 22, 106 Cal.Rptr. 883, the mother of a five-year-old child alleged a cause of action for physical and emotional trauma caused b......
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