Mercado v. Leong

• Decision Date: 16 February 1996
• Docket Number: No. C019426,C019426
• Citation: 43 Cal.App.4th 317,50 Cal.Rptr.2d 569
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 1645, 96 Daily Journal D.A.R. 2748 Adela R. MERCADO, Plaintiff and Appellant, v. Thomas LEONG, Defendant and Respondent.

Page 569

50 Cal.Rptr.2d 569

43 Cal.App.4th 317, 96 Cal. Daily Op. Serv. 1645,

96 Daily Journal D.A.R. 2748

Adela R. MERCADO, Plaintiff and Appellant, v. Thomas LEONG, Defendant and Respondent.

No. C019426.

Court of Appeal, Third District, California.

Feb. 16, 1996.

Review Denied May 15, 1996. ^*

Drivon & Tabak and Stewart M. Tabak, Stockton, and Harrington, Garretson & Connolly and Steve G. Garretson, Tracy, for Plaintiff and Appellant.

Schuering, Zimmerman, Scully & Nolen, Thomas J. Doyle, and Theodore D. Poppinga, Sacramento, for Defendant and Respondent.

BROWN, Associate Justice.

Plaintiff, Adela Mercado, appeals from a judgment in favor of her obstetrician, defendant Thomas Leong, in an action seeking damages for serious emotional distress resulting from a negligent delivery which inflicted permanent nerve damage upon her child. The trial court entered judgment in defendant's favor, notwithstanding a jury verdict awarding damages to plaintiff. In doing so, the trial court concluded it was bound by the decision in Bro v. Glaser (1994) 22 Cal.App. 4th 1398, 27 Cal.Rptr.2d 894, which requires a finding of outrageous conduct on the part of the defendant to award damages for negligent infliction of emotional distress, and the jury in this case did not so find. On appeal, plaintiff contends the trial court erred by applying the two-part test formulated in Bro and instead should have relied on the rule in Burgess v. Superior Court (1992) 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197 in determining the validity of her claim for negligent infliction of serious emotional distress. We agree with plaintiff and shall reverse.

FACTS

Defendant provided prenatal care to plaintiff and attended her for part of her labor on the morning of her delivery. Defendant checked plaintiff at 7:15 a.m., prescribed pain medication for her at 7:40 a.m., then left to perform elective surgery on another patient. Defendant was aware plaintiff had several risk factors which could indicate a difficult delivery; however, he did not anticipate any problems and was hoping to be finished with his surgical procedure and be back to do the delivery. Defendant did not arrange for another specialist to be available while he was gone.

A nurse called defendant about an hour later to tell him plaintiff was ready to deliver. Defendant told her to call Dr. Wong, a family practitioner, to assist in the birth. When Dr. Wong arrived, the delivery had begun without apparent problem; however, it soon became evident there was shoulder dystocia, i.e., the baby's shoulder was firmly lodged behind the pubic bone, preventing a routine delivery.

In order to reduce the dystocia, Dr. Wong ordered the nurses to apply fundal pressure, i.e., pressure at the top of the uterus. However, fundal pressure is contraindicated in dystocial reduction because it further impacts the shoulder against the bone, causing At trial, the parties discussed whether the jury should be instructed on outrageous conduct as suggested by the Bro decision. The parties agreed to handle the issue by providing a special verdict form, permitting the jury to make a separate determination of outrageous conduct after determining the negligence issues.

permanent damage to the brachial plexus, i.e., the bundle of nerves to the arm muscles, rather than the transient damage associated with a dystocia reduced by appropriate means. A specialist, like defendant, would have known this. As a result of the improper procedure, the child suffered permanent damage to his left arm.

The jury found defendant was negligent in caring for plaintiff, who suffered mental and emotional distress as a result, and awarded her $40,000 in damages. The jury further found defendant's negligent conduct was not outrageous.

Based on the latter finding, defendant moved for judgment notwithstanding the verdict, arguing that, under Bro, plaintiff could not recover for emotional distress. Plaintiff opposed the motion, arguing Bro was distinguishable on its facts and that the Supreme Court's decision in Burgess controlled this case.

The trial court rejected plaintiff's attempts to distinguish Bro on its facts and, concluding it was bound by Bro's holding that a defendant's conduct had to be outrageous for a plaintiff to recover for a claim of pure emotional distress without physical injury, granted defendant's motion for judgment. Accordingly, judgment was entered in defendant's favor on plaintiff's claim.

DISCUSSION

Plaintiff, in arguing the trial court erred in granting defendant's motion for judgment, reasserts her claim that recovery in this case is governed by Burgess, not Bro. We agree.

In Burgess, a mother sued to recover for severe emotional distress negligently inflicted by the physician who injured her child during labor and delivery. The Burgess court determined the physician owed a duty of care to the mother but for policy reasons, placed limits on recoverable damages.

The court stated: "We have repeatedly recognized that '[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply. [p] Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.' " (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197, original emphasis.)

Earlier decisions of the Supreme Court limited the theories of recovery for serious emotional distress damages in a negligence action to the "bystander" theory (Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912) and the "direct victim" theory (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813). Burgess observed that, in bystander cases, where a percipient witness to an injury seeks to recover, a defendant has a "duty not to negligently cause emotional distress to people who observe conduct which causes harm to another." (Burgess, supra, 2 Cal.4th at p. 1073, 9 Cal.Rptr.2d 615, 831 P.2d 1197.) Because such a duty could be limitless, the court, as a matter of policy, placed narrow limits on the class of bystanders who could recover. (Ibid.) However, in direct victim cases, "damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is 'assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.' " (Ibid.) Thus, the bystander limitations are unnecessary and "well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case." (Ibid.)

Burgess rejected any reading of the decision in Molien, discussing the direct victim theory, that would permit reliance solely on foreseeability to determine this duty, stating " '[I]t is clear that foreseeability ... alone is not a useful "guideline" or a meaningful restriction on the scope of [an action for damages The Burgess court had no difficulty in finding that, due to the nature of the relationship between mother and child, a "physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breached a duty owed directly to the mother." (2 Cal.4th at p. 1076, 9 Cal.Rptr.2d 615, 831 P.2d 1197.) Burgess found that once the scope of the duty of care from the physician to the mother was understood, the case resolved into an ordinary malpractice claim, in which the plaintiff sought damages for serious emotional distress. (Id. at p. 1077, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

for negligently inflicted emotional distress.]' " (Burgess, supra, 2 Cal.4th at p. 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197.) Burgess, however, reaffirmed Molien 's basic principles that a plaintiff may recover damages for emotional distress absent physical injury where a defendant negligently breaches a duty arising from a preexisting relationship with the plaintiff. (Ibid.)

Additionally, the Burgess court explicitly assessed the policy considerations supporting its direct victim theory. The court "recognized that several factors should be considered in determining the existence of a duty. The factors include: ' "the foreseeability of harm to the plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." ' " (2 Cal.4th at pp. 1079-1080, 9 Cal.Rptr.2d 615, 831 P.2d 1197.) The court concluded foreseeability of emotional distress in the case of negligent delivery was patently obvious, the physician's conduct was closely related to the emotional injury, the degree of moral blame was the same as in any malpractice action, imposition of liability would prevent future harm and the consequences of liability did not present an undue burden in light of legislative limits on liability and judicial limits on the class of potential plaintiffs. (Id. at pp. 1080-1084, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

Soon after its decision in Burgess, the Supreme Court took the opportunity to refine the direct victim theory in Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 24 Cal.Rptr.2d 587, 862 P.2d 148. In Huggins, a pharmacist incorrectly labeled a child's prescription, resulting in a severe overdose. (Id. at p. 127, 24 Cal.Rptr.2d 587, 862 P.2d 148.) The...