Sesma v. Cueto

• Decision Date: 16 February 1982
• Citation: 181 Cal.Rptr. 12,129 Cal.App.3d 108
• Court: California Court of Appeals Court of Appeals
• Parties: Dolores SESMA, et al., Plaintiffs and Appellants, v. Jose M. CUETO, M.D., et al., Defendants and Respondents. Civ. 24026.

Page 12

181 Cal.Rptr. 12

129 Cal.App.3d 108

Dolores SESMA, et al., Plaintiffs and Appellants, v. Jose M. CUETO, M.D., et al., Defendants and Respondents.

Civ. 24026.

Court of Appeal, Fourth District, Division 1, California.

Feb. 16, 1982.

West, Powell & Glass and Daniel P. Powell, Los Angeles, for plaintiffs and appellants.

Bonne, Jones, Bridges, Mueller & O'Keefe and Mark V. Franzen, Los Angeles, for defendants and respondents.

STANIFORTH, Associate Justice.

Plaintiffs Dolores and Ramon Sesma (Sesmas) appeal the dismissal of their complaint for wrongful death and emotional distress based on the death at birth of their infant child.

After answer and partial discovery, defendant Jose M. Cueto, M.D. was granted summary judgment as to both parties on both causes of action.

Defendant Mercy General Hospital has answered, did not seek a summary judgment, is not a party to this appeal. Plaintiffs contend, and we agree, that several material issues of fact remain, requiring trial.

FACTS

On August 26, 1978, Mrs. Sesma entered Mercy General Hospital to give birth under the medical supervision of Dr. Cueto. In her deposition, ¹ Mrs. Sesma relates her concern and apprehension upon perceiving she did not receive the medical care and attention as did the other patients around her. She was of the opinion Dr. Cueto and other medical staff were not adequately monitoring her progress in labor. After a considerable period of time had passed, a nurse did examine her but failed to detect a fetal heartbeat. The medical staff became noticeably Medical records reflect Dr. Cueto engaged in an unsuccessful 20-minute effort to resuscitate the child after removing it from the womb. In his declaration submitted in support of the motions for summary judgment, Dr. Cueto concludes Mrs. Sesma was delivered of "a stillborn fetus."

alarmed and Mrs. Sesma was given immediate medical attention. She was prepared for, given a spinal block, and underwent a Caesarean section. She does not recall whether she heard or saw the fetus. She was unable to understand the conversations taking place around her because she speaks no English.

DISCUSSION

I

The California Supreme Court said in Walsh v. Walsh, 18 Cal.2d 439, 441, 442, 116 P.2d 62:

"By an unbroken line of decision in this state since the date of the original enactment of section 437c [Code Civ.Proc.], the principle has become well established that issue finding rather than issue determination is the pivot upon which the summary judgment law turns. [Citations.] ... 'A motion for summary judgment is not a trial upon the merits. It is merely to determine whether there is an issue to be tried.' "

The same rule is in full force and effect today. (City of Chula Vista v. Pagard, 115 Cal.App.3d 785, 801, 171 Cal.Rptr. 738.)

In D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 20, 112 Cal.Rptr. 786, 520 P.2d 10, the Supreme Court explained:

" 'The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.' [Citation.]"

The trial court relied on Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122, for the rule that an action for wrongful death requires that the child be born alive. Justus so holds but in Justus the plaintiff conceded the feti were in fact stillborn. (Id., at p. 569, 139 Cal.Rptr. 97, 565 P.2d 122.) Here, that precise factual issue is surrounded by a conflict of inferences.

Mrs. Sesma's deposition statement that she never saw or heard the child delivered does not establish as a matter of fact that the child was born dead, since her lack of perception of that vital status is readily explained either by Dr. Cueto's occupation with the child in the resuscitation effort, or by Mrs. Sesma's anesthetized state.

Nor does Dr. Cueto's conclusionary statement that the fetus was stillborn meet the requirement for evidentiary facts. The doctor's statement is an ultimate fact or legal conclusion. Facts set forth to support a grant of summary judgment must be evidentiary in quality. (People v. Rath Packing Co., 44 Cal.App.3d 56, 62-63, 118 Cal.Rptr. 438.) Conclusionary affidavits are insufficient for this purpose.

Moreover, the moving parties' affidavits are to be strictly construed and in case of doubt the motion should be denied. (Loree v. Robert F. Driver Co., Inc., 87 Cal.App.3d 1032, 1035, 151 Cal.Rptr. 557.)

And counteraffidavits disclosing evidence or "inferences reasonably deducible from such evidence" of a triable issue of fact require the denial of the motion. (Maxwell v. Colburn, 105 Cal.App.3d 180, 185, 163 Cal.Rptr. 912.)

The doctor's conclusionary statement does not enlighten the court as to the child's vital signs, such as breathing, heartbeat, signs of cerebration, muscular activities or lack thereof. The Sesmas' attempts to gain such facts from the doctor were unsuccessful.

Moreover, reasonable inferences may be drawn from the medical records of the resuscitation effort and from Mrs. Sesma's deposition describing the attempted monitoring of the fetal heartbeat that the fetus was viable at the time of or very close to the time of delivery. On this record, the trial court should not have concluded there was no material issue of fact as to count one, the wrongful death cause of action.

II

As to the second cause of action for shock, emotional distress, we apply the same Walsh test: Is there a factual issue to be tried?

Dr. Cueto contends the " 'sensory and contemporaneous observance of the accident' requirement set forth in Dillon [Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912] and affirmed in Justus [has] not been met."

In Dillon the California Supreme Court held a mother who saw her young child struck and killed by the car of an allegedly negligent driver could state a cause of action for physical injuries suffered from the fright and shock of the event.

"[T]hree factors [which are] to be taken into account in making that determination [are]: whether the plaintiff and the victim were closely related, whether the plaintiff was present at the scene of the accident, and 'Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.' " (Justus, supra, 19 Cal.3d at p. 582, 139 Cal.Rptr. 97, 565 P.2d 122, citing Dillon, supra, 68 Cal.2d at pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.)

The question here is whether the second cause of action satisfies the last requirement and whether an unresolved factual issue remains.

The doctor's analysis of the facts disregards the issues of fact raised by Mrs. Sesma's deposition concerning her perception of and concern over the neglect she was receiving from medical personnel in the labor room, as contrasted to the care other patients were receiving. Such a perception could legitimately be found by a jury to constitute "emotional distress" as that term is defined by BAJI 12.72, as well as to give rise to an inference of neglect.

In the second place, the grant of summary judgment on the second cause of action was error because Mrs. Sesma's emotional distress could have been personally and directly sustained in her own right, as contrasted to injury sustained in her "bystander" capacity ² as a prospective mother distressed at injury inflicted upon her unborn fetus.

Although the issue of whether the Sesmas' baby was stillborn remains in factual dispute in count one, we note the recent decision which holds a plaintiff "can plead a valid cause of action for negligent infliction of emotional distress in a medical malpractice action resulting from the stillbirth of her child." (Johnson v. Superior Court, supra, 123 Cal.App.3d 1002, 1004, 177 Cal.Rptr. 63.)

Thus whether a fetus is a person for wrongful death purposes is not determinative of the issue here of whether the prospective mother can have a relationship with the fetus which would sustain a Dillon, supra, specie of cause of action for emotional distress where a parent witnesses the tortious death of a child.

...