Zavala v. Arce
| Decision Date | 27 October 1997 |
| Docket Number | No. D023269,D023269 |
| Citation | 58 Cal.App.4th 915,68 Cal.Rptr.2d 571 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 97 Cal. Daily Op. Serv. 8280, 97 Daily Journal D.A.R. 13,347 Diana ZAVALA, Plaintiff and Appellant, v. Jorge ARCE, Defendant and Respondent. |
Suppa, Highnote & Lee and Teresa Trucchi, San Diego, for Plaintiff and Appellant.
Lewis, D'Amato, Brisbois & Bisgaard, Marilyn R. Moriarty, James E. Friedhofer and Thomas M. Diachenko, San Diego, for Defendant and Respondent.
Plaintiff Diana Zavala appeals from a summary judgment in favor of defendant Jorge Arce, M.D. (Dr. Arce), her former obstetrician, on her first amended complaint for damages arising from the in utero death of her baby almost three weeks after the delivery due date. Zavala's amended complaint alleged three causes of action, named the father of the child (Gabriel Valdez) as a Zavala appeals, contending the summary judgment in favor of Dr. Arce should be reversed because the court erred in ruling as a matter of law she had not stated, and could not state a claim for "direct victim" emotional distress damages. We thus address the issue whether a mother can recover monetary damages under a "direct victim" theory of liability for emotional distress she has suffered as a result of the in utero death of her post-term fetus allegedly caused by the professional negligence of a physician with whom she entered into a physician-patient relationship for care during labor and delivery. Zavala further contends that because the court granted summary judgment solely on the ground she could not state facts sufficient to constitute a cause of action, we may not review de novo the issue of whether the evidence presented by the parties was sufficient to create a triable issue of material fact.
coplaintiff, and suggested in the title of the pleading that she was suing for wrongful death. 1 However, Zavala's appellate briefs clarify Valdez is not a party to this appeal, she is not suing for wrongful death damages, and her appeal is only directed to the dismissal of her own claim for emotional distress damages based on a "direct victim" theory of liability
We agree with Zavala's first contention, and conclude the first cause of action alleged in her amended complaint is sufficient to constitute a professional negligence cause of action under which emotional distress damages are recoverable based on a "direct victim" theory. Because the professional malpractice alleged in this action, if proved by a preponderance of the evidence, would constitute a breach of a duty of care owed to the mother (Zavala) as well as to her post-term fetus, we hold the mother has stated a claim for recovery of "direct victim" emotional distress damages resulting from the breach of the duty. For public policy reasons, however, the mother's recoverable damages do not extend to emotional distress resulting from the loss of her child's affection, society, companionship and love, or other similar loss of filial consortium.
Disagreeing with Zavala's second contention, we review de novo the merits of Dr. Arce's motion for summary judgment. We conclude there are triable issues of material fact whether the medical care Dr. Arce provided to Zavala and her post-term fetus fell below the standard of care applicable to obstetricians under the factual circumstances from which this action arose, and whether any such negligence was a legal cause of the death of the fetus and any emotional distress Zavala may have suffered as a result thereof. Accordingly, we reverse the judgment and remand this matter to the trial court for further proceedings.
On January 21, 1993, when she was approximately 17 weeks into her pregnancy, Zavala became Dr. Arce's patient. Dr. Arce's partner was Dr. Del Aguila. Dr. Arce told Zavala her estimated delivery due date was June 29, 1993.
On July 9, 1993, more than a week after Zavala's due date, Dr. Del Aguila examined her and wrote in her medical chart, "If not deliver [sic] in less than three days, possible induction." On July 12 Dr. Arce examined Zavala, who informed him Dr. Del Aguila was going to induce labor and she was prepared to go to the hospital for that purpose. Dr. Arce told her labor would not be induced at that time because her cervix had not sufficiently dilated. Dr. Arce wrote in Zavala's When Zavala returned the next day, July 13, Dr. Arce performed a sonogram. Although Dr. Arce testified during his deposition that the sonogram showed an amniotic fluid index of eight, Zavala testified during her deposition that Dr. Arce told her an eight was normal and although she had a five, indicating a low amniotic fluid level, there was no problem.
medical chart, "Plan sono[gram] to rule out oligohydramnios." 3
Dr. Arce next saw Zavala on July 15, at which time he told her he would induce labor and delivery of her baby on Saturday, July 17. Following Dr. Arce's instructions, Zavala admitted herself into the hospital at 5 p.m. on July 17. She had felt her baby move in the morning, and believed he was still alive when she arrived at the hospital. Dr. Arce arrived and ordered a sonogram, which showed Zavala had oligohydramnios with an amniotic fluid index in the "low millimeters" and confirmed the baby had died. Zavala believed her baby was alive and healthy until she learned from Dr. Arce her baby had died. Dr. Milgram replaced Dr. Arce as Zavala's obstetrician.
Zavala spent the night of July 17 in the hospital with the deceased fetus still inside her womb, and the stillbirth delivery took place the next day after labor was induced. After consulting with Dr. Milgram, Dr. Arce determined the cause of the fetal death was an abrupt umbilical cord compression.
As we have discussed, Zavala's operative first amended complaint alleges three causes of action on her own behalf: medical malpractice (first cause of action), negligent infliction of emotional distress based on a bystander theory of liability (second cause of action), and intentional infliction of emotional distress (third cause of action). We note again although the title of Zavala's amended pleading suggests her malpractice claim is based on a wrongful death theory of liability, her appellate reply brief clarifies she is not suing for wrongful death damages and she concedes her only potentially viable cause of action is her "direct victim" claim for emotional distress damages set forth in her first cause of action for medical malpractice. In her briefs Zavala also admits the father of her deceased baby (Valdez), who is named as a coplaintiff in her amended pleading, is no longer a party to this action. We thus limit our remaining discussion of the procedural history of this case to those matters affecting Zavala's purported "direct victim" claim for emotional distress damages.
With respect to her first cause of action for medical malpractice, Zavala alleged in paragraph 8 of her amended complaint that she had a patient-physician relationship with Dr. Arce for medical care for herself and her fetus during her pregnancy. In paragraph 9, she alleged Dr. Arce negligently breached a duty of care he owed to her by negligently causing the death of her unborn child. With respect to the elements of damages and causation, Zavala alleged in paragraph 10 that as a result of Dr. Arce's negligence she "suffered injury to her health, strength, and activities all of which injuries have caused, and continue to cause, [her ] great mental, physical, and nervous pain and suffering."
Dr. Arce filed a motion for summary judgment, asserting there was no merit to Zavala's action as a matter of law because she had not pleaded a claim for emotional distress under a "direct victim" theory. Dr. Arce also argued that Zavala's first cause of action was a wrongful death claim based on the death of a fetus; that Zavala admitted the fetus had died prior to delivery; and thus to allow Zavala to recover damages on a "direct victim" theory would impermissibly allow a Zavala opposed the motion for summary judgment and submitted the declaration of her expert witness, Dr. Trifunovic, who stated he had reviewed the medical charts and records, as well as the various deposition transcripts, and had concluded the care and treatment Dr. Arce had provided to Zavala fell below the standard of care. Dr. Trifunovic also stated it was his opinion that "labor should have been induced when requested (prior to the fetal demise)."
recovery for the death of a fetus contrary to the holding in Justus v. Atchison (1977) 19 Cal.3d 564, 580, 139 Cal.Rptr. 97, 565 P.2d 122, that a wrongful death action may not be maintained for the death of an unborn child. Dr. Arce further asserted he did not owe Zavala a duty of care, and Zavala was unable to present evidence creating a triable issue of material fact as to a breach of any standard of care and causation because she could not submit an adequate expert witness declaration.
In her written opposition, Zavala argued she had alleged a viable wrongful death claim notwithstanding the California Supreme Court's holding in Justus v. Atchison, supra, 19 Cal.3d at page 580, 139 Cal.Rptr. 97, 565 P.2d 122, that a wrongful death action may not be maintained for the death of an unborn child. Quoting from Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (), Zavala also argued she had properly pleaded a "direct victim" claim for emotional distress damages.
On September 30, 1994, the court issued a telephonic ruling granting Dr. Arce's motion for summary judgment. 5...
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