ANISODON v. MERCY HOSPITAL AND MEDICAL CENTER

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

Michelle ANISODON et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent. MERCY HOSPITAL AND MEDICAL CENTER et al., Real Parties in Interest.

No. D014081.

Decided: September 16, 1991

Heppner & Elwood, George C. Heppner and Paul J. Jackson, San Diego, for Petitioners. No appearance for respondent. Lewis, D'Amato, Brisbois & Bisgaard, Douglas R. Reynolds, Thomas M. Diachenko, James E. Friedhofer, Greines, Martin, Stein & Richland, Martin Stein, Timothy T. Coates, Roxanne Huddleston, Beverly Hills, McInnis, Fitzgerald, Rees, Sharkey & McIntyre, Cary W. Miller, Marianne Barth, Ault, Deuprey, Jones and Gorman, Mark L. Brandon and Mark Dea, San Diego, for real parties in interest.

The mother and father of a child who sustained birth injuries that left her a spastic quadriplegic seek extraordinary relief after the trial court sustained, without leave to amend, demurrers by the hospital and attending physicians to the first amended complaint in this medical malpractice action.   The parents contend that under the principles of Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (hereafter Molien ) and Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278 (hereafter Marlene F.), and pursuant to Code of Civil Procedure section 376,1 they may state causes of action for negligence to recover for their individual emotional distress.   On April 18, 1991, we issued an order to show cause and calendared argument.

Since plaintiff Michelle Anisodon (Mother), the mother of the damaged child Jennifer Guertin (Jennifer), has pled she was a patient of the physicians and individually received negligent care of her condition in labor and delivery, we conclude she, as a member of the family unit of mother and child at delivery, has pled sufficient facts to state a cause of action to recover for the negligent infliction of emotional distress upon her.   However, we conclude Jennifer's father, Lawrence Guertin (Father), has not stated the necessary facts to support such a theory.   Moreover, neither parent has claimed any type of damages that is separately recoverable under section 376.   We grant the petition for writ of mandate to allow Mother to pursue her individual cause of action for negligent infliction of emotional distress in the manner allowed by the authority of Marlene F. while denying the balance of the petition.

FACTUAL AND PROCEDURAL BACKGROUND

As this petition comes to us from an order sustaining demurrers without leave to amend, we shall accept as true all material and properly pleaded facts of the complaint.  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)   These facts reveal that Jennifer was born by Caesarean section on May 11, 1986, while Mother and ultimately Jennifer were under the care of physicians L. Dale Lapp, Gary O'Hara, Bertha Gee Lew, Bruce Barshop and E. Lawrence Hoder at Mercy Hospital and Medical Center (collectively, physicians).2  Father was present during labor and delivery.   Ultrasonography that was performed before delivery indicated Jennifer was in a breech position with a transverse lie.   During the Caesarean section surgery, an improper uterine incision caused Jennifer's head to be trapped.   The incision was not extended when necessary, and the physicians applied excessive force or traction on Jennifer's body while her head was trapped.   The physicians also allegedly failed to render prompt post-delivery care.

Jennifer's physical condition was not immediately diagnosed.   She was originally thought to have either cerebral palsy or spasticity resulting from a brain injury.   In 1988, a newly available magnetic resonance imaging (MRI) scan revealed Jennifer had an old cervical cord injury, which was confirmed by surgery.   She is now diagnosed as having spastic quadriplegia resulting from an injury to her cervical spinal cord.

In the first amended complaint, Jennifer, through her mother as guardian ad litem (§ 372), alleges her own medical malpractice cause of action.   She seeks general damages, including pain and suffering and reduced life expectancy and enjoyment, medical expenses, and compensation for her loss of earnings and earning capacity.

Mother asserts two causes of action on her own behalf.   The second cause of action realleges the facts set forth by Jennifer and alleges Mother, as a patient of the physicians regarding her pregnancy and delivery, was negligently diagnosed and treated.   As a proximate result of the negligently performed medical services, and as a result of Jennifer's condition, Mother alleges she has suffered severe emotional and mental stress.

Mother characterizes her physician-patient relationship in several ways:  first, as “a special relationship in the law by which the [physicians] could have and should have foreseen that their improper and negligent acts ․ would cause her severe emotional distress․”  She further alleges this relationship was contractual in nature, “in that there was an agreement to provide medical services ․ which contained an implicit provision that said services would be rendered competently and without deviations from the recognized and accepted standards of medical care.”   Mother then makes the allegation that “by virtue of her patient/physician relationship with the [physicians], [she] was a direct victim of [their] conduct.”   Her “severe mental, physical and nervous pain and suffering resulting in her disability” are then alleged to be a direct and proximate result of the breach of contract and negligence.   General damages and reimbursement of out-of-pocket expenses (except for medical expenses and loss of the minor child's earnings) are sought.

Mother next brings a separate cause of action, the third, entitled “Emotional Distress Pursuant to C.C.P. 376 3 —Mother.”   In addition to repeating the previous allegations, Mother pleads she “․ has a duty to care for and heal her child who suffered serious and permanent injuries as a result of [the physicians'] negligence․  This additional burden, separate and apart from the burden of a parent to raise a physically healthy child, has caused [Mother] to suffer additional emotional distress.”   She seeks general damages for pain and suffering and reimbursement of out-of-pocket expenses, as above.

Father also brings his own two causes of action.   His claim under section 376 (the fifth cause of action) is the same as Mother's, described above.   In his separate cause of action for negligent infliction of emotional distress (the fourth), he is of course unable to allege he was a patient of the physicians.   However, he claims he “conferred with the [physicians] with regard to the condition of [Mother] and the impending birth of his daughter, was present during certain diagnostic tests, was present when [Mother] began her labor prior to arriving at the hospital, arrived at the hospital, and was present in the operating room before and during a Caesarean section performed on [her].”   He claims “due to his presence during [Mother's] obstetrical care ․ he became a direct object of the medical care ․ and a special relationship ․ was formed․”

In series, the physicians (including the hospital) 4 generally demurred to all causes of action brought by the parents as individuals.   In sustaining all demurrers without leave to amend,5 the trial court reasoned the parents could not recover emotional distress damages because they did not contemporaneously observe the injury.

DISCUSSION

Although in general an appellate court will be reluctant to extend extraordinary relief at the pleadings stage of an action, mandamus will lie “when it appears that the trial court has deprived a party of an opportunity to plead his cause of action or defense, and when that extraordinary relief may prevent a needless and expensive trial and reversal [citations].”   (Coulter v. Superior Court (1978) 21 Cal.3d 144, 148, 145 Cal.Rptr. 534, 577 P.2d 669.)   Under these circumstances, “mandamus is available as a remedy and we inquire into the propriety of the trial court's ruling.”  (Ibid.)

“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory․  [Citations.]”  (Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149, 153, 276 Cal.Rptr. 470.)   We shall first decide the extent to which Mother's claim she was a “direct victim” and Father's claim he was a “direct object” of the medical negligence are proper under Marlene F.   We then address the scope of the relief that may be sought by parents of an injured child under section 376.

I

Our discussion of the “direct victim” theory of liability for negligent infliction of emotional distress is guided by the principles outlined in two such cases, Molien, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, and Marlene F., supra, 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278.   In addition, the views expressed by the Supreme Court in several “bystander” cases involving claims for negligent infliction of emotional distress (Dillon v. Legg (1968) 68 Cal.2d 728, 741, 69 Cal.Rptr. 72, 441 P.2d 912;  Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, 216 Cal.Rptr. 661, 703 P.2d 1 (hereafter Ochoa );  Thing v. La Chusa (1989) 48 Cal.3d 644, 647, 257 Cal.Rptr. 865, 771 P.2d 814 (hereafter Thing )) provide valuable insights into the current status of this tort.6

 Certain principles are common to both varieties of this cause of action.   The negligent causing of emotional distress is not an independent tort but the tort of negligence.  (Marlene F., supra, 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278;  see 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 838, p. 195.)  “ ‘The traditional elements of duty, breach of duty, causation, and damages apply.  [¶] Whether a defendant owes a duty of care is a question of law.   Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.”  (Marlene F., supra, at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278, citing Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1249, 209 Cal.Rptr. 189.)

In Molien, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, the Supreme Court permitted a husband to plead entitlement to emotional distress damages suffered when his wife's doctor erroneously diagnosed her as suffering from a sexually transmitted disease and affirmatively acted to have the misdiagnosis communicated to him.   The court held the husband was a “direct victim” (id. at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813) of the doctor's negligence because, by directing that the husband be told of a diagnosis that foreseeably would disrupt the marital relationship and require him to be physically examined, the doctor assumed a duty to convey accurate information.

In Ochoa, supra, 39 Cal.3d 159, 172, 216 Cal.Rptr. 661, 703 P.2d 1, the Supreme Court explained that in Molien, supra, the defendant doctor's misdiagnosis was, “by its very nature” directed at both the wife (the patient) and her husband.   The court then distinguished the facts in Ochoa, where the alleged medical malpractice was directed “primarily” at the plaintiffs' deceased son, whose parents were helpless bystanders during his final illness.  (Ochoa, supra, 39 Cal.3d at p. 173, 216 Cal.Rptr. 661, 703 P.2d 1.)   The parents were allowed to plead a bystander theory but not a direct victim theory.  (Id. at pp. 165, fn. 6, 172, 216 Cal.Rptr. 661, 703 P.2d 1.)

In Marlene F., supra, 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278, a majority of the Supreme Court held that the mothers of two boys who were molested by a therapist, at a time when both mother and child were under ongoing treatment by the therapist for intrafamily problems, were entitled to state a cause of action against the therapist for damages for their own severe emotional distress.   The court emphasized that the therapist's abuse of the professional relationship breached his duty of care to the mothers as well as to the children, and that the tortious conduct was directed against both.   (Id. at p. 591, 257 Cal.Rptr. 98, 770 P.2d 278.)   The majority also noted that the existence of the contract for services between the parties “bolsters ” the mothers' showing of a duty of care owed to them.  (Id. at p. 592, fn. 7, 257 Cal.Rptr. 98, 770 P.2d 278.)” 7

However, as pointed out by Justice Eagleson's concurring opinion in Marlene F. (joined by two other members of the court), the majority refrained from basing its finding of breach of duty on the underlying tort of professional malpractice, instead relying on unspecified negligence as the basis for the claim.  (Id. at pp. 599–601, 257 Cal.Rptr. 98, 770 P.2d 278.)

Thing, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (issued the same month as Marlene F.) is a definitive opinion setting forth the criteria for a successful pleading of a claim of negligent infliction of emotional distress in the bystander context.   In that case, the Supreme Court set out clear policy statements to be applied to this theory of recovery.   In defining the applicable duty, and in requiring that a defendant's potential liability must bear a reasonable relationship to his or her culpability (Thing, supra, at p. 667, 257 Cal.Rptr. 865, 771 P.2d 814), the court explained:

“It is apparent that reliance on foreseeability of injury alone in finding a duty, and thus a right to recover, is not adequate when the damages sought are for an intangible injury.   In order to avoid limitless liability out of all proportion to the degree of a defendant's negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread, the right to recover for negligently caused emotional distress must be limited.”  (Id. at p. 664, 257 Cal.Rptr. 865, 771 P.2d 814.)

In its analysis in Thing, with respect to defining the elements of a bystander cause of action, the court commented, “drawing arbitrary lines is unavoidable if we are to limit liability and establish meaningful rules for application by litigants and lower courts.”  (Thing, supra, 48 Cal.3d at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814.) 8

A number of opinions by the various courts of appeal have addressed the issue of whether parents of children who are injured or who are born with birth defects can plead causes of action based on Molien, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   In Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 208 Cal.Rptr. 899, the parents of a child who suffered from Down's Syndrome were considered to be direct victims of a physician's negligent failure to detect the syndrome before the birth.   The court, relying on a theory of tortious breach of contract created by Biakanja v. Irving (1958) 49 Cal.2d 647, 650, 320 P.2d 16, reasoned the physician had a contractual duty to the mother to diagnose the condition and advise her accordingly.   The father's injury was not derivative of the mother's but “flow[ed] from his role as a participant in the reproductive life of the marital couple and its lawful choices.”  (Andalon v. Superior Court, supra, 162 Cal.App.3d at p. 611, 208 Cal.Rptr. 899, fn. omitted.)

Relying on Andalon, the court in Newton v. Kaiser Foundation Hospitals (1986) 184 Cal.App.3d 386, 228 Cal.Rptr. 890, allowed the parents of a child left partially paralyzed from excessive traction during delivery to plead entitlement to emotional distress damages because “the mother had a contract with Kaiser by which it undertook, for consideration, to provide care and treatment for the delivery of a healthy fetus.”  (Id. at p. 392, 228 Cal.Rptr. 890.) 9  The father similarly was allowed to state a cause of action because the doctor-patient relationship with the mother necessarily implicated his own interests.10  (Also see Sesma v. Cueto (1982) 129 Cal.App.3d 108, 115–116, 181 Cal.Rptr. 12;  Johnson v. Superior Court (1981) 123 Cal.App.3d 1002, 1007, 177 Cal.Rptr. 63.)

Other courts of appeal have found Molien inapplicable to certain claims by parents based on injury to their children.   In Martinez v. County of Los Angeles (1986) 186 Cal.App.3d 884, 231 Cal.Rptr. 96, the parents of a child allegedly brain-damaged at birth through physicians' negligence could not state a cause of action for their own emotional distress incurred in “restructuring their lives” to care for the child.  (Id. at pp. 887–888, 231 Cal.Rptr. 96.)   Although the mother had of course been a patient who received medical treatment during the disastrous delivery, the parents did not allege any cause of action for medical malpractice in their own right.  (Id. at p. 893, 231 Cal.Rptr. 96.)   Nor did they plead any entitlement to damages under section 376.   Accordingly, the court found the particular pleadings failed to allege conduct by physicians directed to the parents that elicited serious emotional response.   Moreover, the damages sought by the parents for their care and attention to the needs of the child were held to be duplicative of damages sought by the child for extraordinary care in his own cause of action.  (Id. at p. 894, 231 Cal.Rptr. 96.)

In a converse situation, our court in Holliday v. Jones (1989) 215 Cal.App.3d 102, 111–112, 264 Cal.Rptr. 448 held that children of a person who received negligent services of an attorney were not entitled to recover damages for negligently inflicted emotional distress stemming from the malpractice.   The children did not qualify as bystander plaintiffs (not having witnessed the services) nor as direct victims, since the attorney's malpractice was in no sense “directed” at them.  (Ibid.)  In Holliday, we set forth a synthesis of the cases in which recovery for negligently inflicted emotional distress damages may be allowed:

“[I]t would appear that in order to recover for negligently inflicted emotional distress damages, a plaintiff must either have a special relationship to the defendant (Marlene F.), be the direct object of some aspect of the defendant's conduct (Molien ) or personally witness a negligently caused physical injury to a closely related primary victim (Dillon;  Ochoa;  Thing ).”  (Id. at p. 111, 264 Cal.Rptr. 448.)  11

In Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, 1427–1428, fn. 4, 273 Cal.Rptr. 270, which was primarily a bystander case involving parents who watched their child suffer and die from an overdose of therapeutic radiation, the court declined to consider the parents to be “direct victims” of the negligent performance of a contract for medical care.   Further, the parents were found not to qualify as proper bystander plaintiffs.

In Schwarz v. Regents of University of California, supra, 226 Cal.App.3d 149, 276 Cal.Rptr. 470, where a child's father sought emotional distress damages in an action for negligent psychiatric treatment of the child, the court found no conduct by the defendants had been specifically directed at the plaintiff (thus precluding a Marlene F.-type claim), and also rejected the contractual theory of liability to parents.   Reasoning a physician-patient relationship with a child “will always implicate some interests of the parents, [ ] it does not follow logically that the implication of those interests necessarily justifies imposing a duty of care owed to the parents.”   (Schwarz, supra, 226 Cal.App.3d 149 at p. 168, 276 Cal.Rptr. 470.)   The court criticized Newton (supra, 184 Cal.App.3d 386, 228 Cal.Rptr. 890) as “a nearly limitless extension of liability,” opining that parental interest in the birth of a healthy infant is no different from parental interest in the continued well-being of a living child.  (Schwarz, supra, 226 Cal.App.3d at p. 167, 276 Cal.Rptr. 470.)

With all of these diverse opinions in mind, and in the spirit of Thing, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 and its requirement that the potential liability of a defendant must bear a reasonable relationship to his or her culpability (id. at p. 667, 257 Cal.Rptr. 865), we consider whether these parents may state any cause of action on their own behalf.   In Marlene F., supra, 48 Cal.3d 583, 257 Cal.Rptr. 98, the majority opinion placed great emphasis on the joint nature of the therapeutic treatment accorded to the mothers and sons:  “In other words, the counselling was not directed simply at each mother and son as individuals, but to both in the context of the family relationship.”  (Id. at p. 590, 257 Cal.Rptr. 98.)   The court even characterized the parent-child relationship as an entity under the care of the therapist.   (Id. at p. 591, 257 Cal.Rptr. 98.)   Thus, the plaintiff mothers were treated as part of a family unit, whose individual interests were unavoidably harmed when another member of the family was harmed in the course of the joint treatment.

 We believe a principled reading of the authority, particularly Marlene F., requires us to conclude that Mother, under these circumstances of labor and delivery, was part of a family unit which received joint treatment, such that medical negligence directed at herself and her infant during the birth process may be pled to have caused harm to the mother's individual interests.   The purpose of this joint treatment, it may be said, was to accomplish the birth process to deliver the child in whatever condition she was created and nurtured, leaving both mother and child unimpaired by outside intervention or negligence.   In this case, Mother has alleged that she, as well as her child, was a victim of medical malpractice;  Mother received an improper uterine incision.   She has alleged the physicians failed to properly care for and treat her, which negligent treatment, along with the condition of her daughter, caused her severe emotional and mental stress.

It is thus evident that Mother has pled facts supporting her individual right to recover as a “direct victim” for severe emotional distress resulting from the alleged malpractice of the physicians, and that not all of her damages flow from empathy with her damaged child.   To this extent, Martinez v. County of Los Angeles, supra, 186 Cal.App.3d 884, 231 Cal.Rptr. 96, is distinguishable.   This pleading reveals that injuries personal to Mother, arising from her treatment, support her claim to recovery;  more than damages for loss of filial consortium (which is never compensable under Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871) is sought here.12  The amended complaint thus states a recognized theory of recovery as to Mother and the demurrer should not have been sustained without leave to amend.  (Schwarz v. Regents of University of California, supra, 226 Cal.App.3d 149, 153, 276 Cal.Rptr. 470.)

We should not allow the unique nature of childbirth, the initial unity and eventual separation of mother and child, to distract us from a recognition of the separate legal interests held by mother and baby.   The medical malpractice, as alleged, violated separate primary rights of both mother and child, and should be actionable by both.13

In our conclusions reached above, we have relied on the existing doctor-patient relationship between Mother and the physicians to support our finding that Mother falls within the description of those plaintiffs who are permitted rights of action under Marlene F.   We have not found it necessary to rely on the two other characterizations made in Mother's pleading of the doctor/patient relationship as contractual or “special.”  (See fn. 11, ante, explaining the limited sense in which this relationship was “special.”)   For purposes of analyzing this pleading, we find the existence of professional duties is adequately pled with respect to the two patients, Mother and Jennifer, and the alleged contractual relationship merely “bolsters” that showing of duty.  (See Marlene F., supra, 48 Cal.3d at p. 592, fn. 7, 257 Cal.Rptr. 98, 770)  In accordance with the views expressed above, we shall grant the petition as to Mother's second cause of action.

 Turning next to the issue of Father's right to recover damages as a “direct object” of the medical care afforded his child and her mother (the fourth cause of action), we can only conclude that in no sense was the allegedly negligent medical care “by its very nature” (Ochoa, supra, at p. 172, 216 Cal.Rptr. 661, 703 P.2d 1) directed at him.   He was not required to take further action with regard to examination of his person, as was Mr. Molien.   He was not a patient, nor for the specialized purposes of the theory enunciated in Marlene F., a member of the family unit that was undergoing joint treatment.   Nor was he a bystander who may justifiably claim recovery.   (See Justus v. Atchison (1977) 19 Cal.3d 564, 585, 139 Cal.Rptr. 97, 565 P.2d 122;  disapproved in part by Ochoa, supra 39 Cal.3d at p. 171, 216 Cal.Rptr. 661, 703 P.2d 1.)   While Father's emotional distress from these sad facts is unquestionably as real and as deep as is that of the child's mother, Father simply does not qualify as a patient in joint treatment to whom particular duties were owed.   These factors, and the policy considerations set forth in Thing (supra, 48 Cal.3d at pp. 664, 667, 257 Cal.Rptr. 865, 771 P.2d 814) that arbitrary lines must sometimes be drawn in order to insure that a particular defendant's liability will be proportionate to his or her culpability, mandate our conclusion that Father's claim is without foundation in authority.   The petition is thus denied on this point.

II

 We next address the merits of the parents' individual causes of action which seek recovery of emotional distress damages under section 376.   At oral argument on the petition, counsel for the parents conceded that no other form of damages was being sought by the parents in these causes of action.

Section 376 has a long and venerable history dating from 1872;  it resolves a number of procedural problems that arise when a minor child is injured and suit is brought.   As noted above (see fn. 3, ante ) those problems include designation of the proper party plaintiff, joinder of the parents, survival of the cause of action, consolidation with related actions, and the measure of damages to be awarded:  “such damages ․ as under all of the circumstances of the case may be just.”  (§ 376.)   For our purposes, only the first and last of these topics are relevant.

 Early cases, such as Durkee v. C.P.R.R. Co. (1880) 56 Cal. 388, 392–394, interpreted section 376 to mean that two rights of action exist:  one on behalf of the injured minor, for the injury personal to him- or herself (such as pain and suffering and disfigurement), and one by the parent, for medical expenses and loss of the child's services during minority.14  (Id. at p. 392.)   Accordingly, the parent may not recover for the pain and suffering of the minor.   Where the minor sues on her own behalf and recovers her medical expenses, the parents are held to have waived their rights to recover the same expenses and are estopped from a double recovery.   (Shriver v. Silva (1944) 65 Cal.App.2d 753, 768, 151 P.2d 528.)   It has been held that a cause of action to recover medical expenses incurred due to a minor's personal injuries belongs to both the parents and the minor (White v. Moreno Valley Unified School Dist. (1986) 181 Cal.App.3d 1024, 1030, 226 Cal.Rptr. 742);  this conclusion is subject to the waiver rule outlined above.   The premise of any cause of action under section 376, according to these analyses, appears to be an injury to the child which may also result in consequential damages to the parent, such as medical expenses.  (See Civ.Code, §§ 197, 206, regarding a parent's duty to support his or her child.)

Such consequential damages to the parent have never been held to include recovery for the parent's emotional distress damages.   In Kalleg v. Fassio (1932) 125 Cal.App. 96, 99, 13 P.2d 763, the court held a parent could not recover damages for his “ ‘grief, sorrow, or resentment’ ” felt when he viewed the effects of scarring or disfiguring injuries on his children or spouse.   The court held that since the child has his or her own right of action for such injuries, the parent could not recover the same damages;  the principle was then extended to the spouse.   The authors of the Restatement Second of Torts (1977) § 703, pp. 510–513) are in agreement, stating a parent suing for injury to a minor child is entitled to damages for loss of the child's services and for medical services furnished.   However, the comment continues:

“The parent is not entitled to recover for any emotional distress suffered by him as a result of the child's injury, nor is he entitled to recover for emotional distress or physical suffering of the child.”   (Rest.2d Torts, supra, § 703, p. 513.)

A similar statement is made in 19 California Practice (1991) Tort Law, section 24.12, page 485, with the explanation that the rule is intended to avoid a double recovery.  (Also see Annot., Damages—Infant—Parent (1953) 32 A.L.R 2d 1060, 1078.)

In this case, Jennifer has brought her own cause of action for medical expenses and loss of earning capacity, as well as her personal items of damage.   Thus, although the parents could have brought such an action on her behalf in their own names, they did not do so, nor were they required under section 376 to do so.   Their causes of action seek damages personal to them, which are not related to pecuniary loss directly incurred due to the child's injuries.   Although the parents conceivably could have sought items of damages on their own behalf that would have been allowed by section 376 (e.g., pecuniary loss of the child's services during minority or possibly medical expenses special to the parents), such was not pled.

Because of the rules outlined above, we disagree with the categorical statement in Martinez v. County of Los Angeles, supra, 186 Cal.App.3d at p. 894, 231 Cal.Rptr. 96, that damages arising from emotional distress caused by “the hardship thrust upon parent plaintiffs by defendant's negligence” (ibid.) would always be duplicative of damages that may be recovered by a minor plaintiff for extraordinary care.   In Martinez, the parents did not make any claim under section 376 nor any claim on their own behalf, such as medical malpractice, except for their emotional distress arising from the negligent treatment of their son and their resulting inability to lead a normal life.   Since they were not found to be direct victims of the alleged medical malpractice toward the son, they were found not to have stated any cause of action individually.   Our case presents different pleadings and, accordingly, different rules apply.

Nevertheless, these parents have failed to seek damages that are a recognized item of recovery under section 376.   Since only emotional distress damages are pled in these causes of action, there is a danger of double recovery because of the separate claims made by the injured child and by the mother in her capacity as a patient in the joint treatment afforded mother and daughter.   Such a double recovery would not be “just” as required by the measure of damages set out in section 376.   Accordingly, the demurrers to the third and fifth causes of action were correctly sustained without leave to amend.

DISPOSITION

Petition granted in part as to the second cause of action and denied as to the balance.

I have no quarrel with the majority's disposition of Lawrence's negligence cause of action and the parents' statutory causes of action under Code of Civil Procedure section 376.   However, I cannot agree Michelle has any damages other than those empathetic to her child, and respectfully dissent from those portions of the opinion.

My disagreement is both particular and general.   I believe that by focusing on the lone allegation of “improper uterine incision,” in this complaint the majority erroneously determines Michelle has pleaded sufficient facts to be a “victim of medical malpractice.”   More generally, and more importantly, by setting the standard of required pleading so low, the majority creates a new class of direct victims eligible to recover for emotional distress—mothers whose infants are injured by malpractice during birth.   I believe the former error distorts this complaint.   The second distorts the law.

Putting aside the obvious pitfalls in differentiating between Michelle's emotional distress from an “improper uterine incision” and her emotional distress from caring for her injured child 1 , I emphasize the context in which the allegation is raised.   The allegation is initially made not in the context of Michelle's injuries (i.e., physical harm) but to establish proximate cause of her child's injuries, as follows:

“[Physicians] so negligently and carelessly examined, diagnosed, cared for, treated and rendered medical services upon the person and body of the plaintiff JENNIFER GUERTIN, and so carelessly and negligently operated, managed, controlled and conducted their services and activities in connection with the plaintiff's care and treatment that as a direct and proximate result thereof plaintiff JENNIFER GUERTIN was caused to and suffered injuries that are to be alleged hereafter.   These injuries were caused by at least the following:  failure to diagnostically determine the position of the fetus, later to be JENNIFER GUERTIN, prior to birth, when prior ultrasonography had indicated a transverse lie and a breech position;  improper uterine incision for a transverse lie and/or breech position;  failure to extend the incision made in the uterus after having selected an improper uterine incision․”

Again in Michelle's negligence cause of action, the pleadings set out the physician's conduct caused harm to Jennifer:  “[The physicians] so negligently and carelessly examined, diagnosed, cared for and treated and rendered medical services upon [Michelle] ․ that as a direct and proximate result thereof her daughter, plaintiff JENNIFER GUERTIN was caused to suffer serious personal injuries, including spastic quadriplegia.”   The pleadings continue “As a direct and proximate result of their failure to properly care for and treat MICHELLE ANISODON and as a result of the condition of her daughter, plaintiff MICHELLE ANISODON has suffered severe emotional and mental stress.”

I cannot conclude, as does the majority, that Michelle states a negligence cause of action.   Without question, childbirth is unique in medical care because a physician necessarily attends both mother and child.   The physician, however, owes separate duties to each, to care for the mother's well-being in the delivery of the child, and to care for the child in facilitating birth.   (See Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149, 167, 276 Cal.Rptr. 470.)   Falling below the standard of care as to one does not automatically result in harm to the other.

The “improper uterine incision” was improper not because it caused harm to Michelle but because it impaired extracting the infant.   Simply put, Michelle's injuries derive solely from Jennifer's.

More problematic than the generous reading of the complaint in an undeniably tragic situation are indications that the majority's opinion will affect virtually every complaint involving childbirth malpractice.

Relying on Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 and Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278, the majority theorizes the “family unit” received “joint treatment” to conclude the medical negligence was necessarily directed at Michelle's “interests.”   Under this theory, childbirth will always be treated as a “family unit” and any conclusory allegation of “negligent diagnosis” or “improper care” toward mother or child will state a cause of action for both.

I do not read the Supreme Court's holdings in Molien and Marlene F. so broadly.   Mr. Molien was allowed to state a cause of action for negligence, with concomitant emotional distress damages, because the physician acted to convey a misdiagnosis of sexually transmitted disease not only for Mrs. Molien, but also for Mr. Molien.   As such, the physician breached a duty to each.   In Marlene F., the molesting therapist similarly breached a separate duty to each mother and child.   As explained by Justice Eagleson in concurrence, recovery for emotional distress damages “is normally permitted only as an item of ‘parasitic’ damages when the defendant is liable for another injury․  When a professional relationship involves counseling or therapy for the purpose of treating an emotional or psychiatric condition, the right to recover for malpractice which worsens that condition and in so doing causes severe emotional distress is clear.”  (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 600, 257 Cal.Rptr. 98, 770 P.2d 278 (Lucas, C.J., and Panelli, J., concurred).)

Here, the alleged malpractice did not leave Michelle in a worsened physical condition.   Rather, it understandably left her in a “worsened” emotional state as a direct result of the physical injury to her child.

Parents unquestionably suffer emotional distress upon harm to their child, whether or not the harm is a result of another's negligence.  “Close relatives suffer serious, even debilitating, emotional reactions to the injury, death, serious illness, and evident suffering of loved ones.   These reactions occur regardless of the cause of the loved one's illness, injury, or death.   That relatives will have severe emotional distress is an unavoidable aspect of the ‘human condition.’  ․ The overwhelming majority of ‘emotional distress' which we endure ․ is not compensable.”  (Thing v. La Chusa (1989) 48 Cal.3d 644, 666, 257 Cal.Rptr. 865, 771 P.2d 814.)   Policy consideration dictates whether duty exists and liability attaches.   Parental distress following negligent injury to a child is not enough for the parent to state his or her own cause of action.  (Id. at p. 647, 257 Cal.Rptr. 865, 771 P.2d 814.)

In essence, the majority creates a “birthing mother” category for the recovery of emotional distress damages.   Any woman whose child is negligently injured in the birth process may state her own cause of action for negligence because she “was part of a family unit which received joint treatment.”   (Maj.Opn. at p. 546.)   I believe this result is “a nearly limitless extension of liability.”  (Schwarz v. Regents of University of California, supra, 226 Cal.App.3d at p. 167, 276 Cal.Rptr. 470.)   Though few circumstances, if any, cause more heartbreak than a needlessly damaged infant, the law does not establish recovery based on grief alone.

FOOTNOTES

1.   All statutory references are to the Code of Civil Procedure unless otherwise specified.

2.   The first amended complaint does not differentiate between the alleged acts of the physicians and the hospital.   For simplicity, we will refer to all real parties in interest as the physicians.The first amended complaint is dated November 29, 1990.   The record does not contain the date of the initial complaint.   Petitioners allege their complaint is timely because they did not learn of Jennifer's injury until it was identified with newly available scientific diagnostic equipment.   The limitations question is not before us.   Neither do we address any question concerning the applicability to this action of MICRA, the Medical Injury Compensation Reform Act (Stats.1975, Second Ex.Sess., chs. I & II), since no such question is presented by the pleadings.

3.   Code of Civil Procedure section 376 provides parents or guardians of a child may maintain an action for injury to the child caused by the wrongful act or neglect of another.   The statute contains extensive joinder rules concerning the individual parents as plaintiffs and includes, as a measure of damages, the provision:  “In every action under this section, such damages may be given as under all of the circumstances of the case may be just;  ․”

4.   E. Lawrence Hoder, M.D., answered the complaint, rather than demurring, and is not a real party in interest here.

5.   Judge Lawrence Kapiloff made the initial ruling.   All other rulings were predicated on the first.

6.   Both Mother and Father have conceded they may not rely on the “bystander theory” because they were not percipient observers of the injury to Jennifer.

7.   However, in its reference to the contract issue raised by the pleading, the Supreme Court declined to “consider the validity of the theory ․ [premising] a duty to parents solely on the basis of a contract they enter into for the care of their child and then [permitting] recovery for emotional distress if that care is not properly rendered.  [Citing Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 208 Cal.Rptr. 899, Newton v. Kaiser Foundation Hospital (1986) 184 Cal.App.3d 386, 228 Cal.Rptr. 890;  cf. Martinez v. County of Los Angeles (1986) 186 Cal.App.3d 884, 231 Cal.Rptr. 96.]”  (Marlene F., supra, 48 Cal.3d at pp. 591–592, fn. 7, 257 Cal.Rptr. 98, 770 P.2d 278.)

8.   The court also explained that there must be limits on the compensation that will be afforded to persons who suffer emotional distress.  “Emotional distress is an intangible condition experienced by most persons, even absent negligence, at some time during their lives.   Close relatives suffer serious, even debilitating, emotional reactions to the injury, death, serious illness, and evident suffering of loved ones.   These reactions occur regardless of the cause of the loved one's illness, injury, or death.   That relatives will have severe emotional distress is an unavoidable aspect of the ‘human condition.’  ․ The overwhelming majority of ‘emotional distress' which we endure ․ is not compensable.”   (Thing, supra, 48 Cal.3d at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814.)

9.   The court in Newton, supra, appears to have been ill-advised to characterize the contract for medical services to be for the delivery of a healthy fetus.   The pleadings in Newton apparently did not raise a theory of breach of warranty to guarantee a particular result.  (See Depenbrok v. Kaiser Foundation Health Plan, Inc. (1978) 79 Cal.App.3d 167, 170–171, 144 Cal.Rptr. 724.)   Rather, the usual contract for medical services should properly be characterized as one to provide care and treatment that is within the applicable standard of care.

10.   As noted above (see fn. 7, ante ), the Supreme Court in Marlene F., supra, 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278 declined to consider whether the contract between parent and physician for the care of the child gave rise to a separate theory of recovery for damages.  (Id. at p. 591, fn. 7, 257 Cal.Rptr. 98, 770 P.2d 278.)

11.   By way of clarification, we do not believe the use by the court in Holliday of the term “special relationship” concerning Marlene F. was intended to be a reference to the term of art “special relationship” used in tort law to justify imposition of a duty (e.g., to control the conduct of a third party, or to impose a duty to protect) where none would otherwise exist.  (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894.)   Rather, we think the court in Holliday was merely, by way of summary, referring in that manner to the particular therapist-patient relationship demonstrated by the facts in Marlene F.

12.   In addition to general damages for emotional distress, such special items of damage as medical and incidental expenses, wage loss and loss of earning capacity, loss of services, and related expenses are the types of damages that may be in issue in emotional distress claims.   (Cal.Tort Damages (Cont.Ed.Bar 1988) § 6.23, at p. 166.)

13.   “ ‘Every judicial action must therefore involve the following elements:  a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant;  a delict or wrong done by the defendant which consisted in a breach of such primary right and duty;  a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself․  Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action․’  (Pomeroy, Code Remedies (5th ed), p. 528;․)”  (4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 23, pp. 66–67.)

14.   With regard to the loss of a child's services, the Supreme Court noted in Baxter v. Superior Court, supra, 19 Cal.3d 461, 465–466, 138 Cal.Rptr. 315, 563 P.2d 871 (the case which denied recovery for loss of filial consortium) that only pecuniary damages for such lost services, as opposed to general damages for loss of affection and society, may be recovered.

1.   Undoubtedly Michelle's distress for the incision would be de minimis compared to her distress in raising Jennifer.   Parents are not entitled to recover damages for their own emotional distress in restructuring their lives to care for their negligently injured child.   (Martinez v. County of Los Angeles (1986) 186 Cal.App.3d 884, 887–888, 231 Cal.Rptr. 96.)

HUFFMAN, Associate Justice.

NARES, J., concurs.