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Court of Appeal, Second District, Division 2, California.

Kim CAPELOUTO et al., Plaintiffs and Appellants, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents.

Civ. 38018.

Decided: November 29, 1971

Shulman & Shulman, Adley M. Shulman, Beverly Hills, for appellants. Thelen, Marrin, Johnson & Bridges, James M. Radnich, Henry W. Holmes, Jr., Los Angeles, for respondents.

Kim Capelouto, a minor, by her guardian ad litem Edward Capelouto, and Kim's parents, Edward and Rachel Capelouto, appeal the judgment in their negligence action against Kaiser Foundation Hospitals, Inc., Kaiser Foundation Health Plan, Inc., Southern California permanente Medical Group, a partnership, and a number of individual doctors who were partners in the Medical Group. The Capeloutos sought damages for an infection contracted by Kim while at a Kaiser Foundation hospital. The jury found in favor of Kim against Kaiser Foundation Hospitals, Inc., only, and Awarded damages of $1,510.24.


Kim was born at a Kaiser Foundation hospital on 30 July 1964. Within the next few days Kim and 13 other babies in the hospital nursery contracted an infection caused by salmonella bacteria. The infection was brought to the hospital by an expectant mother, transferred to her baby at birth, and spread to other babies in the nursery by hospital employees who handled them. For Kim, symptoms of the disease included vomiting, diarrhea, cramps, and fever, symptoms which lasted off-and-on over a period of nine to twelve months. She was hospitalized several times, and medical bills for her care totalled $1,510.24. At the time of trial Kim was six tears old, in good health, happy, did not know she ever had been infected, and had sustained no permanent mental or physical damage.

Kim's parents, Edward and Rachel Capelouto, did not contract the infection. They testified they were nervous, anxious, and sleepless during Kim's illness. Neither parent suffered physical injury.

Southern California Permanente Medical Group comprises a partnership of doctors. Partners and doctor-employees of the Medical Group serve as members of the medical staff at the Kaiser Foundation hospitals. The hospitals serve members of the Kaiser Foundation Health Plan, as well as others. Evidence was presented that in the Kaiser hospital where Kim was born standards of card for newborn babies suspected of illness fell below standards of care for hospitals in the area, and that salmonella infections do not spread if area standards of card have been met.

Pain and Suffering Damages

The trial court instructed the jury in part:

‘You are not permitted to award Kim Capelouto damages for physical and mental suffering which, although possible, is under the law incapable of proof because of the age of the child.’

The jury followed the instruction and awarded Kim $1,510.24, the precise amount of the medical expenses. The Capeloutos contend that the instruction was erroneous.

The source of the instruction undoubtedly lay in Babb v. Murray, 26 Cal.App.2d 153, 79 P.2d 159, a case in which the court ruled that pain and suffering were incapable of proof because of the age of the child, there as here, measured in months rather than years. The court there pointed out that neither medical nor scientific testimony had been offered to show that the child suffered pain, and manifestly the child herself could not testify about her own pain.

Text writers have said generally that to justify damages for pain and suffering, the evidence must show the actual existence of pain and suffering or such injuries that pain and suffering would presumably follow. (25 C.J.S. Damages § 162(7), p. 99.) Little analysis appears in the California case on what constitutes pain and suffering. 22 Am.Jur.2d 154, Damages, § 105, states:

‘Courts generally use the phrase ‘pain and suffering’ to mean the pain and suffering resulting from a physical impact. There is no adequate definition of pain; the best that can be done is to describe a reaction to pain. This reaction is the body's awareness of unpleasant changes or activities that call attention to a particular region of the body. Pain is thus a protopathic sensation located in the nervous system. Recognition of the possible danger resulting from this sensation is ‘suffering,’ distinguished from the initial and continuing pain. Sometimes courts refer to this type of pain and suffering as physical pain and suffering. When there is no physical impact, the sensation is usually called mental anguish.'

Werchick, ‘Unmeasurable Damages and a Yardstick,’ 17 Hastings Law Journal 263, 264–265, relies on medical dictionaries and medical journals in the following comments (footnotes omitted):

‘The search for an appropriate definition of ‘pain’ presents greater semantic difficulties. As an example, ‘pain’ has been defined as ‘a more or less localized sensation of discomfort, distress or agony resulting from the stimulation of specialized nerve endings.’ Such a definition constitutes a rather unsatisfying analysis and manifestly would tend to heighten rather than diminish the perplexity of the judge or attorney confronted with this phenomenon. ‘Pain,’ more comprehensively, albeit more technically, has been described as a psychobiologic phenomenon with both physical and emotional components. This dual aspect of pain is liked to the distinction between perception of pain and reaction to pain. Perception of pain may be evaluated in terms of quality and intensity, while reaction to pain is manifested by such symptoms as tachycardia (excessively rapid heart beat), anxiety, fear, panic and prostration.

“The rigid dichotomy of organic pain versus psychogenic pain had become obsolete, and pain must be considered and approached clinically as a Gestalt problem. * * *' Pain may alternatively be referred to as lancinating, sharp, dull, smarting, exquisite, shooting, severe, mild, local, generalized, tormenting, agonizing or intense.

“Suffering' is a more comprehensive expression denoting a broader concept than pain, since it lacks the rigidity which comes from inclusion in a standard scientific vocabulary. In the field of torts, ‘suffering’ includes such conditions as worry, anxiety, embarrassment, humiliation, mental anguish or torment, shock, fright, fear, apprehension, terror, grief, sorrow, ordeal, nervousness and the like. This concept is properly used in the courtroom, despite its broad scope, for it is descriptive of matters which will be in issue under varying circumstances.'

From the foregoing comments we conclude that pain is a term used to describe an unpleasant sensation related to the nervous system, and suffering a term to describe a mental condition, either a memory of past unpleasant sensation or fear of future unpleasant sensation. Under this analysis suffering is a mental condition and would normally not become a provable factor of damages for infants. Under this view the conclusion of the court in Babb v. Murray that the infant ‘did not know what happened to her, and not knowing, was without fear or mental anguish’ (p. 155, 79 P.2d p. 160) is a correct statement with respect to the factor of suffering. Yet acceptance of the fact that an infant cannot suffer feat or mental anguish does not carry with it the implication that an infant cannot experience pain. It appears to us that an infant may recover damages on proof of pain, and therefore to the extent the instruction of the court implied the contrary, it was erroneous.

Yet the existence of pain, like all other items of damage, must be proved by the presentation of evidence. The normal method of proving pain (the assertion of the person experiencing the pain) was not available in this case. Nevertheless pain could have been proved by direct testimony of attending physicians, by opinion evidence from experts qualified to give such opinions, or by proof of a type of injury from which the existence of pain could necessarily be inferred, as for example, third-degree burns, crushed bones, and the like.

In the present case the Capeloutos called several experts to testify. Their family physician described Kim's illness, the diagnoses made, and the treatment given. A public-health nurse consultant and representatives of the State Department of Health described their investigations of the outbreak of salmonella infection at the hospital. Doctors from the hospital described the treatment given to Kim, the hospital's own investigation of the infection epidemic, and the subsequent changes in hospital procedure. Another doctor, an expert on salmonella infection and epidemics, described the cause of the infection and how it spreads, and testified that the standard of care at the hospital breached the standard of card for the area and the breach could have caused Kim's disease. But none of these witnesses testified that pain would be a consequence of the infection, that a newborn baby would experience pain from the infection, or that Kim had in fact experienced pain from the infection.

Nor were Kim's injures such that pain could necessarily be inferred. The symptoms of crying, vomiting, and diarrhea are hardly distinguishable from characteristics exhibited by other newborn children. (Cf. Trigueiro v. Skow, 24 Cal.App.2d 253, 74 P.2d 836, where a five-year-old boy incurred a broken bone and abdominal injuries, and was in traction and later in a cast and on crutches; and Gackstetter v. Market Street Ry. Co., 10 Cal.App.2d 713, 52 P.2d 998, where a four-year-old boy incurred a broken bone and a laceration of skin, muscle, and tissue, and remained in traction for six weeks.)

We conclude, therefore, that although pain in an infant of months is capable of proof, in this case an instruction allowing the jury to return damages for pain would have been inappropriate because evidence of such damage had not been produced. As stated in Babb v. Murray, 26 Cal.App.2d 153, at p. 155, 79 P.2d 159, at p. 160, ‘There was neither medical nor scientific testimony offered to show whether the child suffered any pain at all, or over any appreciable period.’ Under the facts of this case an instruction that plaintiff had presented no evidence of pain and that an award of damages for pain would be improper, would have been a legally and factually correct instruction to have given the jury. The instruction which was given reached a correct conclusion on what appears to have been improper reasoning. But no prejudice resulted from the instruction, since no evidence had been presented which would support an award of damages for either pain or suffering.

Liability to Rachel and Edward

The Capeloutos next contend that it was error for the trial court to refuse to give the following requested instruction:

‘A person who, due to the negligence of a Defendant, is exposed to danger of injury to himself as well as a witness to injuries to his child may recover damages for any physical effects upon himself as well as for any mental or emotional distress which he may suffer.’

The trial court did not err. First, the substance of the instruction was covered by another instruction the court actually gave:

‘The amount of the award to said parents shall include: * * * Reasonable compensation for any pain, discomfort, fears, anxiety, and emotional distress suffered by the parents, of which the injury to their child was a proximate cause, and for similar suffering reasonably certain to be experienced in the future from the same cause.’

Second, the proposed instruction is based on Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. In Dillon, the plaintiff-mother witnessed the death of her child under the wheels of an automobile negligently driven by defendant. The court recognized a right of action for damages for physical injury to the mother as a result of emotional trauma caused by witnessing an accident which brought about the death of her child. The mother's injuries were actionable because they were reasonably foreseeable consequences of an accident which resulted from defendant's negligent conduct. Relevant factors in determining foreseeability of injury to plaintiff were said to be: (1) whether plaintiff was located near the scene of the accident; (2) whether shock came from the sensory and contemporaneous observance of the accident; (3) whether a close relationship existed between plaintiff and the victim of the accident. (68 Cal.2d at 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

Since Dillon, in Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723, recovery was allowed for mental illness and emotional shock sustained by a plaintiff-mother who came on the scene moments after her son was torn apart by an explosion negligently caused by the defendant. But in Deboe v. Horn, 16 Cal.App.3d 221, 94 Cal.Rptr. 77, recovery for shock and physical injury was not allowed where the plaintiff-wife did not see her husband, who had been negligently injured in a traffic accident, until he was brought to the emergency hospital. Likewise in Wynne v. Orcutt Union School Dist., 17 Cal.App.3d 1108, 95 Cal.Rptr. 485, this court denied recovery for injuries allegedly suffered by plaintiff-parents when their child was told he had a fatal disease by the defendant-school district.

We believe Dillon does not apply to the circumstances of the case at bench. Dillon involved a single traumatic accident, observable and contemporaneously observed. Here the ‘accident’ was the unobservable transmission of an infection, and the shock came only from viewing the lengthy unfolding of the symptoms of the infection. Moreover, Dillon was limited to a case in which the shock resulted in physical injury. (68 Cal.2d at 740, 69 Cal.Rptr. 72, 441 P.2d 912.) Edward and Rachel testified they suffered no physical injuries from their ordeal.

The Permanente Medical Group

Finally the Capeloutos contend, without supporting authority, that the judgment entered by the trial court in favor of Southern California Permanente Medical Group should be reversed. They argue that because the Kaiser Hospital was found liable, the Medical Group, with an identity of functions and management, should also be held liable.

The contention is without merit. The evidence did not show as a matter of law ‘an identity of the functions and management.’ The evidence showed only that some Medical Group doctors work at Kaiser Foundation Hospitals and that some of the doctors at Kaiser Foundation Hospitals are members of the Medical Group. The legal relationship between the two entities was never shown. The jury apparently concluded that Kim's disease was caused only by acts of agents of Kaiser Foundation Hospitals, Inc. and there is substantial evidence to support that conclusion.

The judgment is affirmed.

FLEMING, Associate Justice.

HERNDON, Acting P. J., and COMPTON, J., concur.

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