RAMOS v. VALLEY VISTA HOSPITAL (1987)

This case consists of two consolidated appeals, one brought by Luis Ramos (Luis) and one by Maria Ramos (Maria).   Luis and Maria sued Valley Vista Hospital (Hospital) and Saleh Hamdan, M.D. (Doctor) (collectively respondents),¹ seeking damages for the severe emotional distress they suffered due to the birth of their daughter, who is brain damaged.   Initially the trial court sustained a demurrer without leave to amend against Luis's causes of action in the first amended complaint, apparently on the ground that Luis did not state a third-party plaintiff's claim as set forth in either Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, or Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   Later a demurrer was sustained without leave to amend on the same ground against the third amended complaint brought by Maria.   We find that both parties have a cause of action for negligent infliction of emotional distress under Newton v. Kaiser Hospital (1986) 184 Cal.App.3d 386, 228 Cal.Rptr. 890.   The dismissals are reversed and the suit shall be permitted to go forward.

DISCUSSION

We accept as true all properly pleaded material facts stated in the complaint.  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)   The following facts are taken from the third amended complaint.   During her pregnancy, Maria engaged the service of Doctor, Hospital and a Dr. Paternoster, not a party to this suit, to provide medical services on behalf of herself and her unborn child.   On August 2, 1982, Maria's daughter was born with brain damage.   Maria discovered on June 20, 1984, that the brain damage was a result of respondents' negligence.   Respondents' negligence, i.e., their failure to exercise the ordinary skill of health care providers, also caused Maria to suffer shock and emotional injury.²  Maria alleges that Hospital failed to exercise care in providing services and in selecting its employees, which caused her physical injuries and emotional distress.

The first amended complaint alleged the facts about the contract between respondents and Maria, the birth, and respondents' negligence and when it was discovered.   The first amended complaint alleged additional facts about respondents' conduct:  Maria was not properly monitored during labor, and the child was not delivered with the degree of care necessary for a safe birth.³  It alleged that respondents owed a duty to Luis, who also suffered severe emotional distress as the result of respondents' negligence.

Suits brought by parents seeking damages for the negligent infliction of emotional distress generally have been limited to situations in which the parents witnessed “the defendant's conduct and the child's injury and [had] contemporaneous awareness [that] the defendant's conduct or lack thereof [was] causing harm to the child.”  (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 170, 216 Cal.Rptr. 661, 703 P.2d 1;  see Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.)   Parents who did not witness the injury tried to establish that they were direct victims of the defendant's negligence under Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   They met with some success, at least where the injury in question was a misdiagnosis.  (See Accounts Adjustment Bureau v. Cooperman (1984) 158 Cal.App.3d 844, 204 Cal.Rptr. 881;  Sesma v. Cueto (1982) 129 Cal.App.3d 108, 181 Cal.Rptr. 12.   But see Cortez v. Macias (1980) 110 Cal.App.3d 640, 167 Cal.Rptr. 905.)   Luis and Maria have not alleged facts which would make them bystanders under Dillon and Ochoa.   Each of the cases permitting suit by direct victims, Molien, Cooperman or Sesma, involves misdiagnosis, which Luis and Maria do not allege in this case.

 Recently, however, the law was expanded to accommodate the very situation presented here:  parents' emotional distress caused by a serious birth defect which in turn was caused by defendant's negligence.  Newton v. Kaiser Hospital, supra, 184 Cal.App.3d 386, 228 Cal.Rptr. 890, held that health care providers engaged for prenatal treatment and childbirth owe a duty to the parents to discharge their responsibilities under the contract in a nonnegligent manner.   Where the negligence of the health care provider causes injury to the child, both parents are the direct victims of that negligence and are permitted to recover from the provider for their emotional distress.

Newton's underpinnings are found in Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 208 Cal.Rptr. 899.  Andalon analyzed the direct victim concept of Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, in light of Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16.   Biakanja established that a third party, the intended beneficiary of a contract not in privity with the defendant, may sue the defendant for the breach of that contract.  “ ‘The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the 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, and the policy of preventing future harm.’ ”  (Andalon v. Superior Court, supra, 162 Cal.App.3d at pp. 609–610, 208 Cal.Rptr. 899, citing Biakanja v. Irving, supra, 49 Cal.App.2d at p. 650, 320 P.2d 16.)   The Andalon court reasoned that Molien also involved a contract, a physician-patient relationship between Mrs. Molien and her doctor.   Mr. Molien was a direct victim of the defendant's misdiagnosis, i.e., that Mrs. Molien had a communicable sexual disease.   Both their interests “in harmonious relations with their spouses” were impinged by the defendant's negligence.  (Andalon, supra, 162 Cal.App.3d at p. 610, 208 Cal.Rptr. 899.)

The court then turned to the case before it.   The Andalon child was born with Down's Syndrome.   Mrs. Andalon alleged that the birth was unwanted and resulted from negligent prenatal care.   Mrs. Andalon had a contract with the doctor, and a duty to advise her about Down's Syndrome arose from that contract.   The duty ran to Mr. Andalon as well, “not merely because of the foreseeability of the emotional harm to him, but because of the nexus between his significant interests[, i.e., the reproductive life of the couple] and the ‘end and aim’ of the contractual relationship.”  (Id., at p. 611, 208 Cal.Rptr. 899.)   Thus, the Andalons' suit was permitted to go forward.

Newton v. Kaiser Hospital, supra, 184 Cal.App.3d 386, 228 Cal.Rptr. 890, involved injury to the child which occurred in the delivery room.   The husband was not present and the wife was unconscious during the birth, so neither stated a Dillon-Ochoa cause of action.  (Id., at pp. 389–390, 228 Cal.Rptr. 890.)   Nevertheless they were permitted to pursue their suit under the theory developed in Andalon.   The mother had an obstetrician-patient relationship with the defendants.   The mother was found to be “a direct victim of the alleged negligence in the execution of this relationship which resulted in injuries to her child.  (Andalon, 162 Cal.App.3d at p. 611, 208 Cal.Rptr. 899;  Sesma, 129 Cal.App.3d at p. 115 and fn. 2, 181 Cal.Rptr. 12;  Johnson, 123 Cal.App.3d at p. 1007, 177 Cal.Rptr. 63.)   Furthermore, the relationship between Kaiser and [mother] implicated the reproductive efforts of the couple, which personally interests [father].”  (Newton v. Kaiser Hospital, supra, 184 Cal.App.3d at p. 392, 228 Cal.Rptr. 890.)   The court held that the parents' allegation of the physician-patient relationship for prenatal treatment and childbirth, together with the allegation that the parents were the direct victims of the negligent execution of the relationship, which caused emotional distress at their child's injury, sufficiently stated a cause of action under Andalon without amendment.  (Id., at p. 392, 228 Cal.Rptr. 890.)

 In this case, Maria had a doctor-patient relationship with respondents by which they were to provide prenatal care and delivery.   Respondents were negligent in caring for both Maria and the child during labor and delivery.   As a result, the child was born with brain damage.⁴  Both Luis and Maria allege that the child's injury caused severe emotional distress.   Thus they have sufficiently stated the elements of a negligent infliction of emotional distress cause of action under Newton.

 Hospital contends that Maria abandoned her willful misconduct claim against it.   The trial court sustained a demurrer against that cause of action as alleged in the first amended complaint.   No willful misconduct cause of action was alleged in the third amended complaint.   Hospital cites former Code of Civil Procedure section 581, subdivision 3, which permitted dismissal of an action by the court where a plaintiff failed to amend the complaint within the time allowed by the court.   Present section 581, subdivision (f)(2), likewise permits dismissal of an action upon failure to amend after leave is granted.  (As amended by Stats.1986, ch. 540, § 8.)   Neither, on its face, permits automatic dismissal of an “abandoned” cause of action by the court.   Furthermore, Code of Civil Procedure section 473 grants the trial court the discretion to allow parties to amend under the circumstances described therein.   Luis and Maria may be allowed to restate the willful misconduct cause of action by the trial court.   Therefore, we will not decide whether that cause of action was abandoned and suggest the issue be raised before the trial court upon appropriate motion.

Finally, Hospital's suggestion that it was appropriate to dismiss the corporate responsibility cause of action because the cause of action against Doctor was dismissed, is noted.   Since we are permitting the suit to go forward against both Doctor and Hospital, however, the issue has become moot.

The order and the judgment are reversed.   Respondents to pay costs on appeal in both cases.

FOOTNOTES

1.   Also named in the suit are Saleh Hamdan, M.D., Inc., a medical corporation, and Doe defendants.

2.   The third amended complaint contains vague allegations of negligent acts to the fetus witnessed by Maria which caused her great anxiety.   By these allegations Maria intends to state a cause of action under Johnson v. Superior Court (1981) 123 Cal.App.3d 1002, 177 Cal.Rptr. 63.   If Maria can state facts which establish a cause of action under Johnson, she should request leave to amend the complaint to so state.   In light of our holding under Newton v. Kaiser Hospital, supra, 184 Cal.App.3d 386, 228 Cal.Rptr. 890, however, she may want to omit the Johnson -type allegation from the complaint.

3.   The third amended complaint should be amended to include the facts showing how respondents were negligent.

4.   In a recent opinion, the court in Martinez v. County of Los Angeles (1986) 186 Cal.App.3d 884, 231 Cal.Rptr. 96, examined a cause of action for emotional distress brought by the parents of a brain damaged child.   The Martinez court found that the complaint failed “to allege conduct by defendant directed to the Martinez parents that elicited serious emotional response.   Rather, their emotional distress and anxiety are alleged to arise from the negligent care and treatment of their minor son by defendants and an inability to conduct the ‘normal’ routine activities of their lives.”  (Martinez v. County of Los Angeles, supra, 186 Cal.App.3d at p. 893, 231 Cal.Rptr. 96.)   The allegations were found not to state a cause of action under Andalon v. Superior Court, supra, 162 Cal.App.3d 600, 208 Cal.Rptr. 899.  (Martinez, supra, 186 Cal.App.3d at p. 893, 231 Cal.Rptr. 96.)   The court did not analyze the complaint under the rule of Newton v. Kaiser Hospital, supra, 184 Cal.App.3d 386, 228 Cal.Rptr. 890, because it found Newton to be “an unwarranted extension of Andalon․”  (Martinez, supra, 186 Cal.App.3d at p. 892, 231 Cal.Rptr. 96.)   In Newton, the parents alleged injury to the child which resulted from the negligent use of forceps during delivery.   Unlike Andalon, the Newton complaint did not allege negligent prenatal care.   Under Newton, the Martinez court found, “recovery for emotional distress is permitted despite the fact that the negligent conduct does not involve rendering of care, treatment, or advice to the parents․”  (P. 892, 231 Cal.Rptr. 96.)The complaint before us alleges negligent care and treatment to Maria during labor and delivery.   It is, therefore, distinguishable from the Martinez complaint.   For that reason, we need not follow the Martinez analysis.   In any case, delivery, the separation of the child from the mother, cannot be accomplished without rendering care and treatment to the mother.   The mother is the direct victim of negligent prenatal care or delivery.   The health care provider's duty runs directly to her by virtue of the doctor-patient relationship, and to the father as the direct beneficiary of that relationship.

ASHBY, Associate Justice.

FEINERMAN, P.J., and EAGLESON, J., concur.