Medical Malpractice — Negligent Infliction of Emotional Distress

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Phyllis Keys v. Alta Bates Summit Medical Center (1st Dist., February 23, 2015/March 25, 2015)    — Cal.Rptr.3d. —-

The sister and daughters of a woman who died following thyroid surgery, filed an action for wrongful death against the medical centerwhere the surgery was performed.  One of the daughters and the decedent’s sister also asserted a cause of action for negligent infliction of emotional distress, alleging that immediately following surgery both had witnessed the decedent having respiratory difficulties and discomfort, and both were upset at what they believed was a lack of urgency in responding to the woman’s distress.

Following a jury verdict in favor of the plaintiffs the defendant appealed, contending there was no evidence to support the jury’s finding that the plaintiffs had meaningfully comprehended the medical negligence that led to the death of their family member at the time the negligence was occurring. Relying on Bird v. Saenz (2002) 28 Cal.4th 910, 123 Cal.Rptr.2d 465, 51 P.3d 324, the defendant argued that the plaintiffs could not meaningfully perceive the defendants’ negligence because except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders.

However, the court of appeal affirmed, holding that the injury producing event was the defendant’s lack of acuity and response to the decedent’s inability to breathe, a condition the plaintiffs observed and were aware was causing her injury:

Bird does not categorically bar plaintiffs who witness acts of medical negligence from pursuing NIED claims. “This is not to say that a layperson can never perceive medical negligence or that one who does perceive it cannot assert a valid claim for NIED.” (citation.) Particularly, a NIED claim may arise when as in Ochoa caregivers fail “to respond significantly to symptoms obviously requiring immediate medical attention.”…

The evidence here showed that the plaintiffs were present when Knox, their mother and sister, had difficulty breathing following thyroid surgery. They observed inadequate efforts to assist her breathing, and called for help from the respiratory therapist, directing him at one point to suction her throat. They also directed hospital staff to call for the surgeon to return to Knox’s bedside to treat her breathing problems. These facts could be properly considered by the jury to demonstrate that the plaintiffs were contemporaneously aware of Knox’s injury and the inadequate treatment provided her by defendants.…

A reasonable inference can be drawn from the evidence that Keys and Smith were present and observed Knox’s acute respiratory distress and were aware that defendants’ inadequate response caused her death.  When “ ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.”

We have no reason to question the jury’s conclusion that Keys and Smith suffered serious emotional distress as a result of watching Knox’s struggle to breathe that led to her death.