Bird v. Saenz

In Bird v. Saenz (2002) 28 Cal.4th 910, the plaintiffs sought to recover damages for negligent infliction of emotional distress (NIED) based on medical malpractice suffered by their mother. The plaintiffs had brought their mother to the hospital for chemotherapy. During the surgical procedure to insert a venous catheter, an artery was pierced, which led to severe internal bleeding. The plaintiffs heard a call for a thoracic surgeon, saw their mother being rushed by medical personnel to another room, heard the doctor's report of the mother possibly having suffered a nicked artery or vein, and then saw their mother being rushed into surgery. The plaintiffs conceded they were not present at the scene of the transection of their mother's artery. They argued, however, they were aware their mother's artery or vein " 'had been injured as a result of Defendants' conduct ... and that Defendants failed to treat that injury while it was occurring.' " (Bird, supra, 28 Cal.4th at p. 917.) The Supreme Court rejected their argument, concluding they had not shown they were contemporaneously aware of any error in the subsequent diagnosis and treatment of their mother's transected artery. The court stated: "The problem with defining the injury-producing event as defendants' failure to diagnose and treat the damaged artery is that plaintiffs could not meaningfully have perceived any such failure. Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders. ... Even if plaintiffs believed, as they stated in their declarations, that their mother was bleeding to death, they had no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate. While they eventually became aware that one injury-producing event--the transected artery--had occurred, they had no basis for believing that another, subtler event was occurring in its wake." (Ibid.) The Supreme Court went on to observe that "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. To suggest an extreme example, a layperson who watched as a relative's sound limb was amputated by mistake might well have a valid claim for NIED against the surgeon. Such an accident, and its injury causing effects, would not lie beyond the plaintiff's understanding awareness. But the same cannot be assumed of medical malpractice generally." (Bird, supra, 28 Cal.4th at p. 918) In Bird, the court analyzed its holding in Ochoa and explained: "The injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention. Such a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson." (Bird, supra, 28 Cal.4th at pp. 919-920.) In sum, the plaintiffs were in the waiting room while their mother was negligently operated on, with the result the Bird plaintiffs "had no sensory perception whatsoever of the injury-producing event at the time it occurred." (Id. at p. 917.) The Bird Court observed, "Thing's requirement that the plaintiff be contemporaneously aware of the injury-producing event has not been interpreted as requiring visual perception of an impact on the victim. A plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative. " (Id. at p. 916.) The Supreme Court explained, "a rule permitting bystanders to sue for NIED on account of unperceived medical errors hidden in a course of treatment cannot be reconciled with Thing's requirement that the plaintiff be aware of the connection between the injury-producing event and the injury." (Id. at p. 921.) In Bird v. Saenz, two events were identified by the California Supreme Court as potential injury-producing events: (1) the negligent transection of the victim's artery and (2) the subsequent negligence by the defendants in failing to diagnose and treat the damaged artery. (Id. at p. 917.) The court ruled that the plaintiffs could not recover for NIED to a bystander for either event. With respect to the negligent transection, the plaintiffs were not present at, nor did they observe the injury-producing event. (Ibid.) As for the defendants' subsequent negligence in failing to diagnose and treat the victim's damaged artery, the plaintiffs did not, and could not, meaningfully perceive the defendants' negligence because "except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders." (Ibid.) The court continued, "Even if plaintiffs believed, as they stated in their declarations, that their mother was bleeding to death, they had no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate. While they eventually became aware that one injury-producing event--the transected artery--had occurred, they had no basis for believing that another, subtler event was occurring in its wake." (Ibid.) The Court made it clear that in order to permit recovery, it is not enough that the plaintiff bystanders observe the injured person's suffering. The plaintiffs must "'experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.'" (Id. at p. 918.) There must be "'contemporaneous awareness the defendant's conduct or lack thereof is causing harm.'" (Id. at p. 919.) While the court rejected the notion "that a layperson can never perceive medical negligence" (id. at p. 918), the court made clear that recovery is possible only in extreme cases (such as observation of the amputation of the wrong limb), "but the same cannot be assumed of medical malpractice generally" (ibid.). In Bird, the court makes clear that to permit recovery, the bystander plaintiff must observe not only the negligent act and the injury, but also must be aware of the causal connection between the two. There must be "contemporaneous, understanding awareness of the event as causing harm to the victim." (Id. at p. 920.) The facts in Bird and in several cases cited with approval in Bird provide illustrations of this limitation, all strikingly similar to the facts in the present case. In Bird, two events were identified as potential injury-producing events: the negligent transection of the victim's artery and the subsequent negligence by the defendants in failing to diagnose and treat the damaged artery. (Bird, supra, 28 Cal.4th at p. 917.) The court ruled that the plaintiffs could not recover for NIED based on the negligent transection because they did not observe that injury-producing event. As to the subsequent misdiagnosis and failure to properly treat the damaged artery, the plaintiffs could not recover because they did not, and could not, meaningfully perceive the defendants' negligence. The court stated, "Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders." (Ibid.) The court continued, "Even if plaintiffs believed, as they stated in their declarations, that their mother was bleeding to death, they had no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate." (Ibid.)