Case Number: BC603977 Hearing Date: March 14, 2018 Dept: 92

SHANE MAHON, ET AL.,

Plaintiff(s),

vs.

LEE G. KISSEL, M.D., ET AL.,

Defendant(s).

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Case No.: BC603977

[TENTATIVE] ORDER DENYING SUMMARY ADJUDICATION re: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Dept. 92

1:30 p.m.

March 14, 2018

Background

Plaintiffs, Shane, Evelyn, and Claire Mahon filed this action against Defendants, Lee G. Kissel, et al. for medical malpractice. Plaintiff, Shane Mahon alleges his ear was damaged as a result of Defendants’ negligence. Plaintiffs, Evelyn and Claire allege they suffered emotional distress as a result of witnessing the damage to Shane.

Procedural History

On September 27, 2017, Defendant, Torrance Memorial Physician Network (“TMPN”) filed a motion for summary judgment or adjudication, setting it for hearing on December 15, 2017. In its reply, TMPN indicated it was withdrawing its motion for summary judgment, and would only be pursuing its motion for summary adjudication of the claims for negligent infliction of emotional distress.

Dr. Kissel filed a joinder to TMPN’s motion on September 29, 2017. On December 15, 2017, the Court denied the motion for summary judgment.

As to both Defendants motion for summary adjudication, however, the Court indicated in its tentative that the motion was denied because the separate statement failed to identify which facts applied to the motion for summary adjudication, as opposed to the motion for summary judgment. At the conclusion of the hearing, the Court agreed to continue the hearing on the motion to permit Defendant to cure this defect. Specifically, per Defendant’s notice of ruling, dated December 18, 2017, the Court ordered:

3. Plaintiffs’ and Defendants’ Counsel are to submit a Joint Separate Statement to Department 92 on or before December 28, 2017. The Statement is to contain no new facts and no new argument but, rather, is to be an excerpt of the documents previously submitted to the court.

The parties subsequently disputed the precise meaning or validity of the Court’s order. Accordingly, when the matter again came on for hearing on February 14, 2018, the Court again continued the matter to March 14, 2018, and further ordered as follows:

The hearing on the motion for summary adjudication is continued to 3/14/18 at 1:30 p.m. in D-92. On or before 2/21/18, Defendant must file and serve by overnight delivery, with a courtesy copy to D-92 an amended separate statement of undisputed facts in support of its motion. It must comply with all Rules of Court, discussed above. The amended separate statement must include only the facts Defendant believes are relevant to its alternative motion for summary adjudication. Defendant must not include any facts that were not submitted in its original separate statement. No further briefing is permitted.

On or before 2/28/18, Plaintiffs must file and serve by overnight delivery with a courtesy copy to D-92 an amended responding separate statement. It may include any additional facts that Plaintiffs believe are relevant to the ruling on the alternative motion for summary adjudication of the cause of action for NlED. Plaintiffs may not include any evidence or facts that were not included in their original separate statement.

On February 16, 2018, the parties filed a stipulation, dismissing Dr. Kissel from the suit.

The remaining parties subsequently filed the requisite amended separate statements, and the Court is now able to rule on Defendants TMPN’s motion for summary adjudication as to Plaintiffs’ NIED claims.

Merits

Plaintiffs seek to recover for negligent infliction of emotional distress under the bystander doctrine.

In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.

(Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)

There is no dispute that Plaintiffs—as Shane’s mother and sister—satisfy the first element of the test. Additionally, the undisputed facts show that Plaintiffs were present when a medical assistant performed a lavage on Shane’s ear. (Undisputed Material Fact (“UMF”) No. 3.) Additionally, TMPN has withdrawn that portion of its motion challenging whether this incident was the cause of Shane’s injury, including subsequent deafness in his left ear.

However, TMPN argues Plaintiffs cannot succeed on the second and third elements, namely that they were not contemporaneously aware of Shane’s injury, and did not in fact suffer emotional distress.

1. Contemporaneous Awareness of Injury

As to the awareness of the injury, TMPN cites three cases discussing limits on a layperson observer to understand a medical injury sufficiently to qualify for negligent infliction of emotional distress. In Bird v. Saenz (2002) 28 Cal.4th 910, two daughters were in a hospital waiting room while their mother had surgery. Doctors had updated them on occasion, warning that there were complications, and they then saw their mother, unconscious and blue, surrounded by a number of doctors and nurses being transported to different room. The daughters argued they knew, at that time, that they were witnessing their mother dying. The Supreme Court, however, held the injury occurred while in the operating room, and the daughters did not contemporaneously perceive that injury because they were not in the room.

In Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, family members observed a paramedic examine their sibling and child, who had been in a car accident. The paramedic failed to diagnosis him with sickle cell shock, leading to his death. The Court of Appeal held that although the family was present and observing their family member at the time the negligence was occurring (the negligent exam), they were not contemporaneously aware of the fact that the negligence would lead to any harm.

In Meighan v. Shore (1995) 34 Cal.App.4th 1025, a nurse was with her husband at the hospital, because she believed, based on her medical knowledge, that he may have had a heart attack. She was worried, and complained, because of the lengthy delay in the hospital obtaining a cardiologist. The cardiologist arrived and incorrectly informed her that her husband had not had a heart attack. When it was determined the following morning that he had a heart attack, she sued for NIED, claiming she observed the injury—namely, the misdiagnosis—and that she was presently aware of it, due to her medical knowledge that had led her to suspect he had a heart attack. The Court of Appeal disagreed, holding she had not perceived any actual injury-causing event.

Based on the foregoing, TMPN argues that, because Plaintiffs did not and could not have actually known what injury Shane sustained—and, in fact, did not know for several more weeks what injury he had sustained—the fact that they were present during the lavage is insufficient.

The Court disagrees. The situation here is not analogous to Bird because whereas the daughters were not actually in the operating room, here Plaintiffs were in the room during the procedure. The situation is also unlike Wright and Meighan because in those situations, the observers could not perceive the injury-causing event, which was essentially an omission rather than an action, namely misdiagnosis that, in the first case, the observers were not even aware of, and in the second case, the observer merely had some suspicions, but no confirmation, of injury. Here, by contrast, Plaintiffs were in the room while Shane twice stated that the lavage was hurting him, and while Shane began to cry from the pain. (Additional Material Facts (“AMF”) No. 8-10, 12.)

This situation is more analogous to a hypothetical proposed in the Bird case:

In other NIED cases decided after Thing, supra, 48 Cal.3d 644, and based on alleged medical negligence, courts have not found a layperson’s observation of medical procedures to satisfy the requirement of contemporary awareness of the injury-producing event. 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 918.)

Here, Plaintiffs were essentially watching as Shane’s eardrum was injured. Defendant focuses on the fact that, while Plaintiffs may have known Shane was experiencing some pain, they did not know the full consequences of the injury (i.e., deafness). It is true that Bird states a person must also be aware of the “injury-causing effects,” which arguably requires some understanding of the consequences of the injury. But no case that this Court has uncovered requires an exact understanding of the nature or extent of the injury. For example, in Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.Ap.4th 484, the patient’s sister and daughter were in her hospital room when she stopped breathing. The Court of Appeal affirmed their claim of emotional distress from watching doctors and nurses react slowly to the patient’s suffocation. The dissent expressly argued the plaintiffs should not recover because, at the time of the harm, they had no way of knowing what the cause of her suffocation was (namely, a hematoma in the throat), and were not present when, in an earlier surgery, the doctors had negligently caused the hematoma to form. (Id. at 494-95.) The majority disagreed, holding it was sufficient that plaintiffs were aware the patient was not breathing and that the doctors were not reacting with sufficient speed. (Id. at 490.)

Here, likewise, Plaintiffs were aware Shane was in pain, and that the medical assistant continued applying pressure to the ear even after he had expressed that he was in pain. That they did not then know the full extent of the injury does not prevent a finding that they knew some type of injury was occurring. The Court concludes there are triable issues of fact as to whether Plaintiffs have satisfied the second element of the test.

2. Emotional Distress

At trial, Plaintiffs must prove both that the suffered serious emotional distress, and that TMPN’s “conduct was a substantial factor in causing [their] serious emotional distress.” (CACI 1621.) “Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.” (CACI 1621.)

TMPN addresses this argument only briefly, arguing Plaintiffs’ behavior during and immediately following the procedure do not suggest any emotional distress. TMPN argues the fact that Evelyn went to a therapist once does not demonstrate emotional distress. TMPN also argues that the fact that Claire attended certain family therapy sessions, which were geared toward adjusting to Shane’s situation, not treating her for distress, does not demonstrate emotional distress.

Plaintiffs’ opposition focuses almost exclusively on the second element, and includes only a single sentence arguing they experienced substantial emotional distress: “Both Claire and Evelyn have sought and received professional therapy to cope with the distress of witnessing Shane’s life-changing injury.” (Oppo. 17:28-18:2.)

TMPN’s reply does not address the issue at all.

In the separate statement, TMPN relies on the following evidence to demonstrate Plaintiffs were not substantially emotionally distressed: Claire Depo. 14:19, 15:2-3, 16:15, and 46:1-11; Evelyn Depo. 54:23 and 55:25. In their response, Plaintiffs cite: Claire Depo. 15:3-9, 20-22 and 46:1-11, 18-25; Evelyn Depo. 9:17-10:7, 11:16-12:10; and 55:9-20.

As to Claire, the Court concludes there are triable issues of material fact as to whether she experienced serious emotional distress arising from witnessing her brother’s injury. Her mother, Evelyn, who testified that Claire’s grades have gotten worse, and that she has stopped performing as well in soccer as she used to. (TMPN’s Exh. E [Evelyn Depo. 9:17-10:7, 11:16-25].) Additionally, when asked whether she had experienced emotional distress, Claire testified, “Well, I guess I have good weeks and bad weeks. Bad weeks more often than I guess people should. Do I know what causes them? No. So would it be fair of me to rule out Shane’s ear? No.” When asked again whether she believed her brother’s injury had caused her emotional distress, she testified, “To an extent, yes.” (TMPN’s Exh. D [Claire Depo. 46:1-47:1].)

It is true, as TMPN points out, that Claire also testified she had never been diagnosed with any mental health condition, and that her two trips to a therapist were primarily about the family helping Shane, not about her own feelings. (TMPN’s Exh. D. [Claire Depo. 14:19-15:22, 16:12-15].) However, she subsequently qualified this. When asked “since the incident, did you personally believe that you needed to go see anybody to discuss the incident?” she responded “Yes, but not to the point where I would actually go do it. I’m kind of touchy about going to see therapists.” (Plaintiffs’ Exh. J [Claire Depo. 47:16-21].)

As to Evelyn, the Court also concludes there is a triable issue of fact regarding whether she suffered serious emotional distress. She testified that she saw a therapist once, on her own, to seek help with her “guilt being present and witnessing that and not intervening soon enough to prevent the injury.” (Plainitffs’ Exh. L [Evelyn Depo. 55:3-25].) Without citation to any authority, TMPN suggests that feelings of “guilt” do not qualify as emotional distress. The Court disagrees; guilt could fall within several of the categories enumerated by CACI 1621, such as anguish, grief, or shame. Additionally, this reaction—guilt at not intervening—is at least arguably a feeling that would be uniquely felt by a relative of someone injured. Thing explicitly defines serious emotional distress as “a reaction beyond that which would be anticipated in a disinterested witness.” (Thing, supra, 48 Cal.3d at 668.) While a disinterested witness might have an emotional reaction to watching someone else get injured, a trier of fact could well find that a feeling of guilt for not intervening is a reaction peculiar to those with close relations, such as a parent observing a child’s injury—in other words, a reaction beyond what would be expected of a disinterested witness.

Accordingly, the Court concludes triable issues of fact exist as to whether Evelyn experienced serious emotional distress due to witnessing her son’s injury.

Conclusion

For the foregoing reasons, Torrance Memorial Physician Network’s motion for summary adjudication is DENIED.

Moving Party to provide notice.

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Dated this 14th day of March, 2018

Hon. Marc Gross

Judge of the Superior Court