2014-00159905-CU-MM

Luisa Cirimaitoga vs. Sutter Health Sacramento Sierra Region

Nature of Proceeding:      Hearing on Demurrer (Joinder by Sutter Health Sacramento Sierra

Filed By:   Pollara, Dominique A.

Defendant Mark Zhiming Zhang, M.D.’s demurrer to Plaintiffs’ Luisa and Semi
Cirimaitoga’s complaint is ruled upon as follows.

Defendant Sutter Health Sacramento Sierra Region’s joinder is granted.

In this medical malpractice action, Plaintiffs allege causes of action for negligence,
negligent infliction of emotional distress, and loss of consortium arising out of
allegations that Plaintiff Luisa Cirimaitoga suffered injuries due to defendants’
negligence.  Mrs. Cirimaitoga alleges that she was admitted to Sutter Memorial,
developed a maternal sepsis and underwent a caesarian section and ultimately
delivered a stillborn child.

Defendant demurs to the second cause of action for NIED on the basis that it is
duplicative of the first cause of action for negligence.  In the NIED cause of action,
Mrs. Cirimaitoga seeks damages for the emotional distress “arising from the abnormal
event of participating in a negligent conducted pregnancy.”  (Comp. ¶ 23.)  Defendant
argues that if Mrs. Cirimaitoga can prove Defendants were negligent, she will be able
to recover emotional distress damages from witnessing the stillbirth under her first
cause of action for negligence.

Multiple causes of action cannot be asserted based on duplicative allegations.  ( Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4   490, 501.)  In Johnson v.
Superior Court (1981) 123 Cal. App.3d 1002, a plaintiff alleged causes of action for
medical malpractice and NIED arising out of the death of her fetus.  The trial court
sustained a demurrer to both causes of action but the court of appeal reversed finding
that while the demurrer to the NIED cause of action was properly sustained, the
demurrer to the medical malpractice cause of action was improperly sustained.  “It is
nonetheless patently clear that a mother forms a sufficiently close relationship with her
fetus during pregnancy so that its stillbirth will foreseeably cause her severe emotional
distress.  Where the stillbirth results from medical malpractice rather than from natural
and unavoidable causes the loss is all the more poignant and should be legally
redressable.  The solution to the problem lies…in recognizing that the emotional
distress arising from the sensory impact of the death of the child is
compensable as part of the mother’s cause of action for malpractice to herself.”
(Id. at 1007 [emphasis added].)  Thus Johnson makes clear that the injury sought to be
addressed in Plaintiff’s second cause of action for NIED is a component of damages
available to her under her first cause of action for negligence and not as part of a
separate stand alone cause of action.

Plaintiffs’ opposition arguing that a separate cause of action for NIED may be pled
based on claims of emotional distress suffered as a result of the stillborn child is not
persuasive.   Plaintiffs argue that Johnson is an old case and that more recent cases
support the ability to allege a separate NIED claim in these circumstance.  However,
the very authorities cited by Plaintiffs actually confirm Defendant’s point.  Indeed,
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Burgess v. Superior Court (1992) 2 Cal.4   1064, cited Johnson and summarized it as
holding that the right to recover emotional distress damages suffered as a result of
stillbirth were part of a mother’s pending malpractice claim.  (Id. at 1078.)  In addition,
the other case cited by Plaintiffs for the proposition that a separate claim for NIED may
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be pled, Zavala v. Arce (1997) 58 Cal.App.4   915, also cited Johnson favorably.
Indeed, Zavala states that “[a]s we have discussed, the Johnson court stated that the
mother’s sensory perception of her fetus’s death was merely an ‘aspect’ of the
mother’s cause of action for personal injuries which ‘enhance[d] her measure of
damages.’”  (Id. at 931 [quoting Johnson, supra, 123 Cal.App.3d at 1007.)

In the end, it seems that Plaintiffs appear to misconstrue Defendant’s arguments.
Defendant is not arguing that Mrs. Cirimaitoga cannot recover for emotional distress
arising from the result of the stillborn child and in fact admits that she can.  Defendant
simply argues that the NIED cause of seeking such damages is duplicative of her first
cause of action for medical malpractice, in which emotional distress is an element of
Cirimaitoga’s damages

As a result, the demurrer to the second cause of action is sustained without leave to
amend.  As seen from the relevant authorities, including the very authorities cited by
Plaintiffs in opposition, Mrs. Cirimaitoga’s claims for emotional distress arising from the
death of the child are “compensable as part of the mother’s cause of action for
malpractice to herself.”  The Court, however, grants leave to amend the first cause of
action for medical malpractice to allow Plaintiffs to make clear that Mrs. Cirimaitoga is
seeking the emotion distress damages sought in the NIED cause of action in
connection with the first cause of action for medical malpractice consistent with the
authorities discussed above.

Plaintiffs may file and serve an amended complaint amending the first cause of action
consistent with the above no later than July 11, 2014.  Defendants shall file and serve
their responses within 10 days thereafter, 15 days if the amended complaint is served
by mail.  (Although not required by any statute or rule of court, Plaintiffs are requested
to attach a copy of the instant minute order to the amended complaint to facilitate the
filing of the pleading.)

This minute order is effective immediately.  No formal order pursuant to CRC rule
3.1312 or other notice is required.