2013-00144827-CU-MM

Khadyjah Fofanah vs. Thomas E. Melchione, M.D.

Nature of Proceeding:    Hearing on Demurrer (Joinder by Albert B. Schraner, M.D.)

Filed By:   Watts, Bianca S.

Defendant Thomas E. Melchione, M.D, et al.’s demurrer to Plaintiffs Khadyjah Fofanah
and Joseph Martin’s first amended complaint and motion to strike are ruled upon as
follows.

The Court originally issued a tentative ruling sustaining the demurrer without leave to
amend and dropping the motion to strike as moot.  While the demurrer was
unopposed, Plaintiffs appeared at the May 20, 2014, hearing.  The Court affirmed the
ruling as to Plaintiff Joseph Martin but continued the hearing to allow Plaintiff Khadyjah
Fofanah to file an opposition.  The Court has now considered the opposition and
vacates the ruling with respect to Plaintiff Khadyjah Fofanah.  First, the Court reprints
the original tentative ruling issued for the May 20, 2014, hearing.

Defendant Thomas E. Melchione, M.D, et al.’s unopposed demurrer to Plaintiffs
Khadyjah Fofanah and Joseph Martin’s first amended complaint is sustained
without leave to amend.  The unopposed motion to strike is dropped as moot.

The Court received, but did not consider, Plaintiffs’ “ex parte” application filed
on May 19, 2014, one court day prior to the hearing.  To the extent Plaintiffs had
an opposition to the instant demurrer, they were required by CCP 1005(b) to file
and serve such opposition no later than nine court days prior to the hearing.

Defendants Albert Schraner, et al.’s joinder is dropped at the request of the
joining parties.

The Court previously sustained Defendants demurrer to the complaint with and
without leave to amend.  Specifically, it sustained the demurrer to the complaint
to the extent it alleged a cause of action for wrongful death of a fetus without
leave to amend as no such cause of action exists. (Justus v. Atchinson (1977) 19
Cal.3d 564, 580 [disapproved on other grounds in Ochoa v. Superior Court (1995)
35 Cal.3d 159, 171].) Additionally, the Court sustained the demurrer with leave to
amend as to the claims directed at defendants Melchione and Curkendall on the
basis that Plaintiffs had not alleged any wrongful conduct on their part.

The Court also sustained the demurrer to any claim alleged by Plaintiff Martin as
he only alleged that he was the father of the fetus, that he was present when
Curkendall advised them of the fetus’ death and when Curkendall discussed the
results of the postmortem exam. But Martin had not alleged any facts
demonstrating that any of the moving defendants breached any duty to him.   Finally, the Court sustained the demurrer to the claims directed against
defendant DeWitt as it was uncertain if Plaintiffs were alleging that DeWitt
caused the fetal demise or whether they were attempting to allege a medical
negligence cause of action against her on the basis that she failed to inform
Fofanah that she had been colonized by bacteria.

The allegations in the FAC are similar to the allegations in the original complaint.
Plaintiff Kadyjah Fofanah alleges that she was sent to be seen by Capitol
OB/GYN which assigned her a “midwife”, defendant DeWitt, who plaintiffs allege
was not qualified to understand the issues with the pregnancy.  (FAC. ¶ 12.)
They allege that DeWitt was dismissive of the concerns raised during an
appointment, refused to perform tests and stated that the child was not going to
be born early despite their worries to the contrary.  (Id. ¶ 19.)  Plaintiffs allege
that the next day they went to the hospital and Fofanah was in labor and a faint
heartbeat from the fetus which then disappeared.  (Id. ¶ 24.)  A nurse found Dr.
Curkendall who advised Plaintiffs that the fetus was likely no longer alive and
that Fofanah should go through with a natural delivery of the “already dead
baby” and that she delivered the fetus stillborn.  (Id. ¶¶ 24-25.)  Fofanah alleges
that she saw Dr. Melchione for pain associated with the delivery.  (Id. ¶¶ 27.)
Plaintiffs allege that they saw Curkendall at his offices at Capital OBGYN to
discuss the cause of the fetus’ death.  (Id. ¶ 29.)

Defendants demur to the FAC on the basis that they have not alleged a cause of
action for medical malpractice against them because there are no allegations
that contributed to or caused the death of the fetus and also that Plaintiff Martin
has no claim against any defendant.

Defendants’ demurrer to the FAC on the basis that Plaintiffs have failed to state
a claim for medical negligence against them is sustained without leave to
amend.  Plaintiffs appear to allege that the cause of death of the fetus was “the
bacteria that was present that required antibiotic treatment when labor
began.”  (FAC ¶ 29.)  However, there are no allegations that either Melchione or
Curkendall were involved in any care of Plaintiff Fofanah prior to the demise of
the fetus.  Plaintiff Fofanah did not see either Melchione or Curkendall until after
the delivery.  (FAC ¶¶ 24-25, 27, 29.)  Further, there are no allegations that Dewitt
failed to advise Fofanah that she was colonized with a bacteria or that she
somehow caused the colonization.  As a result, given that Plaintiffs failed to
allege any facts that show that moving defendants caused or contributed to the
fetus’ death, they failed to state a cause of action for medical negligence.  (
Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130-131 [if the allegedly negligent
conduct does not cause the damage “it generates no cause of action in tort.”])

In addition, Plaintiff Martin has not stated any cause of action on his own behalf.
Apparently he seeks to assert a negligent infliction of emotional distress claim
as a result of being present when Curkendall advised Plaintiffs of the death of
the fetus and ultimately informed them of the cause of death.  To state a claim
for negligent infliction of emotional distress based on a bystander theory,
Plaintiff Martin was required to allege, among other things, that he was present
at the scene of the injury producing event when it occurred and was aware it
was causing injury to Plaintiff Fofanah.  ( Thing v. LaChusa (1989) 48 Cal.3d 644,
647.)  However, as set forth above, Plaintiffs appear to allege that the cause of  death was the presence of bacteria during delivery which they were not informed
of until after the delivery and thus Martin has not alleged that he was aware of
the injury producing event as it was occurring.  Analogous to this is  Golstein v.
Superior Court (1990) 223 Cal. App. 3d 1415. There, the parents of a child with
curable cancer watched as he underwent radiation therapy. That the child had
been lethally overexposed was not discovered until later, when he developed
symptoms of radiation poisoning. While the plaintiffs had observed the
procedure that was later determined to have been an injury-producing event,
they were not then aware the treatment was causing injury. In denying recovery,
the Court noted  Thing’s policy statement requirement that an [NIED] plaintiff
experience a contemporaneous sensory awareness of the causal connection
between the negligent conduct and the resulting injury. As the Supreme Court
stated the rule in  Thing, the plaintiff must be ‘present at the scene of the injury-
producing event at the time it occurs and . . . then aware that it is causing injury
to the victim . . . .’ ” (Golstein, supra, at pp. 1427-1428, fns. omitted, quoting
Thing, supra, at p. 668.)

Defendants’ demurrer to the FAC is sustained without leave to amend.  Leave to
amend is not given as Plaintiffs were previously given leave to amend and have
failed to correct the deficiencies in the previous pleading.  Further, Plaintiffs did
not oppose the demurrer to the original complaint nor did they oppose the
instant demurrer and thus have failed to demonstrate any reasonably possibility
of amendment to cure the defects.

Given the Court’s ruling on the demurrer, the motion to strike is moot.

Defendants’ counsel shall prepare a formal order for the Court’s signature
pursuant to CRC 3.1312 and a judgment of dismissal.

After carefully considering self-represented Plaintiff Fofanah’s FAC in light of her
opposition, the Court finds that Plaintiff has indeed alleged facts to states a medical
negligence cause of action against the moving Defendants.

As seen in the original ruling, Defendants demurred to the FAC on the basis that
Plaintiff failed to allege that any of them contributed to or caused the death of the fetus.
While Defendants argue that there are no allegations that Melchione or Curkendall
were involved in the care of Plaintiff Fofanah prior to the demise of the fetus, after
reexamining the FAC in light of Plaintiff’s opposition, the Court finds that Defendants
overlook the true thrust of Plaintiff’s allegations.  Indeed, she has alleged that she was
referred to Defendant Capital OBGYN because she needed to be under a physician’s
care for the last few months of her pregnancy.  (FAC ¶ 12.)  Plaintiff has alleged that
Defendants Melchione and Curkendall were principal decision makers and equity
owners of Capital OBGYN (FAC ¶¶ 1, 2.)  She alleges that while she was sent there,
to be under a doctor’s care, she was never seen by a doctor.  (Id.)  She alleges that
Capital OBGYN employs a business model whereby they accept patients and transfer
the responsibility and duty of the physicians to the midwives so that the physicians
never provide services or care to patients.  (FAC ¶ 14.)

Plaintiff alleges that no doctor ever discussed the risks of the presence of bacteria or
treatment to ensure no harm would come to Plaintiff or her baby despite the fact that
the medical records indicated the presence of bacteria that would require antibiotic
treatment as soon as labor began.  (Id. ¶ 15.)  Plaintiff alleges that it was negligent on
the part of Melchione and Curkendall to not see her on February 16, 2012 during her
scheduled appointment at which she was experiencing pain and discomfort.  (Id. ¶¶
17, 18.)  Plaintiff alleges that she was instead seen by Defendant DeWitt, a nurse
practitioner, to whom Melchione and Curkendeall negligently assigned their duty to see
Plaintiff.  (Id. ¶ 19.)  As set forth in the original ruling, while Plaintiff did not allege that
DeWitt failed to advise her that she was colonized with a bacteria, or that she [DeWitt]
caused the bacteria, she did allege that DeWitt acted negligently in that she was
dismissive of Plaintiff’s concerns, refused to perform tests, would not get a doctor,
assured her that everything was fine, that her baby was not coming early, and told her
to go home.  (Id.)  Further, she had previously alleged in the FAC that no one
discussed the risks of bacteria with her.  Plaintiff alleged that she followed DeWitt’s
advice and went home and her pain increased, becoming so severe that she went to
the hospital on February 17.  At the hospital she alleges that Curkendall dismissed the
idea of a caesarean section saying it was probably too late to save the baby.  (Id. ¶
24.)  Ultimately she alleges that Curkendall informed her that the likely cause of the
baby’s death was the presence of bacteria that was present and which required
antibiotic treatment to start when labor began.  (Id. ¶ 29.)

In sum, while Defendants are correct that Plaintiff did not allege that Melchione and
Curkendall were specifically involved in her treatment prior to the demise of the fetus,
Plaintiff is essentially alleging that they should have been involved but neglected to do
so, consistent with their business model at OBGYN of delegating their duties to nurse
practitioners such as their employee Defendant DeWitt who was herself negligent and
that their conduct breached their duties to her and caused her injuries.  Further she
alleged that Curkendall saw her on February 17, 2012, before the stillbirth, and
dismissed the idea of a caesarean section.

While Defendants’ reply argues that Plaintiff is essentially still focusing on a non-
existent wrongful death of a fetus cause of action, the Court disagrees.  Indeed, the
opposition and the FAC focus on injuries to herself for the alleged negligence.  Further,
the Court also notes that while there may not be a cause of action for wrongful death
of a fetus, a mother is entitled to assert a medical negligence cause of action for
injuries suffered in a negligent delivery and in fact can recover for emotional distress
incurred as a result of perceiving the fetus’ death as an aspect of the medical
negligence cause of action.  (Johnson v. Superior Court (1981) 123 Cal.App.3d 1002,
1007; see, also Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1077-1085 [“During
pregnancy, the mother and child are a unique physical unit. The welfare of each is
“intertwined and inseparable.” (Nocon, Physicians and Maternal-Fetal Conflicts:
Duties, Rights and Responsibilities (1990- 1991) 5 J. of Law and Health 1, 15.)  Under
such circumstances, it cannot be denied that a mother, who carries her fetus to term
and begins labor, has formed a sufficiently close bond with her fetus that injury to the
fetus during labor and delivery will cause her severe emotional distress. Nor can it be
denied that this distress is foreseeable to her obstetrician.  (See, ante, at p. 1076.).)

Thus, having now considered Plaintiff Fofanah’s opposition and carefully reexamined
the allegations of the FAC, the demurrer is overruled as to Plaintiff Fofanah.  The
Court finds that Plaintiff Fofanah has, for pleading purposes, alleged a cause of action
for medical negligence against these moving defendants.  The Court rejects the
contention by Defendants that Plaintiff failed to allege any conduct that indicates they
contributed to or caused the death of the fetus, or any other injuries to Plaintiff.

In addition, the unopposed motion to strike is no longer moot in light of the above.  It is
denied.  Defendants seek to strike the portions of the FAC’s prayer for relief which
request the funeral and burial expenses of the stillborn fetus on the basis that there is
no causes of action for wrongful death of a fetus.  While there is no such cause of
action, the very case relied upon by Defendants actually makes clear that a mother
may seek these expenses as an incident to the mother’s cause of action for personal
injuries.  (Justus v. Atchison (1977) 19 Cal.3d 564, 581, fn.15. [“Out-of-pocket
expenses such as medical and burial costs are recoverable as incidents of its [the
fetus’s] mothers’ cause of action for personal injuries.”].)  The motion to strike must be
denied.

Again, however, the original ruling sustaining the demurrer without leave to amend as
to Plaintiff Martin was affirmed at the May 20, 2014, hearing.

Defendants shall file and serve their answer to the FAC, as alleged by Plaintiff Fofanah
only, no later than July 11, 2014.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or other notice is required.,