2013-00144827-CU-MM

Khadyjah Fofanah vs. Thomas E Melchione MD

Nature of Proceeding: Hearing on Demurrer and Motion to Strike (Joinder by Albert B.

Filed By: Watts, Bianca S.

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
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negligence. (Williams v. Wraxall (1995) 33 Cal.App.4 120, 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.