2018-00226466-CU-MM

Sarah Williams vs. Michael S. Mahoney, M.D.

Nature of Proceeding: Demurrer to Second Amended Complaint (Sutter Medical Center)

Filed By: Kaempfer, Diana R.

The demurrer of defendants Sutter Health Sacramento Sierra Region dba Sutter Medical Center Sacramento, and Sutter Valley Medical Foundation dba Sutter Medical Foundation (collectively “Sutter”) to the Second Amended Complaint (“2AC”) is SUSTAINED without leave to amend.

*** If oral argument is requested in an attempt to obtain leave to amend, plaintiffs shall be prepared to specifically discuss the new or different facts which may now be alleged in good faith to overcome the deficiencies noted below. ***

The court notes that the caption page for all papers filed in this case should reflect the caption of the original complaint filed on 2/1/2018 regardless of the fact that the name of one of the plaintiffs has subsequently changed.

Factual Background

This is a medical malpractice case brought by plaintiffs Sarah Williams and Erik Elkington, who were at all relevant times engaged to be married, living together and domestic partners who ultimately married in March 2018, shortly after this litigation was commenced. The 2AC generally alleges that various defendants failed to treat Sarah’s ulcerative colitis properly and caused her to suffer injury, including but not limited to a miscarriage. The 2AC purports to assert a cause of action for professional negligence by Sarah and a second for negligent infliction of emotional distress (“NIED”) by Erik, with both claims directed at all named defendants.

The NIED claim now pleads the following:

51. At all times mentioned herein, Plaintiff ERIK…was an adult who was present at all times during the stated care and treatment of Plaintiff SARAH… and observed and witnessed at that time through his own sensory perceptions the negligent conduct, errors and omissions of Defendants, both prior to admission and at SUTTER MEDICAL CENTER SACRAMENTO, which resulted in and were the proximate cause of the serious and permanent physical injuries sustained by Plaintiff SARAH…after the perforation of her bowel caused widespread sepsis and led to the loss of her large intestine and loss of their unborn child due to Defendants’ failure to treat SARAH’s toxic megacolon. Further, Plaintiff ERIK…personally observed SARAH in a severely compromised position, brutally afflicted and traumatically anguished from her acute pain, sepsis and related physical symptoms after the perforation of her intestines, and both understood and expressed great concern to SARAH’s health care providers about the severity of her symptoms and life-threatening condition which resulted from the medical negligence of Defendants, and each of them, as well as concern about its adverse impact on their unborn child. Defendants’ failure to timely and appropriately treat Plaintiff SARAH[’s] toxic megacolon caused the miscarriage and loss of their unborn child, resulting in extreme emotional distress to Plaintiff ERIK…who stood by helplessly and witnessed and understood this series of tragic events at the time they occurred.

52. As a direct and proximate result of the negligence of Defendants, and each of them, which was personally observed and understood by Plaintiff ERIK…both prior to and during the hospitalization of Plaintiff SARAH…and resulted in permanent injuries to her, including miscarriage, all of which was personally observed and understood by ERIK at the time it occurred, he has been deprived of enjoyment of life by reason of the loss of their unborn child.

Despite the breadth of these allegations, Erik clarified in connection with the prior round of demurrers and again clarifies here that his bystander NIED claim is premised solely on injury to his unborn child, with no emotional distress damages being sought for injuries suffered by Sarah.

Demurrer. The Sutter defendants now demur to Erik’s NIED cause of action, arguing that the allegations are insufficient to establish the second element: His presence at the scene of the injury-producing event and his contemporaneous awareness that this event was causing injury to his unborn child. (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.) Sutter points out that in Justus v. Atchison (1977) 19 Cal.3d 564, the Supreme Court considered the allegations of NIED by two fathers whose children were stillborn and explained that even though they were present during delivery, saw emergency procedures performed, heard the fetal heartbeat decelerate and recognized the anxiety of the medical providers, the fathers’ claims failed because neither was aware of the injury until the doctor informed them of the baby’s death and “shock caused by learning of the accident from others after its occurrence will not support a cause of action under Dillon [v. Legg].”

Sutter maintains that Erik did not witness the injury-producing event and the 2AC is not entirely clear as to when the miscarriage occurred (something which is in any event difficult to determine). According to Paragraphs 23-24, Sarah underwent emergency surgery and the “medical team” explained to Erik that the focus was on keeping Sarah alive, with the baby not likely to survive but there is no allegation Erik personally observed the surgery, witnessed the miscarriage or how he learned of it. Sutter further

asserts that Erik did not have a contemporaneous understanding of the alleged medical negligence as it was occurring nor could he understand whether the miscarriage was caused by it or something else, especially in light of precedent suggesting that lay persons lack the knowledge and understanding to contemporaneously perceive medical malpractice in all but the most extreme cases ( e.g., mistakenly amputating the wrong limb). That the 2AC alleges Erik accompanied Sarah to every appointment, asked “medical questions” and “conducted his own medical research to learn more” about Sarah’s condition is not only impermissibly conclusory but also insufficient to demonstrate he had the medical knowledge necessary to contemporaneously understand the alleged malpractice as it was occurring.

Opposition. Erik opposes, maintains that he has adequately pled all elements necessary for his bystander NIED cause of action including his personally witnessing the easily-discernible medical negligence of defendants which he understood and appreciated as it occurred and which caused the unnecessary loss of his unborn child. The 2AC specifically alleges Erik was present at the scene of the injury producing event by virtue of being present during both emergency room visits and throughout Sarah’s hospitalization and was aware at the time that defendants’ negligence was causing injury to her “as the symptoms of toxic megacolon are severe and unmistakable – even to a layperson” and to his unborn child. Citing Ochoa v. Superior Court (1985) 39 Cal.3d 159 and the more recent decision of Keys v. Alta Bates Medical Center (2015) 235 Cal.App.4th 484, the opposition contends that defendants’ inaction or failure to treat their patient can form the basis of an NIED cause of action and thus, even the emergency room doctors who initially sent Sarah away without treatment can be liable for NIED but the failure to treat extends to those responsible for Sarah’s care when her colon perforated on 3/24/2017, triggering a sudden, dramatic change of symptoms and repeated requests for medical intervention. Erik was present at this time and was aware Sarah was in acute distress and thus, did not need to be a medical professional to understand that Sarah was not being treated and was experiencing an injury-producing event which could and did cause injury to the unborn child. Therefore, based on these facts, it was readily apparent even to a layperson when and how Erik’s unborn baby was injured; it was not the result of some subtle medical complication but rather the result of toxic megacolon, the symptoms of which are obvious, and defendants’ failure to promptly treat this condition.

The opposition concludes by conceding that Erik’s NIED claim may not be viable as against all of the various defendants named in the complaint, given their different roles at different times but requests that Erik at least be given the opportunity to proceed to the discovery stage “in order to determine what he knew…concerning the negligent care rendered to the patient and the resultant injury to their unborn child” and when. (Oppos., p.9:13-17.)

Reply. Sutter’s Reply maintains that the 2AC fails to plead facts demonstrating Erik either had a contemporaneous understanding of any medical negligence causing the miscarriage or was present when the miscarriage occurred. Instead, his opposition merely explains how he may have had awareness of the allegedly negligent treatment of Sarah even though this is admittedly not the basis for his NIED claim but more importantly, the Opposition did not address how Erik could have both witnessed and appreciated the negligence which purportedly caused the miscarriage or establish Erik was present when the miscarriage occurred. Finally, Erik’s request to move into the discovery phase must be denied since no amount of discovery will enable him to cure

the inability to establish his presence at the scene of the injury-producing event and his contemporaneous awareness that this event was causing injury to his unborn child.

Analysis

At the outset, it must be noted that in ruling on the earlier round of demurrers in this case this court specifically found Erik’s reliance on Ochoa and Keys to be misplaced as the NIED claims asserted in these two cases were predicated on the defendants’ failure to provide urgently needed medical treatment rather than the negligent provision of care. Moreover, the court explained there was no antecedent injury-producing event in either Ochoa or Keys; in the former, the decedent died after catching pneumonia while in the latter, the decedent experienced a post-surgical complication which was not the result of negligence. In contrast, in the case at bar, plaintiffs’ allegations in Paragraph 24 of the First Amended Complaint made clear that cause of the miscarriage was “due to the trauma of the emergency surgery and the physical stress [Sarah] endured” following the intestinal perforation on 3/25/2017, rendering inapplicable the Ochoa and Keys decisions which were premised on a failure to provide emergency care.

In an apparent attempt to create the impression that the facts of this case are somehow similar to Ochoa and Keys, the 2AC now omits the earlier factual allegation that the miscarriage was the result of the trauma and stress of Sarah’s emergency surgery on 3/25/2017 and instead characterizes the medical care which plaintiffs insist was substandard as a failure to provide medical care à la Ochoa and Keys. However, California’s “sham pleading” doctrine law generally prohibits a plaintiff from omitting “harmful allegations” from amended pleadings in order to avoid attacks by demurrer or other motions (see, e.g., Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408) and thus, Erik cannot now escape the earlier admission about the cause of the miscarriage being the emergency surgery by merely deleting the allegation from the 2AC. Moreover, Erik’s own argument in the opposition that the miscarriage was a result of defendants’ failure to provide care is undermined by his concluding request to do discovery “concerning the negligent care rendered to the patient,” a statement which effectively concedes this is not a case of failure to provide care like Ochoa and Keys.

The 2AC now asserts in pertinent part:

In early March 2017, Sarah was still having symptoms of Ulcerative Colitis (“UC”) but was discharged from the emergency department rather than admitted to the hospital (¶16);

On 3/19/2017 she returned to the emergency department with worsening UC symptoms but was discharged with pain medication rather than receiving a gastroenterological consult (¶19);
On 3/22/2017 Sarah’s gynecologist arranged to have her admitted to the hospital through the emergency department, where she was mistakenly believed to have constipation (¶21);
On 3/24/2017 Sarah’s was diagnosed with constipation which was attributed to her pain medication and “around the time of [this] consultation,” her large intestine perforated “due to her UC developing into Toxic Megacolon which had negligently gone undetected…” and suddenly began experiencing a dramatic change in symptoms (¶22); seeing this, Erik “became increasingly more concerned about the health of the fetus because he knew there was a direct correlation between the health of SARAH and the health of their unborn baby” (¶22);

On 3/25/2017 Sarah went into acute distress and Erik’s pleas for urgent treatment were ignored until Sarah “crashed,” and the Chief of Surgery had Sarah “immediately triaged for emergency surgery and a total colectomy was performed” (¶¶23-24);

“As soon as surgery was ordered, ERIK knew [the] baby was in severe distress, as the medical team explained…[the] goal was now focused solely on keeping SARAH alive and the baby would not survive” and “ERIK knew that the health care providers’… failure to provide necessary…care and treatment to SARAH directly led to the life-threatening exacerbation of her condition, as well as caused the unnecessary and unfortunate loss of their unborn child…” (¶24);

Erik accompanied Sarah to every appointment, often asked medical questions including whether her UC would have an impact on the pregnancy and warrant an early delivery, was present during the two Emergency Department visits in March 2017 when she was not treated or admitted despite her deteriorating condition, and “continually conducted his own medical research to learn more about SARAH’s condition, including causes, symptoms, and treatment options for UC” and therefore recognized the “downward course in March 2017” and was adamant she needed treatment for her benefit as well as the fetus (¶26); and

Throughout Sarah’s hospital admission, Erik “personally observed [her] severe and life-threatening medical condition [which] progressively deteriorated due to the lack of medical intervention…and personally observed, witnessed and understood the medical negligence and resultant complications which caused the miscarriage and loss of their unborn child; as well as appreciated the fact that it was the result of the medical negligence of the Defendants herein…[since] both before and after [the] emergency surgery, ERIK was the patient representative who interacted with the medical team…” (¶27).

Ochoa v. Superior Court (1985). In Ochoa, a boy confined in a juvenile detention facility died of pneumonia after authorities ignored his obviously serious symptoms, which included vomiting, coughing up blood, and excruciating pain. The mother who observed the neglect and recognized it as harming her son was permitted by the California Supreme Court to sue as a bystander for NIED because the injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention and such a failure to provide medical assistance (as distinguished from a misdiagnosis, unsuccessful treatment, or treatment which in retrospect turns out to have been inappropriate) is not necessarily hidden from the understanding awareness of a layperson.

Keys v. Alta Bates Medical Center (2015). In Keys, after the decedent underwent surgery, her sister and daughter observed her having difficulty breathing and believing there was an obstruction, the respiratory therapist suctioned the decedent’s mouth. When the surgeon arrived shortly thereafter, he tried to reposition the patient and suctioned her mouth and nose but she stopped breathing while her sister and daughter were present. The patient died about a week later, when life support was withdrawn. The two survivors were upset because the medical staff in attendance lacked a sense of urgency and they sued for wrongful death and NIED. The jury found in favor of the plaintiffs on both claims.

On appeal, the defendant contended there was no evidence that the plaintiffs meaningfully comprehended the medical negligence that led to the death of their family member at the time the negligence was occurring, relying primarily on Bird v. Saenz (2002) 28 Cal.4th 910. In Bird, two events were identified by the California Supreme

Court as potential injury-producing events: (1) The negligent transection of the patient’s artery and (2) the subsequent negligence by the medical professionals in failing to diagnose and treat the damaged artery. The Supreme Court held that the plaintiffs could not recover for bystander NIED for either event since (1) the plaintiffs were not present at nor did they observe the negligent transection and (2) the plaintiffs did not and could not meaningfully perceive the defendants’ professional negligence because “[e]xcept in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders.” (Bird, at 917.) The Court continued:

“Even if plaintiffs believed…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.” (Id.)

In the end, the majority on the First District Court of Appeal panel for disagreed with the defendant because it found the facts of Keys to be “more like Ochoa than Bird” ( Keys, at 490):

A reasonable inference can be drawn from the evidence that [the plaintiffs] were present and observed [the patient’s] acute respiratory distress and were aware that defendant’s inadequate response caused her death. When “‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.” [Cite.] [¶] We have no reason to question the jury’s conclusion that [the plaintiffs] suffered serious emotional distress as a result of watching [the patient’s] struggle to breathe that led to her death. The jury was properly instructed, as explained in Thing, that “[s]erious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.” … Viewed through this lens there is no question that [the plaintiffs’] testimony provides sufficient proof of serious emotional distress. … (Keys, at 490-491.)

Notably, the dissent found the defendant’s negligence in misdiagnosing the cause of the patient’s inability to breathe) to be unlike Ochoa, where the authorities ignored obvious signs of the juvenile’s distress and did nothing to treat the condition for almost two days. The medical personnel in Keys responded immediately to patient’s difficulty breathing but the plaintiffs felt their response was “inadequate” in the sense that they did not correct the problem but the plaintiffs could not observe and did not know that the medical team had not correctly diagnosed the cause. The dissent explained that under Bird, the most recent Supreme Court opinion addressing bystander emotional distress claims, it is not enough that the plaintiff bystanders observe the injured person’s suffering but must instead “experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.” Notably, Bird cited approvingly several cases in which NIED recovery was denied because of the bystanders’ lack of awareness of a misdiagnosis even though they were aware the treatment was failing to correct the patient’s physical problem. (See, Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318 [relative who watched paramedic conduct cursory medical examination that failed to detect signs of sickle cell shock was permitted to sue for wrongful death but not NIED because there was no evidence he was then aware the decedent was being injured by negligent conduct]; Breazeal v. Henry Mayo Newhall Memorial Hospital (1991) 234 Cal.App.3d 1329

[plaintiff who observed unsuccessful efforts to restore son’s breathing held not to have valid claim for NIED since there was no evidence that what physician was doing was “an injury-producing event” rather than unsuccessful attempt to correct existing injury nor was mother contemporaneously aware that such event was causing injury]; Meighan v. Shore (1995) 34 Cal.App.4th 1025 [wife who was a nurse feared her husband was having heart attack and believed he was not being treated appropriately in the emergency room could not sue for NIED after his condition was misdiagnosed because understanding perception of the injury-causing event is essential and if it cannot be perceived, recovery cannot be allowed].) Since the plaintiffs in Keys lacked awareness that the cause of their relative’s suffering was the defendant’s failure to correctly diagnose the cause, they are under Bird and the cases discusses therein precluded from NIED recovery notwithstanding the majority’s mischaracterization of the injury-producing event as “lack of acuity.” (Keys, at 491-494.)

Case At Bar. The facts of the case at bar bear scant resemblance to Ochoa, where the Supreme Court explained that the injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention, something which could by contemporaneously understood by a layperson. In the present case, the allegations of the 2AC make clear that Sarah was having ongoing problems with her UC and was treated albeit unsuccessfully over the course of several visits prior to her large intestine perforating on 3/24/2017 as a result of defendants’ alleged negligent failure to correctly diagnose Toxic Megacolon; then on 3/25/2017, when

Sarah “crashed, she was “immediately triaged for emergency surgery…” In short, Erik’s claim for NIED is not fairly characterized as one premised on any negligent failure to provide immediate medical attention but rather at best, on what may amount ultimately be proven to be one or more breaches of a professional standard of care relating to the diagnosis and treatment of Sarah’s UC. Thus, Ochoa does not control the outcome of the present dispute.

Keys also is factually inapposite for at least two reasons. As explained in the preceding paragraph, the present case does not arise from a failure to provide necessary medical care which even a mere layperson could understand. While the opposition attempts to characterize this as a case where defendants’ negligently failed to provide no medical care at all, the actual allegations of the 2AC confirm the opposite and fail to identify any particular time when Sarah was in need of immediate medical attention which she was not provided. The lengths to which Erik goes in an attempt to demonstrate his claimed understanding of defendants’ alleged negligent care effectively establishes that this is not actually a case of failure to provide medical care since no medical understanding is needed to show NIED based on the absence of medical care. Moreover, as shown above, the decedent in Keys experienced a post-surgical complication which caused her obvious difficulty breathing and despite a prompt medical response, the staff was unable to correctly diagnose the cause and remedy it before the patient stopped breathing, all in the presence of her sister and daughter. In contrast, Erik’s NIED claim is not premised on any injury which Sarah may have suffered in his presence as a result of defendants’ alleged negligent care but rather on the loss of his unborn baby due to the trauma and stress of Sarah’s emergency surgery on 3/25/2017 following the perforation of her intestine. Notably, the 2AC does not appear to allege that Erik was actually present when the miscarriage of the fetus occurred or even how he perceived it when it happened.

Finding that both Ochoa and Keys are distinguishable, this court returns to the

question of whether Erik meaningfully comprehended the alleged medical negligence that caused the death of the fetus at the time the negligence was occurring. Based on the 2AC, it appears that the negligence which is alleged to have caused the loss of the unborn child did not occur on 3/25/2017 when Sarah went into emergency surgery but rather in the months and days before the perforation of Sarah’s intestine which necessitated the surgery during which the baby was lost. According to the California Supreme Court’s decision in Bird, medical negligence including misdiagnosis is beyond the awareness of lay bystanders “[e]xcept in the most obvious cases” and thus, it is not enough for the bystander merely to observe the family member’s suffering but must instead “experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.” (Bird, at 917-918.) Consequently, Erik’s allegations in Paragraph 26 about accompanying Sarah to every appointment, asking medical questions and “continually conducted his own medical research to learn more about SARAH’s condition, including causes, symptoms, and treatment options for UC” in an attempt to establish he had a sufficient degree of medical acumen to recognize defendants’ alleged medical malpractice at the time it was occurring and to understand it was a cause of injury to his unborn fetus is of questionable legal significance in light of existing precedent.

In Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926 which bears many similarities with the case at bar, the Second District Court of Appeal affirmed the trial court’s sustaining of the defendant hospital’s demurrer to the NIED claim brought by the patient’s daughters. The patient underwent surgery during which her bowel was unknowingly nicked and while she was recouping, the two daughters noticed her condition was deteriorating with various symptoms (e.g., difficulty breathing, not making urine, sweating, confusion, etc.) for which they beseeched the medical staff to conduct additional tests. The NIED plaintiffs alleged they were “experienced in the medical field and understood and appreciated the dangers faced by their mother in the event no curative action was taken” and “[awareness] that their mother was suffering and deteriorating as a result of Defendants’ medical neglect but were unable to do anything but plea[d] with Defendants to respond to their mother’s needs.” (Morton, at 929-930.) The hospital demurred to the NIED claim, contending that the plaintiff daughters had failed to allege they were present at the injury-producing event when it occurred and were contemporaneously aware it was causing injury to their mother as well as that they, as laypersons, could not have perceived the alleged failure to diagnose and treat the patient’s peritonitis.

After discussing Dillon, Ochoa, Thing and especially Bird, the Second District rejected the plaintiffs’ reliance on Ochoa partly because Ochoa did not involve any claim of medical malpractice and partly because Bird distinguished a layperson’s perceptions of the ordinary accident case from those arising from medical malpractice (i.e., “a parent knows when [a] child is in need of medical attention but does not, in the eyes of the law, know of the injury-causing effects of that treatment”). (Morton, at 932-934.) The Court of Appeal added that a rule permitting bystanders to sue for NIED based on unperceived medical errors hidden in a course of treatment cannot be reconciled with Thing’s requirement that the plaintiff be contemporaneously aware of the connection between the injury-producing event and the injury since, to do so, would “impose nearly strict liability on health care providers for NIED to bystanders who observe emotionally stressful procedures that turn out in retrospect to have involved negligence.” (Morton, at 934.) In this context, the Court considered a scenario not far afield from the present case where a “close relative” of the victim sitting at bedside

may perceive the latter is suffering and out of concern and/or dissatisfaction with the medical treatment, the relative conducts research before suing the medical professionals for bystander NIED. (Morton, at 934-935.) Such a claim should be barred because the “merely negligent actor does not owe a duty the law will recognize to make monetary amends to all persons who may have suffered emotional distress on viewing or learning about the injurious consequences of his conduct.” (Morton, at 935.)

Moreover, the Second District noted that medical malpractice generally requires expert testimony and even Bird pointed out that courts have not found a layperson’s observation of medical procedures to satisfy the requirement of contemporary awareness of the injury-producing event. (Morton, at 935.) Still, the court concluded that even if the law were to recognize a specific class of “nonlayperson bystanders” could recover for NIED based on observation of the consequences of an injury-producing event, the daughters in Morton had failed to plead factually what “expertise” enabled them to understand the medical treatment given their mother was inadequate, explaining that the allegation they are “experienced in the medical field” is conclusory and insufficient to withstand demurrer. (Morton, at 935.) Erik’s allegations in Paragraph 26 suffer from this same factual deficiency.

That Erik has failed to plead facts sufficient to state a valid bystander NIED claim is further reinforced by the California Supreme Court’s decision in Justus v. Atchison (1977) 19 Cal.3d 564. There, two married couples filed similar actions for medical malpractice, wrongful death and bystander NIED after the stillborn birth of their children. The trial court sustained the demurrer to the wrongful death and NIED claims without leave to amend and the resulting judgment was ultimately affirmed in full. After explaining why the wrongful death claims failed, the Supreme Court considered whether the two plaintiff husbands could establish they suffered shock as a result of the direct sensory and contemporaneous observance of the accident, as opposed to merely learning of the accident from others. (Justus, at 582.) One father alleged he saw the manipulation of the fetus with forceps and by hand along with the emergency procedures performed in connection with the attempted Caesarean section while the other pled he was aware of the diminution of the fetal heart tones and observed the nurse’s anxiety, the resulting emergency and the failure of the doctor to respond promptly when called but both claim to have seen the prolapsing of the umbilical cord and the pain and trauma of his wife before the attending physician said the fetus had died. (Justus, at 584.)

The Supreme Court first reiterated that a claim under Dillon requires more than mere physical presence, as the shock must result from a “direct emotional impact” caused by the plaintiff’s “sensory and contemporaneous observance of the accident” but even though each father was in attendance at the delivery room, the death of the fetus was an event which by its very nature was hidden from his contemporaneous perception as he could not see the injury to the unborn child nor could he otherwise sense it: “To put it another way, he had been admitted to the theater but the drama was being played on a different stage.” (Justus, at 584.) The allegations that each husband witnessed disturbing developments in the delivery room including the medical staff’s concern and use of emergency procedures “no doubt induced a growing sense of anxiety on the plaintiff’s part” but this anxiety “did not ripen into the disabling shock which resulted from the death of the fetus until he was actually informed of that event by the doctor; prior to that moment, as a passive spectator he had no way of knowing that the fetus had died.” (Justus, at 585.) In the end, it was held that the fathers’ distress was not

caused by what was seen and heard during the attempted delivery but rather from what they were told by the doctors the babies had not survived, thereby precluding the fathers from being able to satisfy the requirement of a personal “sensory and contemporaneous observance of the accident.”

Since Erik has not for the reasons explained above pled facts sufficient to establish he had the medical expertise to perceive the alleged medical malpractice which ostensibly occurred over the course of several days or even months, the court also finds that the NIED he claims to have suffered as a result of the miscarriage of the unborn child is not premised on his own plaintiff’s “sensory and contemporaneous observance of the accident” but rather based on being told by the medical team that the baby would not survive Sarah’s emergency surgery following the perforation of her intestine. Erik’s NIED claim fails for the additional reason that he has not pled he was present in the room where the surgery occurred and was then able to perceive personally the loss of the fetus.

Miscellany. Although the opposition concedes that Erik’s NIED claim may not be viable as against all of the various doctors named in the complaint given their different roles at different times the court need not pursue this further since it has already determined that the NIED claim fails for the reasons explained above.

The court must also reject plaintiffs’ request to proceed to the discovery stage in order to establish what Erik knew about defendants’ negligent care of Sarah and the injury to the unborn child since such information is necessarily already in his possession, thereby obviating the need to pursue discovery on this issue.

Disposition

Based on the reasons set forth above, Sutter’s demurrer is hereby sustained.

Since the court concludes plaintiffs have no reasonably possibility of curing the defects cited above, leave to amend is denied.

*** If oral argument is requested in an attempt to obtain leave to amend, plaintiffs shall be prepared to specifically discuss the new or different facts which may now be alleged in good faith to overcome the deficiencies noted above. ***

Pursuant to CRC Rule 3.1312, demurring defendants to prepare a judgment of dismissal of Erik’s NIED cause of action only.

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