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Horvitz & Levy LLP submitted a brief in this California Supreme Court case, and one of the firm’s attorneys, David Ettinger, participated in the oral argument on behalf of amici curiae the California Medical Association, California Dental Association, and California Healthcare Association. The resulting opinion gives much needed guidance regarding the circumstances when a plaintiff may recover for emotional distress suffered from witnessing medical malpractice committed on a close family member.

After its landmark Dillon v. Legg decision over 30 years ago allowing recovery merely for witnessing harm to another, the Supreme Court gave little guidance about bystander emotional distress liability in medical malpractice cases, and none at all in the 13 years since the court refined the Dillon rules in Thing v. La Chusa (a case in which Horvitz & Levy also participated as amicus curiae). Under Thing, a bystander-emotional-distress plaintiff must not only show that the person harmed was a close relative and that the plaintiff suffered serious emotional distress, but also that the plaintiff contemporaneously observed the injury-producing event and was then aware it was causing harm to the relative.

The plaintiffs in Bird were two adult daughters who saw their mother swollen and discolored as she was wheeled from the operating room to the recovery room and then again about an hour later when she was wheeled back for further surgery. The mother’s condition was caused by a negligent cutting of an artery during the original operation. The plaintiffs claimed that even though they did not witness the surgeon’s negligence in cutting the artery, they did see the defendant physicians’ failure to diagnose and treat their mother's condition after the surgery.

The Supreme Court held the plaintiffs had no viable emotional distress claims. Specifically, the court explained that the plaintiffs “had no sensory perception whatsoever of the [surgical injury] at the time it occurred” and that the “problem with defining the injury-producing event as defendants’ failure to diagnose and treat [the surgical injury] is that plaintiffs could not meaningfully have perceived any such failure. Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders.” In this case, the court said, “[e]ven if plaintiffs believed . . . that 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.”

Bystander emotional distress liability in medical malpractice cases will be unusual following the court's opinion. Such liability should only occur when medical malpractice is directly observed by the bystander plaintiff or, in the case of alleged failure to diagnose and treat, when the malpractice is so obvious it can be established without the need for expert testimony.