Laypersons’ Observations of Hospital Staff’s “Lack of Urgency” in Treating Relative Sufficient to Sustain Claim for Negligent Infliction of Emotional Distress

In Keys v. Alta Bates Summit Medical Center (filed 2/23/2015, certified for publication 3/25/2015, No. A140038) the California Court of Appeal, First District, affirmed a jury verdict for Plaintiffs on a cause of action for Negligent Infliction of Emotional Distress (“NIED”) based on Plaintiffs’ observation of their family member in distress after undergoing surgery performed at defendant’s medical center.

Plaintiffs, Phyllis Keys and Erma Smith (“Plaintiffs”), were the daughter and sister, respectively, of decedent Madeline Knox. Knox was admitted to Alta Bates Summit Medical Center (“Alta Bates”) to undergo a surgery on her thyroid. Plaintiffs accompanied Knox to the medical center and waited while she underwent surgery. Immediately after surgery Plaintiffs saw Knox while she was being transferred on a gurney to her room. Plaintiffs observed that Knox “didn’t look herself,” had a gray hue to her skin, was sweating, and appeared to be very uncomfortable and in distress. Knox was making gurgling noises when she breathed and Plaintiff Keys asked a nurse to recall the doctor to examine Knox. Plaintiffs then observed the doctor suction Knox’s airway and examine the site of the surgery. Plaintiffs then observed Knox’s eyes roll into the back of her head, her arm rise up, and the doctor call a “code blue.” Plaintiffs left the room, but observed the nurses and staff continue to treat Knox. Plaintiffs testified there was not a sense of urgency by nurses or staff in trying to determine the cause of Knox’s distress and inability to breathe. Knox died shortly thereafter.

Among other causes of action, Plaintiffs filed suit for NIED. After trial, the jury returned a verdict in Plaintiffs’ favor. Alta Bates appealed, contending there was insufficient evidence to support a finding of NIED because Plaintiffs could not meaningfully comprehend the medical negligence that led to Knox’s death.

The Court of Appeal affirmed, reasoning that Plaintiffs had established all three factors described in the landmark decision Thing v. La Chusa (1989) 48 Cal.3d 644 (“Thing”), including: (1) the plaintiff must be closely related to the injury victim; (2) the plaintiff must have been present at the scene of the injury-producing event at the time it occurred and then aware that it was causing injury to the victim; and (3) as a result, the plaintiff suffered serious emotional distress.

Alta Bates challenged the second Thing factor, contending the evidence was insufficient to demonstrate Plaintiffs were “aware that [the medical negligence] was causing injury to” Knox. The Court dismissed this argument noting Plaintiffs observed inadequate efforts to assist Knox to breathe. Further, Plaintiffs directed hospital staff to call for the surgeon to return to Knox’s bedside to treat Knox after observing her struggle to breathe. Despite Plaintiffs not establishing their comprehension of the medical reason for Knox’s distress, the evidence offered was sufficient for the jury to conclude Plaintiffs understood Knox was suffering harm and that the nurses and staff were not acting with a sense of urgency to prevent or limit that suffering, thereby causing or contributing to Knox’s death.

This case builds on a line of published California NIED cases involving medical negligence. In 2002, the California Supreme Court noted in Bird v. Saenz (2002) 28 Cal.4th 910, 916, “courts have not found a layperson’s observation of medical procedures to satisfy the requirement of contemporary awareness of the injury producing event.” Keys signifies a liberalization of the level of comprehension a bystander plaintiff must demonstrate in order to recover for NIED under Thing and Bird. Further, it makes it increasingly difficult for defendant hospitals to counter an NIED claim on the ground the plaintiff, as a layperson, could not comprehend that the harm was a result of medical negligence.

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March 30, 2015