The defense cannot bring up the quality of the care given to the minor by the parents in order to reduce the damages. The parents are entitled to reimbursement for the reasonable value of attendant care provided directly from the brain damaged child under the minor Plaintiff's cause of action for economic damages. In an action to recover for personal injuries to a child, special damages include the reasonable value of home attendant care provided by the child's parents.

In the case of Hanif v. Housing Authority (1988) 200 Cal. App.3d 635, the Court of Appeal held that, "It is established that the reasonable value of nursing services required by the defendant's tortious conduct may be recovered from the defendant even though the services were rendered by members of the injured person's family and without an agreement or expectation of payment. Where services in the way of attendance and nursing were rendered by a member of the Plaintiff's family, the amount for which the defendant is liable is the amount for which reasonably competent nursing and attendance by others could have been obtained." (Id. at 644.)

In the case of Rodriguez v. McDonald Douglas Corporation (1978) 87 Cal. App.3d 626, the Plaintiff was entitled to recover the reasonable value of 24-hour home attendant care provided by his spouse and necessitated by the defendant's tortious conduct. The Court held that,
"We reject the premise that the cost of attendant care, past or future, should not have been an item for consideration by the jury because of the presence of (the Plaintiff's wife). It is not part of her duties as a wife to render 24-hour-a-day attendant care." (Id. at p. 661.)

Thus, in this case, any attendant care provided by the parents in the past or which could be provided in the future must be compensated for at the reasonable rate which would be charged by a competent nursing attendant. Based upon evidence and testimony of various witnesses, the jury can properly determine the cost of such attendant care, regardless of who would provide it.

Further, it is irrelevant whether the parents provide the extraordinary care necessary for this child or hire an outside attendant to do so. The fact that the parents may voluntarily choose to devote some or all of their lives to providing the extraordinary level of attendant care services required by the minor Plaintiff in this case does not, and should not, insulate the defendant from being liable for the reasonable value of nursing attendant care services required by this child solely as the result of the defendant's negligence.

It would be confusing for the defense to suggest to the jury that the parents/relatives may, at no cost, provide those services and misleading to the jury in view of the current state of the law regarding Plaintiff's damages as referred to earlier under the case of Hanif v. Housing Authority, supra, 200 Cal. App.3d at 644 (see discussion below).

Additionally, requiring the jury to deliberate in order to calculate the number of hours of future care that would be provided by the relatives versus an outside hired nurse [where both are entitled to the same compensation] would necessitate an undue and totally unnecessary consumption of time.

Plaintiffs' Trial Brief on the Quality of Parents' Care (Hanif)

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION
This is a medical negligence action wherein the minor Plaintiff, DANIEL YAMAMOTO, a Roseville resident, suffered severe birth injuries. Each Defendant and their witnesses have no basis for making any reference to (1) the issue of the parents' quality of care or (2) to a claim that the minor Plaintiff's damages may be limited by the fact that the parents or relatives of the minor Plaintiff have in the past provided, and may in the future continue to provide, some attendant care for the minor Plaintiff.

1. The quality of the parents' care is irrelevant. The defense has no admissible testimony that the quality of care given to the minor child has in any manner contributed to the brain damaged condition from which the child suffers. Such testimony is excludable as irrelevant (Evid. Code § 210) and unduly time consuming and prejudicial (Evid. Code § 352).

2. The cost of the minor's care is not reduced because the parents may provide some care. Further, the defense cannot bring up the issue of the quality of the care given to the minor by the parents in order to reduce the damages. Where it is undisputed that the minor Plaintiff will require attendant care for the rest of his life, the jury's function is to determine the reasonable level and cost of such care to be included as plaintiff's damages. The jury function is not to determine who will provide the care (Hanifv. Housing Authority (1988) 200 Cal. App.3d 635, 644). Based upon this clear authority, Plaintiffs attach a proposed jury instruction regarding the holding in Hanif.

IV THE MOTHER DOES NOT HAVE TO SHOW CONTEMPORANEOUS OBSERVATION OF HER CHILD'S BIRTH INJURY TO CLAIM EMOTIONAL DISTRESS AS A DIRECT VICTIM

The plaintiff mother does not have to show contemporaneous observation of a bystander under Thing v. La Chusa (1989) 48 Cal.3d 644, to claim emotional distress from injury to her child because the mother is a direct victim.

A. Because Gupta Owed a Preexisting Duty of Care to Burgess, the Criteria for Recovery of Negligent Emotional Distress Enunciated in Thing Are Not Controlling in This Case.

In contrast [to bystander], the label direct victim arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law or that arises out of a relationship between the two. [Citation omitted.] In these cases, the limits set forth in Thing, supra, ... have no direct application. [Citations omitted.] Rather, the well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case. (Emphasis and brackets added.) (Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1064, 1072-1073.)

Consequently, the elements of emotional distress for the plaintiff mother are the elements of negligence: We have repeatedly recognized the [t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. ... The traditional elements of duty, breach of duty, causation, and damages apply. (Id. at p. 1072.)

The Third District cited the Second District case of Zambrano v. Dorough (1986) 179 Cal.App.3d 169, a medical negligence case wherein the plaintiff asserted the defendant physician's negligent misdiagnosis caused her hysterectomy; she also asserted emotional distress.

The Third District drew a distinction between the medical negligence action and found the emotional distress based upon a different allegation that the physician refused to treat her:
We are likewise convinced that Zambrano should be permitted to proceed against Dorough for the loss of her reproductive capacity. That injury is of a different type than the emotional distress she allegedly suffered from Dorough's refusal to treat her and the pain and suffering and out of pocket losses allegedly accompanying the negligent misdiagnosis. The cause of action is based upon the injury to the plaintiff ... [ ] If the complaint alleges violation of a different primary right, it states a different cause of action. (4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 25, p. 69.) (Emphasis added.) (Zambrano v. Dorough, supra, 179 Cal.App.3d at p. 174.)

To emphasize the point that the medical negligence action was separate from the emotional distress action, the Second District continued: Zambrano's right to be free of the transitory damages of discomfort and distress is separate from and independent of her right to have children, a much more serious complication not apparent at the time of the earlier 5 problems. (Id.)

III THE DEFENDANTS VIOLATED TWO PRIMARY RIGHTS: (1) ONE INVOLVING INJURY TO THE CHILD AND (2) ONE INVOLVING INJURY TO THE MOTHER; THE MOTHER MAY ASSERT SEPARATE CAUSES OF ACTION FOR EACH VIOLATION OF A PRIMARY RIGHT

The Third District has explained that in tort law, damages flow from violations of primary rights *Skrbina v. Fleming Companies, Inc. (Cal.App. 3 Dist. 1996) 45 Cal.App.4th 1353, 1364.) As noted in the above discussion on Burgess, [a]ny negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother. (Emphasis added.) (Burgess, supra, 2 Cal.4th at p. 1076.) And as noted above, the mother also suffered damages from her ruptured uterus. Consequently, the Defendants violated two primary rights ; each violation gives rise to a separate cause of action; the mother has a right now to collect separate damages for each violation.

The Third District explained the distinction between causes of action:
California defines a cause of action in accord with Pomeroy's primary right theory. [Citation.] A cause of action consists of (1) a primary right possessed by the plaintiff and a corresponding primary duty imposed upon the defendant, and (2) a delict or wrong committed by the defendant which constitutes a breach of such primary right and duty. [Citation.]' (Miranda v. Shell Oil Co. (1993) 17 Cal.App.4th 1651, 1658, 26 Cal.Rptr.2d 655; 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 23, pp. 66-67.)

The cause of action is based on the injury to the plaintiff, not on the legal theory or theories advanced to characterize it. (Emphasis added.) (Skrbina v. Fleming Companies, Inc., supra, 45 Cal.App.4th at p. 1364.) Here the mother suffered two injuries: (1) emotional distress because of injury to her child pursuant to Burgess and (2) physical injury because of her own injuries (Civil Code, § 1714).

Thus, ... the failure by Burgess to satisfy the criteria for recovery under Thing, ... does not end the inquiry. The alleged negligent actions resulting in physical harm to Joseph [the minor] breached a duty owed to both Joseph and Burgess. Burgess was unavoidably and unquestionably harmed by this negligent conduct. (Emphasis and brackets added.) (Burgess, supra, 2 Cal.4th at p. 1076-1077.)

The above analysis was recently affirmed in Zavala v. Arce (1997) 58 Cal.App.4th 915, decided October 27, 1997. In Zavala, the fetus was stillborn; yet, the mother could still allege her own action for direct victim emotional distress. Zavala cited Burgess were the baby was born alive - as in the present case - and died after birth; in both circumstances, the mother can allege emotional distress: Our Supreme Court has held in a factually similar case that when an obstetrician and a pregnant woman enter into a physician-patient relationship ... the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. (Zavala, supra, 58 Cal.App. 4th at p. 928.)

Whether the baby survives birth or dies after is immaterial to the emotional distress claim of the mother:
The fact that the baby in Burgess survived the injuries caused by the obstetric negligence during delivery was immaterial to the determination of whether the obstetrician owed a duty of care to the mother. The Supreme Court in Burgess reasoned that ... the obstetrician and the pregnant woman [who] enter into a physician-patient relationship ... understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus, and [a]ny emotional anguish to the mother, therefore breaches a duty owed directly to the mother. (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1076.) (Emotional distress.) (Zavala, supra, 58 Cal.App. 4th at p. 930.)

B. BURGESS: THE SUPREME COURT IN BURGESS RECOGNIZED THE OBSTETRICIAN OWES A SEPARATE DUTY TO A MOTHER NOT TO INJURE HER CHILD - DISTINCT FROM THE OBSTETRICIAN'S DUTY NOT TO INJURE THE MOTHER

The medical care providers can breach two duties when they commit negligence resulting in the delivery of an injured child. The first breach of duty can be to the mother if she has suffered damages such as the mother here. Liability for breach of such a duty is set forth in statute: Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want or ordinary care or skill in the management of his property or person, .... (Civil Code, § 1714.) The second breach of duty is the breach of duty resulting in the mother's emotional distress arising from the abnormal event of participating in a negligent delivery and reacting to the tragic outcome .... (Burgess, supra, 2 Cal.4th at p. 1085.)
Consequently, the mother here was correct to allege two separate and distinct causes of action, one for herself, another for her participation in the abnormal delivery and injury to the child which was delivered. Since the mother here has suffered the breach of two separate duties, she is allowed to allege two separate causes of action.

The Supreme Court expressly held that the health care provider owes a duty to the mother regarding the medical treatment of the fetus. This is a separate and distinct duty apart from the breach of the duty to the mother resulting in the mother's injury:

(Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916). Consequently, direct victim emotional distress does not rely upon physical injury or impact.

And the lack of a requirement for physical injury is a key central aspect of the direct victim analysis. In Molien, the Supreme Court answered in the affirmative the question of whether, in the context of a negligence action, damages may be recovered for serious emotional distress unaccompanied by physical injury. (Burgess, supra, 2 Cal.4th at p. 1073.) To emphasize the point that physical injury is not part of the direct victim analysis, the Supreme Court in Burgess made the point again: physical injury is not a prerequisite for recovering damages for serious emotional distress, especially when as here, there exists a guarantee of genuiness in the circumstances of the case. (Burgess, supra, 2 Cal.4th at p. 1079.) The Supreme Court put its point in a headline: Lack of Physical Injury Does Not Defeat Burgess's Claim. (Id. at p. 1078.) Physical injury is not connected with the direct victim analysis.

The point here is that the defense argument that the direct victim emotional distress action is subsumed into the mother's personal injury action is entirely illogical. If the direct victim analysis specifically excludes physical injury, how can the direct victim emotional distress be subsumed into a physical injury action? The physical injury and the emotional distress here are separate and distinct. And the Supreme Court in Burgess makes this distinction.
The Defendants rely upon one comment in Burgess taken out of context: We have repeatedly recognized the [t]he negligent causing of emotional distress is not an independent ort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply. (Id. at p. 1072.) This statement means is that in order to plead direct victim emotional distress, the elements of negligence must be alleged. But Burgess never held that direct victim emotional distress is subsumed into a separate personal injury action. The further language in Burgess clarifies that the direct victim emotional distress it is addressing involves not the mother's emotional distress from injury to herself but rather the mother's emotional distress because of injury to the child:

II BURGESS: A MOTHER'S EMOTIONAL DISTRESS ACTION FOR INJURY TO HER CHILD IS NOT SUBSUMED INTO HER NEGLIGENCE CAUSE OF ACTION

The seminal case allowing a mother to assert direct victim emotional distress for injury to her child during birth is Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1072. Under Burgess, there are two reasons why the mother's direct victim emotional distress is not subsumed by her separate negligence personal injury cause of action: (1) Burgess's own language found the mother could allege emotional distress irrespective of whether she alleged personal injury; and, (2) Burgess recognized the obstetrician had a duty directly to the mother not to injure her child, which is distinct from a duty not to injure the mother directly.

A. BURGESS: THE SUPREME COURT IN BURGESS RECOGNIZED DIRECT VICTIM EMOTIONAL DISTRESS FOR THE MOTHER INDEPENDENT OF ANY PERSONAL INJURY ACTION

The Supreme Court in Burgess held the mother in a case of obstetrical negligence can recover for emotional distress for injury to her child - as opposed a separate injury to the mother. A reading of Burgess shows the mother's emotional distress for the child's injury is not subsumed by a mother's separate personal injury action. Indeed, the Supreme Court specifically held that physical injury is not part of the direct victim analysis.

Burgess is similar to the present case. In Burgess, the defendant obstetrician delivered an injured child who subsequently died: Joseph died during the course of the litigation, allegedly as the result of his injuries. A wrongful death action was subsequently filed by Burgess [the mother] and was consolidated with the original malpractice action. (Burgess, supra, 2 Cal.4th at p. 1070-1071.) Consequently, Burgess included both a malpractice claim and a wrongful death claim.

Plaintiffs' Trial Brief: The Mother's Emotional Distress Action is not Subsumed by Other Actions Nor Does the Mother Have to Show Contemporaneous Observation of the Birth Injury Itself

MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION

This is a medical negligence action wherein the minor Plaintiff, KYLIE JAMES, suffered severe birth injuries. The Complaint alleges that the minor suffered damages because of medical negligence. The Complaint also alleges a separate cause of action by the mother, OLIVIA JAMES, for negligence in her treatment. In addition, OLIVIA alleges a cause of action for negligent infliction of emotional distress (NIED) pursuant to Burgess v. Superior Court (Gupta) (1992) 2 Cal. 4th 1064.

1. The mother's action for NIED is not subsumed by other actions. The defense may assert that the mother's direct victim emotional distress cause of action under Burgess is subsumed or erased by her separate action for personal injuries. The defense may assert that an obstetrical patient cannot claim a cause of action for negligence separate and distinct from her emotional distress cause of action under the Supreme Court case of Burgess. If a mother's direct victim emotional distress action is subsumed by her personal injury action, then the mother's direct victim emotional distress is effectively eliminated for a mother who is involved with obstetrical negligence, has an injured child, and in the process is injured herself. Contrary to what the defense may claim, a mother has a separate action for emotional distress arising from the abnormal event of participating in a negligent delivery and reacting to the tragic outcome .... (Burgess, supra, 2 Cal.4th at p. 1085.)

2. The mother does not have to show contemporaneouss observation under Thing. Contrary to what the defense may claim at trial, under Burgess, the mother is not required to prove that she was contemporaneously aware of a negligent act and harm to her child.

PLAINTIFFS’ OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

MEMORANDUM OF POINTS AND AUTHORITIES

I INTRODUCTION

This is a medical malpractice action arising out of a birth injury suffered by the minor, DONALD WHITE. The Complaint alleges that the minor suffered severe and profound damages because of medical negligence at or about the time of birth. For this pregnancy, AMBER WHITE at about 33wks gestation, felt decreased fetal movement; an ultrasound was done found she had excess fluid around the baby and they began doing tests. She was referred to a perinatologist at ABC Medical Center for high-contrast ultrasound. He diagnosed the baby with micrognathia of the lower jaw. He said it was a singular symptom, and that it was not a genetic factor. He recommended the parents deliver at GENERAL HOSPITAL because they would have a higher level of care.

The doctors at GENERAL HOSPITAL assured the parents that the baby would be fine; that the most important part of the delivery was making sure she could breathe once the umbilical cord was cut and then she would have plastic surgery to correct the chin. AMBER WHITE began having pre-term labor which was controlled by medication; her physicians wanted her to get as far as possible. At 37 weeks she began having contractions again; she and her husband, DAVID WHITE went to do pre-admission at GENERAL HOSPITAL on August 2, 2003; they met with the ICU team at that time who assured them that everything would be in place when she went into labor and that an ear, nose, and throat (ENT) surgeon would be there to do a trachea at birth.

On August 6, 2003, AMBER WHITE went to labor and delivery at 3:00 p.m. with contractions, 100% effaced, and 5cm dilated. The monitors were put on and they planned a vaginal delivery. Sometime that afternoon she was told that they would do a c-section because the baby was turned sideways. The c-section was not an emergency; when she was taken to OR, the mother kept asking if the necessary doctors were present, and the parents were assured that everyone was present and were ready for the baby. The baby was born by c-section at 8:15 p.m.; the doctor who was supposed to do the trachea was not present. The baby was bagged but couldn't be intubated because his throat was not large enough.

The Complaint alleges a number of causes of action beside negligence regarding the child including a separate cause of action for the father, DAVID WHITE, for bystander emotional distress pursuant to Thing v. LaChusa (1989) 48 Cal.3d 644.

The hospital, GENERAL HOSPITAL and various physicians have now filed a motion for summary adjudication on the father's bystander emotional distress action.

Contrary to the motion, the father does not have to be aware of medical negligence to allege bystander emotional distress - he directly viewed the injury. The father saw the injured minor while the minor was suffering from a continuing injury a continuing lack of oxygen. The motion for summary adjudication is absolutely wrong; the father need not be aware of medical negligence - or internal physiological processes - to witness the incident. What the Supreme Court required was that the father be present at the scene of the injury-producing. event at the time it occurs and is then aware that it is causing injury to the victim ... (Emphasis added.) (Thing, 48 Cal.3d at p. 667-668.) The father does not have to be a medical expert and determine that there was medical negligence. The Supreme Court was clear: [W]e by no means suggest... that plaintiff must be aware of the tortuous nature of defendant's actions ... [Such requirement would lead to the anomalous result that a mother who viewer her child being struck by a car could not recover because she did not realize that the driver was intoxicated. (Emphasis added.) (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 170.)

All that is necessary is that the father be present for the injury-producing event and then know there is an injury: [W]e conclude it is not necessary that a plaintiff bystander actually have witnessed the infliction of injury to her child, provided that the plaintiff was at the scene of the accident and was sensorially aware, in some important way, of the accident and the necessarily inflicted injury to her child. (Emphasis added.) (Wilks v. Hor (1992) 2 Cal.App.4th 264, 1271.) Here, the father was aware - in some important way - of the injury to the minor.

And again, at the time of delivery, the defendants assured MRS. WHITE that an ENT indeed was present:

A. IT WAS SOMEBODY IN THE ROOM THAT ASKED DR. X., THAT SAID, MRS. WHITE WOULD LIKE TO KNOW IF THE ENT AND ALL NEEDED PERSONNEL ARE IN THE ROOM. AND DR. X. HAD ACTUALLY LOOKED IN THERE AND SAID, YES, MRS WHITE, DON'T WORRY ABOUT A THING EVERYBODY IS HERE. (Deposition of David White, at pp. 12:19-24.)

And DAVID WHITE knew his son was injured - by directly viewing the child's injured body because an ENT was not present:

Q. AND WHAT DID YOU SEE WHEN THEY SHOWED YOU DONALD [in the delivery room]?

A. BLUE, LIFELESS.

Q. WAS THAT --

A. HE WASN'T BREATHING.

Q. OKAY

A. JUST LIFELESS.

Q. AND WAS THAT DIFFERENT FROM WHAT YOU HAD EXPECTED TO SEE?

A. YES.

Q. HARD TO REMEMBER WHAT YOU SAW, BUT SHE SEEMED TO BE LIFELESS AND BLUE?

A. I SAW HIS FACE. HIS FACE WAS BLUE. EVERYTHING WAS BLUE. (Brackets added.) (Deposition of David White, at pp. 52:14-55:11.)

Thereafter, the defendants told DAVID WHITE about the health care providers failure to get an airway into the baby - with an ENT not present:

Q. DURING YOUR FIRST CONVERSATION WITH DR. SEAN Z., THAT'S IN THE HALLWAY WHEN HE TAKES YOU OUT OF THE OPERATING ROOM TO SPEAK WITH YOU. WAS IT YOUR UNDERSTANDING AT THE TIME DR. Z. WAS SPEAKING WITH YOU, THAT THE PEOPLE WHO WERE TAKING CARE OF DONALD STILL HAD NOT BEEN ABLE TO GET AN AIRWAY IN THERE EFFECTIVE TO GIVE HIM PROPER OXYGENATION?

A. YES.

Q. WAS IT YOUR UNDERSTANDING, WHEN YOU WERE TALKING WITH DR. Z. IN THE HALLWAY, THAT THAT PROBLEM OF GOT [SIC] BEING ABLE TO GET DONALD OXYGENATION WAS STILL AN ONGOING PROBLEM?

A. YES.

Q. AND DID YOU HAVE AN UNDERSTANDING THAT WHILE YOU WERE TALKING WITH DR. Z. ABOUT THE FACT THAT THE MEDICAL PROVIDERS STILL COULD NOT PROVIDE PROPER OXYGENATION TO DONALD, AND THAT WAS CAUSING HER A CONTINUING INJURY?

A. YES. (Deposition of David White, at pp. 77:12 - 78:20.)

Q. WAS IT YOUR UNDERSTANDING, WHILE YOU WERE TALKING WITH DR. Z. IN THE HALLWAY, THAT THE CONDUCT OF THE DOCTORS OR THE LACK OF CONDUCT OF THE DOCTORS WHO WERE CARING FOR DONALD IN THAT NICU TRANSITIONAL WAS CONTINUING TO CAUSE INJURY TO DONALD?

A. YES. (Deposition of David White, at p. 79:12-17.)

In other words, the health care providers promised an ENT would be present; and when the ENT failed to show, the father knew the child was not being properly treated. And, the child's injuries were so apparent that DAVID WHITE thought his son was dead - then the injury cause by failure to obtain an airway caused damage of which the father was aware.

III THE EVIDENCE SHOWS THE ELEMENTS OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS PURSUANT TO THING

The father was present at and viewed the continuing injury - the lack of oxygen - to the child. The fourth cause of action of the Complaint for the father properly alleges all the elements of negligent infliction of emotional distress pursuant to Thing v. LaChusa (1989) 48 Cal.3d 644. Thing set forth the three requirements for the bystander cause of action for negligent infliction of emotional distress: