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BYSTANDER EMOTIONAL DISTRESS IN MEDICAL MALPRACTICE CASES

Patient’s Close Relatives Can Recover for Witnessing Medical Negligence

Sometimes, doctors (and other medical professionals) make noticeable mistakes when caring for patients, mistakes that the common person, lacking any medical training, is capable of recognizing. For those situations, some family members and other close relations make seek recovery for the mental and emotional trauma caused by witnessing such events. It is important to be able to establish that you were present at the scene, aware of the injury-producing event and its cause, a close relative of the patient, and that you suffer(ed) emotional distress beyond that which a disinterested observer would be expected to experience.

Many times, it can be difficult to show that the close relative of the patient was aware of the cause of the injury, or rather, aware that medical negligence was actually taking place, because the close relative often lacks the training, skill, education, and knowledge of a medical professional, or expert. But the courts in California have held that it is possible.

“Although a plaintiff need not contemporaneously understand that a defendant’s conduct constitutes legal negligence, the plaintiff must have a contemporaneous understanding that the conduct that is being observed is conduct that is actually causing harm.” Bird v. Saenz (2002) 28 Cal. 4th 910, 920 (emphasis added). The Bird case allows for the contemporaneous awareness of medical negligence by a layperson: under some extreme situations, even a lay person may contemporaneously perceive that incorrect medical treatment is causing an injury, such as if a patient’s family member observes a surgeon amputate the wrong limb of the patient. Bird v. Saenz (2002) 28 Cal. 4th 910, 918, 920-921.

Another such example now includes what befell the family of Madeline Knox, where her daughter and sister witnessed her stop breathing while receiving inadequate care from the medical facility where she was a patient. The First District Court of Appeal found that Ms. Knox’s family members “observed Knox’s acute respiratory distress and were aware that defendants’ inadequate response caused her death,” satisfying the standard established by Thing v. La Chusa (1989) 48 Cal.3d 644 and other cases.

Here at Heiting & Irwin, we understand that harm to patients has a way of effecting entire families, and we thoroughly explore the best possible remedies and recoveries for families injured by the negligence of medical and other professionals. If you or a close relative has experienced a medical injury and would like to speak with someone about your options, please feel free to give us a call and speak with one of our attorneys today.

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