Judge: Christian R. Gullon, Case: 24PSCV00219, Date: 2024-03-28 Tentative Ruling

Case Number: 24PSCV00219    Hearing Date: March 28, 2024    Dept: O

Tentative Ruling

DEFENDANT, EMANATE HEALTH MEDICAL CENTER DBA QUEEN OF THE VALLEY HOSPITAL’S DEMURRER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES is SUSTAINED with leave to amend to allege the injury-producing event.

Meet and Confer: Plaintiffs’ Counsel is to meet and confer at length with Defense Counsel by squarely addressing the cases raised by Defendant in the instant demurrer. Should a subsequent demurrer be filed, the court requests Defendant to attach copies of the meet and confer emails between the parties.

Background

This is a negligence case. Plaintiff Angela Tapias (“Plaintiff”), by and through her Guardian ad Litem Hortencia Tapias, and Hortencia Tapias (“Plaintiff’s Mother”) (collectively, “Plaintiffs”) allege the following against Defendants CARE AMBULANCE SERVICE, INC (the “Ambulance”).; FALCK USA;[1] LOS ANGELES COUNTY FIRE DEPARTMENT (the “Fire Department”); COUNTY OF LOS ANGELES (the “County”); EMANATE HEALTH QUEEN OF THE VALLEY HOSPITAL (“Emanate” or “Hospital”) (collectively, “Defendants”): On January 23, 2023, Plaintiff, then a 5-year-old, started to have symptoms consistent with an upper respiratory infection. On January 28, 2023, she was diagnosed with pneumonia, but later that day, Plaintiff’s mother called 911 as Plaintiff started to have fevers and chills. Neither the Fire Department nor the Ambulance took Plaintiff’s body temperature or implemented treatment modalities to lower Plaintiff’s body temperature, which, upon arrival at the Hospital, was 108 degrees Fahrenheit. “It was felt that she likely had an aspiration event during seizure which led to the cardiac arrest” (Complaint ¶18) and she had a second longer seizure. She was transferred to Miller Children’s Hospital PICU for further care where she tested positive for human metapneumovirus, and entero/rhinovirus and her scans showed anoxic brain injury. (¶¶19-20.)[2] She the time of her discharge,[3] she was doing better, but due to the global anoxic brain injury, she currently has the intellectual capacity of a 2-year-old and will require indefinite around-the-clock care. As for Plaintiff’s mother, she suffered by way of experiencing and witnessing the foregoing.  

On January 22, 2024, Plaintiffs filed suit against Defendants for:

On March 15, 2024, Plaintiffs filed their opposition to the demurrer.

On March 20, 2024, Emanate filed its reply to Plaintiffs’ opposition to the demurrer.

Discussion

Emanate (hereinafter, “Defendant”) demurs to the 3^rd COA for negligence on the grounds that the COA fails to state sufficient facts to constitute the COA (CCP Section 431.10(e)) and that the COA is uncertain (CCP section 431.10(f).)

The 3^rd COA is asserted by Plaintiff’s Mother and asserts the following:

Plaintiff Ms. Tapias repeats and realleges each and every allegation set forth in Paragraphs 1 through 29, inclusive as though fully set forth herein. As a result of the incident described above, and Defendants’ negligent conduct, Ms. Tapias suffered severe emotional distress. Defendants’ negligence was a substantial factor in causing Ms. Tapias’ severe emotional distress. (Complaint ¶49-51.)

Effectively, the COA is one for the negligent infliction of emotion distress (NIED) under a bystander theory. (See also Opp. p. 3:4-5 [Plaintiffs do not contest that direct theory does not apply].)

California courts have repeatedly recognized that NIED is not an independent tort, but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply. (See, e.g., Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 213; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.) A plaintiff may make a bystander NIED claim if he or she:

1.     Is present at the scene of the injury-producing event at the time it occurs,

2.     Witnesses the physical injury of someone closely related to him or her, and

3.     Suffers emotional distress beyond that which would be anticipated in a disinterested witness. (Thing v. La Chusa (1989) 48 Cal.3d 644, 666.)

At issue in this demurrer is the second element. (See Demurrer p. 7:12-13 [“Tapias did not contemporaneously perceive the injury-producing event and its traumatic consequences until well after Angela was transferred from EH.”].)

As clarified by the Supreme Court of California in the seminal case of Bird v. Saenz (2002) 28 Cal.4th 910, 916, “[a] plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative.” (emphasis added and underline added.) As for understanding the injury-producing event, in most cases, a plaintiff cannot meaningfully perceive the injury-producing event (i.e., such as failing to make a diagnosis or treat an injury) because “misdiagnosis is beyond the awareness of lay bystanders.” (Id. at p. 917, emphasis added.) Put differently, even if plaintiffs believe, based upon their senses (e.g., sound or visual) that their relative is in pain or in distress, absent medical expertise or but for the most obvious cases (e.g., “layperson who watched as a relative's sound limb was amputated by mistake” (id. at p. 918), there is “no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate.” (Id. at p. 917.)

The only allegations related to what happened at Emanate are the following:

Upon arrival to the hospital, while still in triage Baby Tapias[4] was noted to become less responsive and then had an episode of stiffening, eyes rolling back then became limp.  She had a fever of 105F at that time but reportedly her temperature went up as high as 108F.  She was noted to be pulseless after her seizure and CPR was initiated and she was promptly intubated.  It was felt that she likely had an aspiration event during seizure which led to the cardiac arrest.  19. After Baby Tapias had a ROSC, according to Ms. Tapias, Baby Tapias had a second longer seizure. An LP was performed and was negative with only 1 WBC noted.  A Respiratory Virus Panel (RVP) was reportedly positive for adenovirus, human metapneumovirus, and human coronavirus.  Ultimately, after stabilizing Baby Tapias, she was transferred to Miller Children's Hospital PICU for further care. (Complaint ¶¶18, 19.)

The court cannot reach the merits of the demurrer because Plaintiffs improperly incorporate allegations by reference leaving the court (and defendants) to determine what facts pertain to what COAs. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. (Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101.)[5]

Here, however, the COA contains no relevant facts as to the disputed element of whether Plaintiffs’ Mother was present during the injury-producing event and was aware of what was causing harm to Plaintiff. While the court presumes that the alleged negligent injury-producing event is Emanate’s alleged failure to implement measures to control Plaintiff’s body temperature, it is not stated in the complaint. (Demurrer p. 6:8-9.)

Thus, as a court is bound by the pleadings on a demurrer and not statements made in papers, the demurrer is sustained with leave to amend so that Plaintiffs to plead sufficient and clear facts as to (1) the exact injury-producing event and (2) Plaintiff’s Mother’s sensory perception of the injury-producing event.

While Plaintiff’s Mother’s has alleged that she was distressed witnessing her daughter endure serious symptoms (going stiff and pulseless), a mother’s anguish is but one of three elements of the COA, and Plaintiff has failed to allege the second element of the COA.

Conclusion

Based on the foregoing, the demurrer is SUSTAINED with leave to amend. The parties are to meet and confer at length.