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Emotional Distress Damages for Witnessing Inadequate Treatment After Surgery


A woman underwent thyroid surgery. Her daughter and sister accompanied her to the hospital. After the surgery, the woman was transferred from a post-anesthesia care unit to a medical-surgical unit. The daughter and sister saw the woman immediately after surgery while she was on a gurney waiting to be brought to her room. The daughter said that her mother did not look herself and her skin appeared gray. The woman appeared to be very uncomfortable and in distress, and she was sweating. The sister said the woman looked uncomfortable and was panting, but she was alert and sitting up. She was perspiring and clammy. She could not speak and was making a gurgling sound when she breathed. At that time, a nurse noticed her breathing was “noisy,” and thought it was stridor, a sound that comes from the upper airway suggesting the airway is obstructed.

 

The nurse called the hospital's rapid assessment team to evaluate her. The rapid assessment team is composed of a respiratory therapist and a nurse from the intensive care unit (ICU). The respiratory therapist suctioned the woman's mouth, removing some secretions. The woman had nodded when asked if the suctioning made her feel better, but she still appeared to be uncomfortable. The problem recurred and at the sister's request, the respiratory therapist suctioned the woman again. The daughter asked the nurse to call the surgeon who operated on the woman because her condition was not improving.

 

The surgeon who operated on the woman was called and advised about her breathing. He arrived and tried to reposition her and suctioned her mouth and nose. The daughter watched him begin to examine the site of the surgery and then saw her mother's eyes roll back and her arm go up. As he removed the bandages and began removing the sutures on her incision to relieve pressure, the woman stopped breathing. The surgeon called a code blue. The woman was without a pulse for a number of minutes and as a result of her blocked airway, she suffered a permanent brain injury. The woman was transferred to the ICU. She died after life support was withdrawn.

 

The sister and daughters sued the hospital. The complaint alleged causes of action for wrongful death and negligent infliction of emotional distress (NIED). After trial, the jury awarded the daughters $1 million on their wrongful death claims and awarded the daughter $175,000 and the sister $200,000 on their NIED claims. The Alameda County Superior Court entered judgment on special jury verdict for the sister and daughters. The hospital appealed the NIED verdict arguing they were unsupported by substantial evidence.

 

The California First District Court of Appeal, Division 3, affirmed. The court held that evidence supported finding that the sister and daughter were contemporaneously aware that the woman's inadequate treatment was causing her difficulty breathing, evidence supported finding that the sister suffered serious emotional distress as a result of witnessing the inadequate treatment, and evidence supported finding that the daughter suffered serious emotional distress as a result of witnessing the inadequate treatment.

 

Evidence supported finding that the sister and daughter were contemporaneously aware that the woman’s inadequate treatment was causing her difficulty breathing. The court held that to recover on a claim for negligent infliction of emotional distress to a bystander: (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 must have suffered serious emotional distress. The court found that there was no dispute that the daughter and sister were closely related to the woman and that they were with the woman from the time she began exhibiting difficulty breathing until her doctor called the code blue. The hospital argued that there was no substantial evidence that the daughter and sister were aware at that time that the hospital's negligence was causing injury to the woman. The court held that an NIED claim may arise when a patient's relatives witness caregivers failing to respond significantly to symptoms obviously requiring immediate medical attention. The court found that the evidence showed that the daughter and sister were present when the woman had difficulty breathing following thyroid surgery. They observed inadequate efforts to assist her breathing, and called for help from the respiratory therapist, directing him at one point to suction her throat. They also directed hospital staff to call for the surgeon to return to the woman's bedside to treat her breathing problems. The court held that these facts could be properly considered by the jury to demonstrate that the daughter and sister were contemporaneously aware of the woman's injury and the inadequate treatment provided her by the hospital. The court explained that the negligence was the failure of the hospital staff to intubate the woman or otherwise treat her compromised airway and the injury producing event was the hospital staff’s lack of acuity and response to the woman's inability to breathe, a condition the daughter and sister observed and were aware was causing her injury.

 

Evidence supported finding that the sister suffered serious emotional distress as a result of witnessing the inadequate treatment of the woman’s struggle to breathe that led to her death. The court held that serious emotional distress exists, as required for NIED, if an ordinary, reasonable person would be unable to cope with it. Emotional distress includes suffering, anguish, fright, nervousness, grief, anxiety, worry, and shock. The court held that the jury's finding that the woman’s sister suffered serious emotional distress as a result of witnessing hospital staff's inadequate treatment of the woman's difficulty breathing was supported by substantial evidence. The sister testified that she was scared and upset when she saw the surgeon call a “code blue” in the recovery room. The sister prayed for the woman's recovery. The sister would not agree to the characterization that she was able to cope with the mental and emotional stress of the events in the recovery room. The sister “went to pieces” several days later when she learned the woman had died after life support was withdrawn.

 

Evidence supported finding that the daughter suffered serious emotional distress as a result of witnessing the inadequate treatment of the woman’s struggle to breathe that led to her death. The court held that the jury's finding that the woman’s sister suffered serious emotional distress as a result of witnessing hospital staff's inadequate treatment of the woman's difficulty breathing was supported by substantial evidence. The daughter testified that she felt very helpless while watching her mother's condition and that she felt “devastated.” When she saw the surgeon call a “code blue” she felt “very emotional and shocked” and she cried.

 

The California First District Court of Appeal, Division 3, affirmed the trial court’s entry of judgment on a special jury verdict for one sister and daughter.

 

See: Phyllis Keys v. Alta Bates Summit Medical Center, 2015 WL 1346310 (Cal.App. 1 Dist., February 23, 2015) (not designated for publication).

 

 

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