Case Number: BC574316??? Hearing Date: April 27, 2016??? Dept: 98

REBECCA SUNDILSON, et al.,
Plaintiffs,
vs.

CHLA-USC INSTITUTE FOR MATERNAL FETAL HEALTH, et al.,

Defendants.

CASE NO: BC574316

[TENTATIVE] ORDER RE: DEFENDANT RAMEN H. CHMAIT, M.D.?S DEMURRER TO COMPLAINT

Dept. 98
1:30 p.m.
April 27, 2016

On March 4, 2015, Plaintiffs Rebecca Sundilson (?Ms. Sundilson?) and Ethan Sundilson (?Mr. Sundilson?) (collectively, ?Plaintiffs?) filed this action. This action arises out of the miscarriage of Plaintiffs? twin fetuses. Plaintiffs each allege two causes of action for negligent infliction of emotional distress (?NIED?), one for each twin. Defendant Ramen H. Chmait, M.D. (?Defendant?) now demurs to Plaintiffs? NIED claims on the grounds that Ms. Sundilson?s claims are duplicative of her first cause of action for negligence and Mr. Sundilson?s claims fail to state facts sufficient to constitute a cause of action.

When any ground for objection appears on the face of a complaint, a defendant may object by a demurrer to the pleading. Cal. Code of Civ. Proc. ?? 430.30(a). Grounds for objection include failure to state facts sufficient to constitute a cause of action and uncertainty. Id., ?? 430.10(e)-(f). A court ?must accept properly pleaded facts as true, but a demurrer does not admit the plaintiff?s contentions nor conclusions of law or fact.? Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.

A plaintiff ?may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is 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; and (3) as a result suffers serious emotional distress ? a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.? Thing v. La Chusa (1989) 48 Cal.3d 644, 667-68.

In Bird v. Saenz (2002) 28 Cal.4th 910, the Court rejected plaintiffs? NIED claims based on medical malpractice in the treatment of their mother. The mother had an artery pierced during surgery, causing severe internal bleeding, and plaintiffs witnessed her being rushed into surgery. Plaintiffs were not present at the surgery when the artery was pierced. The Court concluded that the plaintiffs failed to show that they were contemporaneously aware of any error in the subsequent diagnosis and treatment of the pierced artery and, while plaintiffs eventually became aware that one injury-producing event had occurred, they had no basis for believing that another, subtler event was occurring in its wake. Id., at 917. In Morton v. Thousand Oaks Surgical Hosp. (2010) 187 Cal. App. 4th 926, the court sustained a demurrer against an NIED claim by appellants for injury to their mother during a surgery. The court concluded that appellants had failed to satisfy the second prong of the test laid out in Thing because they were not present during the surgery and their NIED claim rested only on their observance of their mother?s suffering and deteriorating condition. Id., at 928.

A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence, to which the traditional elements of duty, breach, causation, and damages apply. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 964.

Defendant asserts that neither Plaintiff has alleged sufficient facts to demonstrate contemporaneous awareness of any medical negligence and therefore cannot recover for under a bystander NIED theory. Plaintiffs? Complaint alleges that Defendants failed to properly treat Ms. Sundilson, including failing to admit her to the hospital and sending her and Mr. Sundilson home when she was in imminent danger of miscarrying her twin fetuses. Plaintiffs allege that Defendants knew or should have known that directing Plaintiffs to return home, rather than admitting Ms. Sundilson to the hospital, created the danger that Ms. Sundilson would spontaneously miscarry the twins, which occurred shortly after leaving Defendants? offices. Plaintiffs further allege that, as a result, they suffered serious emotional distress and Defendants knew that the spontaneous miscarriage would cause such distress upon Plaintiffs? awareness that their children were being injured.

The Court agrees that Plaintiffs? allegations fail to demonstrate contemporaneous awareness of any alleged negligence. Therefore, the Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to Ms. Sundilson?s NIED claims because she already has a claim against Defendants that includes a claim for emotional distress. The Demurrer is SUSTAINED WITH TWENTY DAYS? LEAVE TO AMEND as to Mr. Sundilson?s NIED claims.

Dated this 27th day of April, 2016

Hon. Holly J. Fujie
Judge of the Superior Court