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Tuesday, Aug. 13, 2002

The ruling came at a time when a number of medical organizations have warned that doctors were being forced to give up their practices because of multimillion-dollar jury awards that were catapulting malpractice insurance premiums out of their reach.

Trying to Get Rich off Sick Mother

In a unanimous decision, the court found that two women who were at the hospital did not have a valid claim for "negligent infliction of emotional distress," or NIED, as a result of surgery performed on their mother in 1994 that nearly ended in tragedy because they were not in the operating room when surgeons nicked a major artery, causing the elderly woman to suffer serious bleeding that triggered a frantic effort to save her life.

"The plaintiffs have not shown they were aware of the transection of [the patient's] artery at the time it occurred," the court said. "Nor have they shown they were contemporaneously aware of any error in the subsequent diagnosis and treatment of that injury in the moments they saw their mother rolled through the hallway by medical personnel."

Janice Bird and her sisters, Dayle Edgmon and Kim Moran, had sued three doctors on the claim they witnessed the incident in which their mother, Nita Bird, wound up in a critical-care ward after what was supposed to be a 20-minute outpatient procedure at a Los Angeles-area hospital on Nov. 30, 1994.

The two daughters who were at the hospital that day, Bird and Edgmon, contended that they suffered emotional distress when, after an hour of waiting, they began hearing from hospital personnel that the procedure to implant a chemotherapy catheter had run into problems and that their mother might have suffered a stroke. Moran, the third daughter, was told of the situation by telephone.

Their growing alarm was fueled by calls over the hospital loudspeaker for a thoracic surgeon to respond immediately, the sight of a doctor hurrying by carrying an armload of blood units, and the sight of their mother, her blue coloring indicating a lack of oxygen, being wheeled down a hallway into emergency surgery.

Too Ignorant to Sue

The court disagreed however, and concluded that state law required a potential plaintiff to see the injury take place and to be aware that negligence was involved. In a statement that could have implications for future NIED suits, the court found that the adult daughters did not have the necessary medical knowledge to be aware that malpractice may have been involved in the code-blue crisis.

"The problem with defining the injury-producing event as defendants' failure to diagnose and treat the damaged artery is that plaintiffs could not meaningfully have perceived any such failure," the decision said. "Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders."

The lawsuit and its potential impact on malpractice awards drew the interest of American Medical Association, which said in a June 5 amicus curiae, or friend-of-the-court brief, that a broader interpretation of who is eligible for NIED damages could have major implications in the financial survival of health care providers and the future access that family members will have to hospitalized patients undergoing treatments.

"It may not be known when malpractice will occur, but it is known that, when it does occur, one or more members of a patient's family may be nearby," the brief said. "Moreover, health care professionals worried about potential bystander NIED liability can take steps to isolate the patient from his or her family."

Bird's daughters said in their depositions that they knew something was amiss, but the court ruled that was not good enough and that the sisters needed to have witnessed the artery transection and known that a mishap had occurred.

"Even if plaintiffs believed, as they stated in their declarations, that their mother was bleeding to death, they had no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate," the court said.

Nita Bird survived the surgical procedures, but she died of cancer in 1996.

Copyright 2002 by United Press International.

All rights reserved.

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