Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC333322 c/w BC333497, Ernest M. Hiroshige, Judge.
Law Offices of Walsh and de Montesquiou and Paul A. de Montesquiou; Law Offices of Garry O. Moses and Garry O. Moses, for Plaintiffs and Appellants.
Fonda & Fraser, Stephen C. Fraser and Daniel K. Dik for Defendants and Respondents Taro Yokoyama, Robin Young-Sil Kim, and Jennifer Mahan.
Dummit, Briegleb, Boyce & Buchholz and Kevin S. Tanaka for Defendant and Respondent St. Vincent Medical Center.
Schmid & Voiles and Suzanne De Rosa for Defendant and Respondent, Albert P. Injijian.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Plaintiffs Liza Pagador Abcede (Abcede) and Florence Pagador (Pagador), the surviving sisters of Florante Pagador (decedent), appeal from the order dismissing them from this action. The order was entered after the trial court sustained without leave to amend the demurrers of defendants Taro Yokoyama, M.D. (Dr. Yokoyama), Robin Young-Sil Kim, M.D. (Dr. Kim), Jennifer Mahan, P.A. (Physician’s Assistant Mahan), Albert P. Injijian, M.D. (Dr. Injijian), and St. Vincent’s Medical Center (the hospital) to plaintiffs’ second and third causes of action in the first amended complaint. Plaintiffs contend that defendants’ demurrers to these causes of action for negligent and intentional infliction of emotional distress, respectively, were sustained improperly. Inasmuch as we conclude that the trial court improperly sustained defendants’ demurrers to the second cause of action for negligent infliction of emotional distress, we reverse the order of dismissal with directions.
Dr. Kim erroneously was sued as Robin Kim, M.D.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of May 17, 2004, decedent underwent coronary bypass surgery at the hospital. Dr. Yokoyama performed the surgery. Dr. Injijian assisted. Dr. Kim was the anesthesiologist. Following the surgery, Dr. Kim and Physician’s Assistant Mahan transported decedent to the hospital’s intensive care unit (ICU). Abcede and Pagador, who are “both registered nurses with extensive critical care experience, including caring for post operative coronary bypass patients,” were present at 11:00 a.m. when decedent arrived in ICU.
Plaintiffs Abcede and Pagador stayed with their brother and observed first hand the care provided to him from 11:00 a.m. until they were told to leave at 4:00 p.m. During this time, plaintiffs observed decedent become hypotensive. Plaintiffs also observed decedent’s abdomen become increasingly distended, which they believed was a sign that he was bleeding internally. Decedent’s breathing became increasingly rapid and labored as well.
By 1:00 p.m., plaintiffs discussed the delay in their brother’s treatment with the nurses. According to the nurses, the symptoms observed by plaintiffs had been communicated to decedent’s physicians.
Between 1:00 p.m. and 2:00 p.m., Abcede watched nurses give her brother blood. Inasmuch as no blood was coming out of decedent’s drains, Abcede believed that decedent was bleeding internally and that the blood was going into his expanding abdomen. Abcede so informed the nurses. Plaintiffs believed that their brother was being harmed and could die without immediate intervention for his post-operative distress.
About 4:00 p.m., Abcede saw Dr. Yokoyama. She informed him that her brother’s abdomen was severely distended, that she believed he was bleeding internally and that he needed to be taken back to surgery. Shortly thereafter, a male whom plaintiffs believed was a physician told plaintiffs to leave the room or nothing more would be done. Upon leaving their brother’s side, plaintiffs believed that he would be taken back to surgery promptly.
It was not until 7:45 p.m., however, almost four hours later, that decedent was taken back to surgery. At 8:00 p.m., Dr. Yokoyama informed plaintiffs that decedent had died.
Following decedent’s death, his wife, Cielita Pagador, filed a wrongful death action against Dr. Yokoyama and the hospital, alleging that their negligent care and treatment resulted in her husband’s death (Pagador v. Yokoyama et al. (Super. Ct. Los Angeles County, 2005, No. BC333322)).
Cielita Pagador is not a party to this appeal.
Decedent’s parents, Flaviano Pagador and Florencia Pagador, along with decedent’s siblings, Abcede, Pagador, Fresnaida Pagador Lina and Jesus Pagador, filed a separate action against defendants, Dr. Yokoyama, Dr. Injijian, Dr. Kim, Physician’s Assistant Mahan and the hospital. (Pagador et al v. Yokoyama et al. (Super. Ct. Los Angeles County, 2005, No. BC333497)). The first cause of action for wrongful death was brought by decedent’s parents and siblings against all defendants. The second cause of action for negligent infliction of emotional distress and the third cause of action for intentional infliction of emotional distress were brought solely by plaintiffs Abcede and Pagador against all defendants.
Flaviano Pagador, Florencia Pagador, Fresnaida Pagador Lina and Jesus Pagador are not parties to this appeal.
Cielita Pagador subsequently filed a notice of related cases, identifying case number BC333497 and case number BC333322 as related cases. The trial court issued an order declaring the cases to be related within the meaning of Los Angeles Superior Court Local Rule 7.3(f). At a later date, the court ordered the two cases consolidated.
The trial court identified case number BC333322 as the lead case. For ease of reference on appeal, and inasmuch as this appeal only involves the related case, we will continue to refer to the related case by its original case number BC333497.
In case number BC333497, defendants demurred to the complaint. As to the first cause of action for wrongful death, the court sustained the demurrer without leave to amend as to decedent’s siblings, concluding that only decedent’s parents had standing to sue for wrongful death. As to the second and third causes of action for negligent and intentional infliction of emotional distress, the court sustained the demurrer with leave to amend.
Abcede and Pagador, along with their parents, filed a first amended complaint, containing the same causes of action as the original complaint. However, only the second and third causes of action for negligent and intentional infliction of emotional distress were brought by Abcede and Pagador.
All defendants demurred to the second and third causes of action of the first amended complaint. The court sustained the demurrers without leave to amend. With regard to plaintiffs’ negligent infliction of emotional distress cause of action, the court concluded that plaintiffs did not observe the event that caused decedent’s internal bleeding and that plaintiffs’ five hours of observation did not constitute a contemporaneous sensory awareness of the injury producing event and the decedent’s actual injury. The court further noted that, to the extent plaintiffs sought recovery for observing the delay in treating decedent, such recovery was not permitted. In its minute order sustaining the hospital’s demurrer, the court added the following: “[H]ere the cause of the excessive bleeding, discussed in the pleadings, can only be some surgical error during the by-pass surgery[,] not any allegation of failure to promptly seek to treat any excessive bleeding.’
With respect to the third cause of action for intentional infliction of emotional distress, the court concluded that plaintiffs failed to allege any specific actions by defendants performed with the intent or reckless disregard to cause them emotional distress. The court further noted that conclusionary allegations of outrageous, intentional and reckless conduct were insufficient to state a valid cause of action for intentional infliction of emotional distress.
The court thereafter entered an order dismissing this action as to Abcede and Pagador. This appeal followed.
DISCUSSION
Standard of Review
A demurrer tests the legal sufficiency of the complaint. In reviewing an order sustaining a demurrer, we examine the complaint de novo in order to ascertain “whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose.” (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and facts of which judicial notice can be taken. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Negligent Infliction of Emotional Distress
“[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, 667-668, fns. omitted.)
In defendants’ view, the injury producing event for which plaintiffs seek recovery is the negligent cutting of decedent’s spleen during bypass surgery. We disagree and note that this is an allegation contained in Cielita Pagador’s wrongful death complaint, not an allegation contained in plaintiffs’ first amended complaint. Defendants cite no legal authority requiring us to accept as true the allegations contained in Cielita Pagador’s complaint when assessing the sufficiency of the first amended complaint filed by Abcede and Pagador simply because the cases have been consolidated.
In any event, plaintiffs acknowledge that they did not witness their brother’s surgery during which his spleen was cut and therefore they cannot recover damages for negligent infliction of emotional distress for this mishap. Plaintiffs maintain, however, and we agree, that there were two injury producing events. The second event, and the one for which plaintiffs seek recovery, is defendants’ post-operative failure to treat decedent’s internal bleeding.
In Ochoa v. Superior Court (1985) 39 Cal.3d 159, plaintiffs were the parents of Rudy Ochoa, a teenage boy, who died while housed in juvenile hall. Rudy became ill and went to the infirmary for care and treatment. When his parents visited him, they observed that he was extremely sick. Rudy was holding his left side in an effort to relieve severe pain. Upon seeing her son suffering, Mrs. Ochoa expressed her concern to juvenile hall authorities that her son was not receiving proper medical care. (Id. at pp. 162-163.)
The following day, Rudy was admitted into the infirmary. When Mrs. Ochoa visited him, he was very pale, appeared dehydrated, and his skin was clammy and sweaty. He appeared to be going into convulsions, and he was hallucinating during most of the visit. During lucid periods, Rudy complained of being very sick and of being in pain. A very distressed Mrs. Ochoa pleaded with juvenile hall authorities to allow her to take her son to a private doctor. Her requests were refused. (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 163.)
Mrs. Ochoa attempted to bring Rudy’s fever down by applying cold compresses. When infirmary personnel asked her to leave, she refused. Rudy begged his mother not to leave him. Mrs. Ochoa then attempted to roll Rudy onto his side. Rudy began to yell and scream as a result of excruciating pain he suffered in his chest area. He asked for the doctor who was summoned but did not examine Rudy in Mrs. Ochoa’s presence. Rudy was vomiting and was unable to retain any fluids. Infirmary personnel observed him cough up blood. (Ochoa v. Superior Court, supra, 39 Cal.3d at pp. 163-164.)
Juvenile hall authorities again asked Mrs. Ochoa to leave. Rudy held onto her and begged her to stay because he was so sick. Mrs. Ochoa attempted to reassure her son that he would be cared for, but was then required to leave. This was the last time Mrs. Ochoa saw Rudy alive. (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 164.) Although a physician in the infirmary had advised Mrs. Ochoa that Rudy only had the flu, he actually had bilateral pneumonia and a temperature of 105 degrees. (Id. at p. 163.)
In concluding that Mrs. Ochoa had stated a cause of action for negligent infliction of emotional distress, this state’s high court observed that “Mrs. Ochoa was aware of and observed conduct by the defendants which produced injury in her child. She was aware of the fact that her child was in need of immediate medical attention. To her knowledge the defendant had failed to provide the necessary care.” The court was “satisfied that when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted.” (Ochoa v. Superior Court, supra, 39 Cal.3d at pp. 169-170.)
We believe the court’s reasoning in Ochoa is applicable here. Abcede and Pagador seek to recover damages for the emotional distress they suffered as a result of witnessing their brother’s medical needs being ignored. Given their training and experience as critical care nurses, they believed that their brother was bleeding internally and would die without medical intervention. They thus were present at the scene of the injury producing event at the time it occurred and were aware that it was causing injury to their brother. They expressed their concerns to the nursing staff, who communicated decedent’s symptoms to his physicians. Abcede spoke directly to Dr. Yokoyama, told him “her brother’s abdomen was severely distended and that he had to be bleeding and needed to go back to surgery.”
Bird v. Saenz (2002) 28 Cal.4th 910, on which defendants rely, is factually distinguishable. Plaintiffs in Bird were the adult daughters of decedent, who was a cancer patient. During a simple surgical procedure to insert a venous catheter to facilitate chemotherapy, one of decedent’s arteries was nicked, causing internal bleeding and necessitating major surgery.
In concluding that decedent’s daughters did not have a cause of action for negligent infliction of emotional distress, the court rejected the daughters’ argument that the injury producing event was the defendants’ failure to diagnose and treat their mother’s damaged artery, in that the daughters, at the time, did not know there had been a failure to treat the damaged artery. The court explained: “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. Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders. . . . 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. While they eventually became aware that one injury-producing event—the transected artery—had occurred, they had no basis for believing that another, subtler event was occurring in its wake.” (Bird v. Saenz, supra, 28 Cal.4th at p. 917.)
In contrast to the plaintiffs in Bird, who were laypersons unable to understand the significance of post surgical medical events (Bird v. Saenz, supra, 28 Cal.4th at pp. 917-918), Abcede and Pagador were well aware that defendants’ post operative failure to treat decedent was causing him injury because they were registered nurses with extensive critical care experience, including caring for post operative coronary bypass patients. Specifically, they recognized that their brother was bleeding internally and would die without medical intervention and suffered distress as a result. Bird, therefore, is of no aid to defendants.
Meighan v. Shore (1995) 34 Cal.App.4th 1025 and Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, 1427-1482, which the trial court cited in support of its ruling sustaining the demurrer to the second cause of action also are inapposite. In Meighan, plaintiff’s husband suffered chest pains and was taken to the hospital. The husband’s initial cardiogram was abnormal but failed to establish that he was having a heart attack or had suffered heart damage. It was not until the next morning that it was determined that he had suffered a heart attack resulting in damage to his heart. (Meighan, supra, at pp. 1030-1031.)
Plaintiff Meighan was “trained as a nurse” and knew that medication to treat a heart attack was available and only effective during the early hours of a heart attack. (Meighan v. Shore, supra, 34 Cal.App.4th at p. 1031.) She was with her husband for a few hours on the evening he was admitted to the hospital. It was during this time that it was alleged that the hospital negligently failed to ascertain that her husband was having a heart attack. Plaintiff did not know that her husband had had a heart attack and that medical personnel were negligent in failing to render needed treatment to her husband at this time, however. Stated otherwise, the wife did not have contemporaneous awareness that the defendants’ conduct was causing injury to her husband. (Id. at p. 1045.) In contrast, here, Abcede and Pagador believed that decedent was bleeding internally, that he was not receiving treatment for this deadly condition, and would die without timely intervention.
In Golstein v. Superior Court, supra, 223 Cal.App.3d 1415, a young boy with curable cancer died after being over radiated during the course of his treatment. At the time the radiation treatment was administered, the boy’s parents had no idea their son was being overexposed. The negligent treatment only came to light when the radiation poisoning manifested itself. (Id. at p. 1418.) Inasmuch as the parents did not know that the defendants’ conduct was causing injury to their son at the time it occurred, they did not experience “a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.” (Id. at p. 1427.)
In this case, the trial court ruled that “to the extent Plaintiffs seek recovery for observing the alleged delay in the medical treatment of the decedent, such recovery under a theory of [negligent infliction of emotional distress] is not permitted as ‘distress recovery is not allowed.’ (Cf. Golstein v. Superior Court[, supra,] 223 Cal.App.3d 1415, 1427-1428.)” The court’s reliance on Golstein was misplaced, and its quote from Golstein was taken out of context. The court in Golstein stated, “In the case of an event which cannot be perceived, distress recovery is not allowed.” (Golstein v. Superior Court, supra, 223 Cal.App.3d at p. 1427.)
In contrast to Golstein, this case involves an injury producing event that was perceived. Unlike the parents in Golstein who did not know that their son had been injured until the radiation poisoning manifested itself, plaintiffs Abcede and Pagador knew that their brother was bleeding internally and that unless he was taken back to surgery he would die. Golstein court’s quoted statement therefore is inapplicable.
Inasmuch as plaintiffs have alleged that they are closely related to the decedent, that they knew he was bleeding internally, that hospital personnel were aware of but not tending to his medical needs, that plaintiffs were contemporaneously aware that he would die without medical intervention and that they suffered serious emotional distress as a result, we conclude that they adequately have stated a cause of action for negligent infliction of emotional distress. (Thing v. La Chusa, supra, 48 Cal.3d 644, 667-668, fns. omitted.) The trial court, therefore, improperly sustained defendants’ demurrers to plaintiffs’ second cause of action.
Intentional Infliction of Emotional Distress
“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593.) To be extreme and outrageous, conduct must be so outrageous and extreme that it exceeds all limits of decency, and must be regarded as utterly intolerable and atrocious in a civilized society. (Ibid.)
Our review of the allegations of plaintiffs’ third cause of action for intentional infliction of emotional distress compels the conclusion that they are insufficient to state a cause of action. While the properly pleaded factual allegations demonstrate negligence, they do not demonstrate that defendants acted with the intent to cause plaintiffs severe emotional distress or with reckless disregard of causing them severe emotional distress.
DISPOSITION
The order of dismissal is reversed. The trial court is directed to vacate its order sustaining defendants’ demurrers without leave to amend and to enter a new and different order overruling the demurrers as to the second cause of action for negligent infliction of emotional distress and sustaining the demurrers as to the third cause of action for intentional infliction of emotional distress without leave to amend. Plaintiffs are to recover their costs on appeal.
VOGEL, J.Acting Presiding Justice
I concur: ROTHSCHILD, J. VOGEL, J.
I concur in the result reached by the majority but write separately because I do not agree with my colleagues’ analysis -- and because I do not agree with their decision to bury this case in the legal landfill of unpublished decisions.
Our Supreme Court has limited recovery for negligent infliction of emotional distress to cases in which the plaintiff has visually or otherwise perceived and contemporaneously understood the injury-causing event, thus barring recovery for medical negligence when it occurs behind closed doors or otherwise outside the reach of the plaintiff’s sensory perception. But however “uncommon” it may be for a relative to visit a loved one in a hospital and both “witness the apparent neglect of the patient’s immediate medical needs by medical personnel” (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 6) and contemporaneously “perceive medical negligence” at the time it occurs (Bird v. Saenz (2002) 28 Cal.4th 910, 918), the Supreme Court has said there can be a valid claim under those circumstances. This is that uncommon case, and it is for this reason, as explained in Part G, post, that I believe this opinion should be published.
A.
On May 17, 2004, Florante Pagador had coronary bypass surgery at St. Vincent’s Medical Center. When the surgery was completed, Pagador was moved to the intensive care unit where his sisters, Liza Pagador Abcede and Florence Pagador, “both registered nurses with extensive critical care experience, including caring for post operative coronary bypass patients,” were waiting for him.
Beginning at about 11:00 a.m., the sisters “directly observed the care provided to their brother,” observed him “become hypotensive in spite of [intravenous] fluids and blood being administered,” observed his “abdomen become increasingly distended and believed it was a sign of internal bleeding.” They saw “that the nurses were giving [their] brother blood and pointed out that no blood was coming out of [his] drains, which meant that [he] was bleeding internally, with the bleeding likely going into [his] expanding abdomen.” The sisters also “observed their brother’s respirations become increasingly rapid and labored,” and they complained to the nurses about “the delay in addressing” their brother’s condition. The nurses told the sisters they had talked to the doctors and relayed the sisters’ concerns, but the doctors “did nothing to reverse the ominous and deadly signs and symptoms in a timely manner.”
The sisters, “because of their extensive medical, nursing, and teaching experience,” simultaneously and “contemporaneously observed the lack of medical and nursing care and treatment.” They “knew and appreciated the warning signs of internal bleeding and brought these to the attention of the nursing staff,” and knew their brother was not receiving appropriate care. The sisters “are not lay people who did not know what was happening, or what should have been done,” but knew “from their direct percipient observation and perception” of the negligent acts and omissions, the significance of the negligent acts and omissions, and knew to a medical certainty of the harm that would occur if the bleeding was not controlled. They “observed the untimeliness of the medical and nursing intervention [that] resulted in the death of their brother from internal bleeding.”
Shortly before 4:00 p.m., a doctor finally came to the intensive care unit to care for Pagador, at which point the sisters told him their “brother’s abdomen was severely distended and that he had to be bleeding internally and needed to go back to surgery.” The sisters, having been told that Pagador would not be treated unless they left the room, departed believing that Pagador would be taken “quickly” back to the operating room. In fact, further surgery did not occur for several more hours, and Pagador died shortly thereafter.
In May 2005, the sisters sued the medical center, the doctors and others, alleging causes of action for negligent and intentional infliction of emotional distress. Defendants’ demurrers to the first amended complaint were sustained without leave to amend, the trial court finding that the cause of Pagador’s death could “only be some surgical error during the by-pass surgery,” not the failure to promptly treat the post-surgical bleeding. A judgment of dismissal was entered, and the matter is before us on the sisters’ appeal.
B.
With the Supreme Court’s decision in Dillon v. Legg (1968) 68 Cal.2d 728 (where a mother was present when her child was struck and killed by an automobile), California “became the first American jurisdiction to hold that a parent who witnesses the negligent infliction of death or injury on her child may recover for the resulting emotional trauma . . . in cases where the parent does not fear imminent physical harm.” (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 166.) To state the cause of action created by Dillon, a plaintiff had to allege (1) that she was located near the scene of the accident, (2) that the shock resulted “from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident,” and (3) that the plaintiff and victim were closely related. (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 166.)
It is the second element of the Dillon test that is at issue on this appeal -- that is, whether the emotional distress suffered by the sisters resulted from their “sensory and contemporaneous observance” of the defendants’ alleged negligence.
C.
In Ochoa v. Superior Court, supra, 39 Cal.3d 159 , the surviving parents of a 13-year-old boy (Rudy) sued the County of Santa Clara, alleging that their son became ill while in custody. When the parents visited Rudy and saw that he was “‘extremely ill,’” the authorities told them Rudy had a “bug” and had been seen in the infirmary. Two days later, Rudy was admitted to the infirmary, where his parents visited and found him pale, dehydrated, clammy, and sweaty. He was convulsing and hallucinating during most of his mother’s visit. When Mrs. Ochoa asked whether Rudy could be seen by the family’s physician, a juvenile hall doctor told her Rudy “only had the flu” and should be left in the infirmary. Mrs. Ochoa returned to her son’s side to find him in “excruciating pain.” When he tried to roll over, he yelled and screamed, and pleaded for a doctor. He vomited continuously throughout this period. He died the next day, having not been seen by a physician since he entered the infirmary. (Id. at pp. 163-164.)
The Supreme Court confirmed in Ochoa that recovery for negligent infliction of emotional distress does not require a “visual” perception of the negligent act but does require that the plaintiff fully perceived it. (Ochoa v. Superior Court, supra, 39 Cal.3d at pp. 168-169.) Because the mother in Ochoa was able to perceive “the connection between defendants’ conduct and her child’s injury,” she could recover on a negligent infliction of emotional distress theory. (Id. at p. 170 [“We are satisfied that when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted”].) In footnote 6, the Supreme Court explained:
“The complaint reveals that Mr. Ochoa only visited his son once and that he was extremely distressed by what he saw. As we shall explain, such distress is actionable under Dillon. Presumably, any further distress suffered by him was not the result of what he saw, but rather the result of what was related to him by his wife after her subsequent visit with their son. Under Dillon such distress is not actionable. The discussion in the text focuses on the experiences of Mrs. Ochoa. The analysis, however, is applicable to Mr. Ochoa’s cause of action. It has been said that a distinction between distress caused by personal observation of the injury and by hearing of the tragedy from another is justified because compensation should be limited to abnormal life experiences which cause emotional distress. While receiving news that a loved one has been injured or has died may cause emotional distress, it is the type of experience for which in a general way one is prepared, an experience which is common. By contrast few persons are forced to witness the death or injury of a loved one or to suddenly come upon the scene without warning in situations where tortious conduct is involved. In the present case, for example, while it is common to visit a loved one in a hospital and to be distressed by the loved one’s pain and suffering, it is highly uncommon to witness the apparent neglect of the patient’s immediate medical needs by medical personnel.” (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 165, fn. 6, emphasis added.)
D.
Further refinements were announced in Thing v. La Chusa (1989) 48 Cal.3d 644, where the Supreme Court reexamined the rules originally stated in Dillon and held that a cause of action for negligent infliction of emotional distress is sufficient “only if the 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 emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa, supra, 48 Cal.3d at p. 647, emphasis added.)
The mother in Thing was not present when her child was struck by an automobile but alleged that she suffered emotional distress when she arrived at the accident scene, finding a bloody and unconscious child who she believed was dead. (Thing v. La Chusa, supra, 48 Cal.3d at p. 647.) The trial court sustained a demurrer without leave to amend, finding the mother could not state a cause of action. The Supreme Court agreed. (Id. at p. 669.)
After examining the post-Dillon extensions of the tort of negligent infliction of emotional distress, the Supreme Court held in Thing that the “‘case-to-case’ or ad hoc approach” was not working, and that it was time to clarify the rules. (Thing v. La Chusa, supra, 48 Cal.3d at p. 661.) The Court explained that, “[n]othwithstanding the broad language in some of [its own earlier] decisions, it [was] clear that foreseeability of the injury alone” was not a useful guideline, and that “the social cost of imposing liability on a negligent tortfeasor for all foreseeable emotional distress suffered by relatives who witnessed the injury” was too high. (Id. at pp. 663, 664.) Thing quotes footnote 6 from Ochoa and adds this:
“Ochoa [in footnote 6] offers additional guidance, justifying what we acknowledge must be arbitrary lines to similarly limit the class of potential plaintiffs if emotional injury absent physical harm is to continue to be a recoverable item of damages in a negligence action. The impact of personally observing the injury-producing event in most, although concededly not all, cases distinguishes the plaintiff’s resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury. Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences.” (Thing v. La Chusa, supra, 48 Cal.3d at p. 666, emphasis added.)
E.
The Supreme Court revisited the issue in Bird v. Saenz, supra, 28 Cal.4th 910, where the plaintiff (Janice Bird) took her mother (Nita Bird) to a hospital for a 20-minute outpatient surgical procedure (the insertion of a venous catheter for the delivery of chemotherapeutic agents to treat metastatic ovarian cancer). About an hour and a half after the procedure started, a doctor told Janice they “had more trouble” than anticipated and that Nita “might have had a mild stroke.” Soon after Janice returned to the waiting room, she saw Nita “‘being rushed down the hallway to the [critical care unit]. She was bright blue [and her] feet were way up in the air, her head was almost touching the ground, there [were] all these doctors and nurses around there and they’re running down the hallway, down to that end of the hospital . . . .’ The medical personnel rushed Nita into a room and closed the door behind them.” A doctor told Janice that an artery or vein might have been “nicked” and that blood went into Nita’s chest, and another doctor told her that major surgery would be required. Nita ultimately died. (Id. at pp. 912-914.)
Janice and her sister sued the hospital and medical personnel for negligent infliction of emotional distress, alleging that they were “present at the scene of the injury-producing events . . . at the time when they occurred,” and that they were aware that the defendants were causing injury to Nita. The defendants moved for summary judgment, contending that Janice and her sister had not been present in the operating room at the time Nita’s artery was transected and had learned about it only after it occurred -- and thus could not recover on a theory of negligent infliction of emotional distress. In opposition, Janice and her sister explained that the defendants’ negligence included their “failure immediately to diagnose and treat the damaged artery,” and stated in supporting declarations that they knew their “mother was severely injured,” “that the injury was continuing,” and that they were aware, when Nita was rolled through the hallway, that their “mother was bleeding to death as [they] watched.” (Bird v. Saenz, supra, 28 Cal.4th at p. 914.) The trial court agreed with the defendants, and so did the Supreme Court.
The Supreme Court rejected the plaintiffs’ effort “to redefine the injury-producing event to include something of which they were contemporaneously aware. In their own words, ‘[w]hile [they] were not in the operating room at the time Nita Bird’s artery was transected, [they] do contend that [they] were aware that Nita Bird’s artery and/or vein had been injured as a result of Defendants’ conduct, that Defendants failed to diagnose that injury and that Defendants failed to treat that injury while it was occurring.’
“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. Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders. Here, what plaintiffs actually saw and heard was a call for a thoracic surgeon, a report of Nita suffering a possible stroke, Nita in distress being rushed by numerous medical personnel to another room, a report of Nita possibly having suffered a nicked artery or vein, a physician carrying units of blood and, finally, Nita still in distress being rushed to surgery. 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. While they eventually became aware that one injury-producing event -- the transected artery -- had occurred, they had no basis for believing that another, subtler event was occurring in its wake.
“In other [negligent infliction of emotional distress] cases decided after Thing . . . and based on alleged medical negligence, courts have not found a layperson’s observation of medical procedures to satisfy the requirement of contemporary awareness of the injury-producing event. This is not to say that a layperson can never perceive medical negligence, or that one who does perceive it cannot assert a valid claim for [negligent infliction of emotional distress]. To suggest an extreme example, a layperson who watched as a relative’s sound limb was amputated by mistake might well have a valid claim for [negligent infliction of emotional distress] against the surgeon. Such an accident, and its injury-causing effects, would not lie beyond the plaintiff’s understanding awareness. But the same cannot be assumed of medical malpractice generally.” (Bird v. Saenz, supra, 28 Cal.4th at pp. 917-918, emphasis added.)
The Supreme Court distinguished Ochoa, explaining that therethe “injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention. Such a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson.” (Bird v. Saenz, supra, 28 Cal.4th at pp. 919-920, emphasis added.) For similar reasons, the Supreme Court expressly overruled Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573, where a child was seriously injured by an incorrectly prepared intravenous solution administered while the mother was holding the child, who immediately convulsed and lapsed into a coma. Rejecting Mobaldi’s holding that there was a direct and contemporaneous observation of the harm, the Supreme Court in Bird explained that the negligent act in Mobaldi was the use of the wrong solution, which the mother could not meaningfully perceive. (Bird v. Saenz, supra, 28 Cal.4th at pp. 920-921.) The point is not that the perception has to be visual, but rather that the negligent act has to be “contemporaneously understood as causing injury.” (Id. at p. 916.)
Bird concludes this way: “In summary, plaintiffs have not shown they were aware of the transection of Nita’s artery at the time it occurred. 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 hall by medical personnel. In view of these undisputed facts, plaintiffs cannot show they were ‘present at the scene of the injury-producing event at the time it occur[ed] and were then aware that it [was] causing injury to the victim.’” (Bird v. Saenz, supra, 28 Cal.4th at pp. 921-922.)
F.
Unlike the plaintiffs in Bird, who “had no reason to know that the care [their mother] was receiving to diagnose and correct the cause of the problem was inadequate” (Bird v. Saenz, supra, 28 Cal.4th at p. 917, emphasis added), the sisters in our case, both critical care nurses, did have reason to know their brother was bleeding internally, and did have reason to know that the failure to stop the bleeding was causing him harm. The sisters are trained medical professionals, not laypersons, and the negligent omission -- the failure to treat Pagador’s internal bleeding -- was not “hidden from [their] understanding awareness” (id. at p. 920). Although our case does not present the precise example posed by the Supreme Court in Bird -- a layperson watching as a relative’s sound limb is amputated (id. at p. 918) -- it does involve the “failure to provide medical assistance” contemplated by Bird (id. at p. 920) and thus presents facts constituting the cause of action left standing in the wake of Ochoa, Thing, and Bird. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [on review following an order sustaining a demurrer without leave to amend, we assume the truth of all properly pleaded facts].)
Defendants repeatedly mischaracterize this case as one based on a “misdiagnosis or failure of diagnosis,” and then insist that such things can never be perceived at the moment they occur. Their faulty assumption makes their conclusion irrelevant -- this is a failure to treat case in which the physical effects of that negligence were visible to the sisters. Similarly, Defendants’ reliance on Meighan v. Shore (1995) 34 Cal.App.4th 1025, is misplaced because it is factually inapposite -- the plaintiff (a wife whose husband had a history of heart problems) went home when she was told her husband was not experiencing a heart attack, and only learned the next morning that he had suffered a heart attack. (Id. at p. 1045.) She had no contemporaneous awareness of the injury to her husband.
For these reasons, I agree with the majority’s conclusion that the sisters must be allowed to pursue their negligent infliction of emotional distress cause of action.
I agree with the majority’s conclusion that the sisters have not stated a cause of action for intentional infliction of emotional distress. Although the facts alleged show negligence, they do not come close to showing the sort of intentionally extreme and outrageous conduct that is required for this tort. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593; Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)
G.
Which brings me to the issue of publication. Rule 8.1105(b) of the California Rules of Court provides with regard to publication by the Courts of Appeal:
“(c) Standards for certification
“An opinion of a Court of Appeal or a superior court appellate division--whether it affirms or reverses a trial court order or judgment -- should be certified for publication in the Official Reports if the opinion:
“(1) Establishes a new rule of law;
“(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
“(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;
“(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
“(5) Addresses or creates an apparent conflict in the law;
“(6) Involves a legal issue of continuing public interest;
“(7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;
“(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
“(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.
“(d) Factors not to be considered
“Factors such as the workload of the court, or the potential embarrassment of a litigant, lawyer, judge, or other person should not affect the determination of whether to publish an opinion.” (Emphasis added.)
I count at least five reasons to publish. Both opinions apply existing law to a set of facts significantly different from those stated in published opinions. (Rule 8.1105(c)(2).) My opinion explains an existing rule of law (at least I hope it does). (Rule 8.1105(c)(3).) Both opinions address a legal issue of continuing public interest. (Rule 8.1105(c)(6).) My opinion makes a “significant contribution” to the published cases by reviewing the development of the law governing the tort of negligent infliction of emotional distress (again, I hope it does this). (Rule 8.1105(c)(7).) The majority opinion is accompanied by this separate concurring opinion, and the publication of both would illustrate the development of the law governing negligent infliction of emotional distress. (Rule 8.1105(c)(9).)
Why not publish? My colleagues do not say, leaving me to conclude that their decision runs afoul of both the letter and the spirit of our recently amended rules governing the decision to publish. Under the old rules (former rule 976), the presumption was against publication. Under the new rule, it is just the opposite -- an opinion “should be certified for publication” if it meets any of the criteria listed in rule 8.1105(c). When five criteria apply, an opinion should certainly be published.