Jansen v. Children's Hospital Medical Center

OPINION

DRAPER, P. J.

Plaintiff mother, as special administratrix, sought damages for the wrongful death of her 5-year-old daughter, allegedly resulting from the malpractice of respondent hospital. She added a count for emotional trauma and allegedly resulting physical injury, caused to the mother individually by witnessing the progressive decline and ultimate death of her daughter in the hospital. The hospital demurred to the count seeking damages for the mother’s injury. The demurrer was sustained without leave to amend, the count was dismissed, and plaintiff appeals. This appeal concerns only the individual rights of the mother for her own alleged injuries.

The complaint alleges that: the daughter, suffering from some unspecified ailment, was admitted to the hospital at a date not specified; defendant agreed to “diagnose and treat” the daughter; it “negligently discharged those obligations” and as a proximate result the child died in the hospital. It is also' alleged that the mother accompanied her child to the hospital, “stayed with her for extended periods of time during her hospitalization”; “witnessed [her] last hours and her death”; the child “died painfully . . . from what was subsequently diagnosed as a massive gastro-intestinal hemorrhage due to a penetrating duodenal ulcer.”

The issue is the application of a 1968 decision

(Dillon

v.

Legg,

68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912]).

Dillon

for the first

[24]

time in this state established the rule that a mother who “was in close proximity” and was an eyewitness to the striking of her child by an automobile could recover for physical injury resulting from emotional shock caused to her, even though the mother was not herself in the “zone of danger.” Our question is whether the rule of

Dillon