Keys

Defendant Alta Bates Summit Medical Center (Alta Bates) appeals from the portion of a judgment awarding plaintiffs Phyllis Keys and *486 Erma Smith damages on their claims for negligent infliction of emotional distress (NIED). Defendant contends there is no evidence to support the jury’s finding that plaintiffs meaningfully comprehended the medical negligence that led to the death of their family member at the time the negligence was occurring. We disagree and affirm the judgment with respect to the emotional distress claims.

Factual History

Madeline Knox was the mother of plaintiff Phyllis Keys and the sister of plaintiff Erma Smith. On September 26, 2008, Keys and Smith accompanied Knox to Alta Bates where she underwent surgery on her thyroid. At approximately 6:45 p.m., Knox was transferred from a postanesthesia care unit to a medical-surgical unit. At that time, a nurse noticed Knox’s breathing was “noisy,” and thought it was stridor, a sound that comes from the upper airway suggesting the airway is obstructed. Because of Knox’s respiratory difficulty, at 6:46 p.m., the nurse called the hospital’s rapid assessment team to evaluate her. The rapid assessment team is…

Dissenting. — I do not question for a moment the emotional distress plaintiffs must have endured while observing their mother and sister struggle to breathe, and the unsuccessful efforts that were made to remedy her distress. I also acknowledge reservations about the logic and wisdom of the standard that has evolved from the decisions of our Supreme Court as to when a bystander may recover for experiencing such emotional distress. *492 Nonetheless, being bound to follow those decisions, I cannot in good conscience agree that the evidence in this case supports the recovery of damages for the negligent infliction of emotional distress (NIED).

The negligence in this case was the misdiagnosis of the cause of Madeline Knox’s compromised ability to breathe and resulting stridor, noisy breathing indicative of airway obstruction. This was not a situation as in Ochoa v. Superior Court (1985) 39 Cal.3d 159 [ 216 Cal.Rptr. 661 , 703 P.2d 1 ], where the authorities ignored obvious signs of distress and did nothing to treat the conditions for almost two days. Here, medical personnel responded immediately to Knox’s stridor, promptly summoning the hospital’s rapid assessment team and then the…

Filed 2/23/15 Keys v. Alta Bates Summit Medical Center CA1/

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

PHYLLIS KEYS et al., Plaintiffs and Respondents,

A140038

v. ALTA BATES SUMMIT MEDICAL (Alameda County CENTER, Super. Ct. No. RG09478812) Defendant and Appellant.

Defendant Alta Bates Summit Medical Center (Alta Bates) appeals from the portion of a judgment awarding plaintiffs Phyllis Keys and Erma Smith damages on their claims for negligent infliction of emotional distress (NIED). Defendant contends there is no evidence to support the jury’s finding that plaintiffs meaningfully comprehended the medical negligence that led to the death of their family member at the time the negligence was…