Preview
Suparhl' Cau bf Clnmll
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Count! 0f Bum
gUmr—
ROBERT H. ZIMMERMAN, BAR N0. 84345 l
SCHUERING ZIMMERMAN & DOYLE, LLP L 12/4/2020
400 University Avenue
Sacramento, California 95825-6502 E
(916) 567-0400 D Ki rFla .Clark
FAX: 568-0400
Ev
FILED
Attorneys for Defendant ENLOE MEDICAL CENTER
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BU'I'I‘E
PATSY NEWTON, individually; HAROLD NO. 20CV01091
NEWTON, individually; SUZANNE
BOLDEN, individually, ASSIGNED TO JUDGE TAMARA L.
MOSBARGER FOR ALL PURPOSES
.J
Plaintiffs,
MEMORANDUM OF POINTS AND
vs. AUTHORITIES IN SUPPORT OF
DEFENDANT ENLOE MEDICAL
ENLOE MEDICAL CENTER; and DOES l - CENTER'S MOTION FOR JUDGMENT
50, et al., ON THE PLEADINGS
Defendants. Date: December10,2020
Time: 1:30 p.m.
Dept: 1
Action Filed: May 29, 2020
Trial Date: December 14, 2020
INTRODUCTION
Plaintiffs Patsy Newton, Harold Newton, and Suzanne Bolen, brought this action
against defendant Enloe Medical Center alleging the following causes of
action: (l) Elder
Abuse; (2) Violation of the Patients' Bill of Rights; (3) Negligent lnfliction of Emotional
Distress; and (4) Loss of Consortium. Enloe Medical Center seeks judgment on the
pleadings as to Plaintiffs' cause of action for Negligent lniction of Emotional Distress.
///
///
///
0l304l66.WPD
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS
ll.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs herein led their Complaint on May 29, 2020. (See Exhibit A to Declaration
of Robert H. Zimmerman in Support of Motion for Judgment on the Pleadings
(Zimmerman Declaration) at ll 2.) Counsel for Defendant ENLOE MEDICAL CENTER was
retained on June 19, 2020. The Complaint alleges four causes of action, including: (l)
Elder Abuse; (2) Negligent lniction of Emotional Distress; (3) Loss of Consortium; and
(4) Violation of Patients' Bill of Rights. On August 13, 2020, the Court granted Plaintiffs'
Motion for Trial Preference. On September 2, 2020, the Court set a jury trial date for
December l4, 2020, over the objection of Defendant.
According to the complaint, Ms. Newton was admitted to Enloe Medical Center on
ll, 2019 after she fell and fractured her femur. (Complaint at 3:25-27.)
September
she remained at Enloe Medical Center, where she relied upon
Following surgery,
specialized 24-hour care. (Complaint at 4:1-2.)
lt is alleged that Ms. Newton was at high risk for the development of life-threatening
and pressure sores. (Complaint at 4:3-4.) lt is also alleged that Defendant
debilitating
Ms. Newton to monitor her condition, address her pain, turn and
neglected by failing
to monitor and treat her pressure sore, and failing to maintain her
reposition her, failing
overall and functioning. (Complaint at 4:11-14.) Ms.
physical, mental, psychosocial
Newton's wound allegedly advanced to a Stage 4 pressure wound. (Complaint at 4: l 4- 1 5.)
Newton's Suzanne Bolen, discovered the wound after witnessing her
daughter,
mother not being turned and repositioned for multiple days. (Complaint 4: l 9-20.) Suzanne
Bolen was allegedly horrified at what she observed and immediately knew her mother
was injured and in grave jeopardy. (Complaint at 4:20-22.) She contends
severely
emotional injury from witnessing the neglect and abuse of Patsy Newton.
Plaintiffs’ Second Cause ofAction alleging Negligent lnfliction of Emotional Distress
does not state facts sufficient to constitute a cause of action. Defendant now moves for
section 438(c)(l)(B)(2).
judgment on the pleadings pursuant to Code of Civil Procedure
01304166.WPD 2
MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF DEFENDANT
ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS
Ill.
APPLICABLE LAW
Code of Civil Procedure section 438 provides, in pertinent part, as follows:
(b)(1) A party may move for judgment on the pleadings.
(c)(l) The motion provided for in this section may only be made on
one of the following grounds:
(B) lf the moving party is a defendant, that either of the following
conditions exist:
(ii) The complaint does not state facts sufficient to constitute a cause
of action against that defendant.
(2) The motion provided for in this section may be made as to either
of the following:
(A) The entire complaint or cross-complaint or as to any of the causes
of action stated therein.
(f) The motion provided for in this section may be made only after
one of the following conditions has occurred:
(2) lf the moving party is a defendant, and the defendant has already
filed his or her answer to the complaint and the time for the defendant to
demur to the complaint has expired.
IV.
ARGUMENT
The law of negligent iniction of emotional distress in California is typically
analyzed by reference to two theories of recovery: the "bystander" theory and the "direct
victim" theory. (Burgess u. Superior Court (l 992) 2 Cal.4th 1064.) Bystander cases address
the question of duty in circumstances in which a plaintiff seeks to recover damages as a
percipient witness to the injury of another. (Id. at 1072.) ln the absence of physical injury
01304166.WPD 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS
or impact to the plaintiff himself, damages for emotional distress should be recoverable
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. (Id. at 1073.) Plaintiffs‘ Complaint fails to state facts
to support the second element of "bystander" theory of liability.
A. Plaintiff Suzanne Bolen’s Allegations Claiming Negligent Infliction of Emotional
Distress Fail to State Facts Sufficient to Constitute a Cause of Action Because
Suzanne Bolen Was Not Present at the Scene of the Injury-Producin Event at
the Time It Occurred and Then Aware That It Was Causing Injury to t e Victim
Plaintiffs‘ Complaint fails to state a cause of action for negligent iniction of
emotional distress under a "bystander" theory of liability, because Suzanne Bolen was not
contemporaneously aware the alleged injury-producing event (delay and/or inaccurate
was causing injury to Patsy Newton. Thus, Plaintiffs have failed to allege
diagnosis)
sufcient facts under the second Burgess element to constitute a cause of action for
negligent infliction of emotional distress.
ln Bird U. Saenz (2002) 28 Cal.4th 910, the California Supreme Court discussed the
second element of the bystander theory of liability test articulated in Burgess. The Bird
plaintiffs brought their mother to the hospital to undergo a surgical procedure. Later, they
received a that their mother possibly had a stroke. They then witnessed their
report
mother in distress rushed numerous medical personnel to another room, at
being by
which point the plaintiffs received a report that their mother possibly suffered a nicked
iniction of emotional distress,
artery or vein. The plaintiffs sought to recover for negligent
that they were all present at the scene of the injury-producing events, and that
alleging
aware that Defendants were injury-to their mother. Defendants
they were all causing
moved for on the ground that the plaintiffs had not observed the
summary judgment,
injury, and they only learned about it from others after it had occurred. (Id. at 914. )
On the California Supreme Court considered whether Defendants were
appeal,
entitled to for plaintiffs' failure to meet the second element of the
summary judgment
01304166.WPD 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS
Burgess test. The Court noted Wilks u. Hom (1 992) 2 Cal.App.4th 1264, 1272-1 273, wherein
it was held that a plaintiff may recover based on an event perceived so long as the event
is contemporaneously understood as causing injury to a close relative. Regarding the
"contemporaneously understood" language, the Bird court concluded that the problem
with dening the injury-producing event as defendants' failure to diagnose and treat the
patient, is that the plaintiffs cannot meaningfully perceive the alleged failure. (Bird v.
Saenz, supra, 28 Cal.4th at 91 7.) Except in the most obvious cases, a misdiagnosis is
beyond the awareness of lay bystanders. (Id.) The Bird court applied those principles to
the facts before it, holding that even if the 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. (Id.)
The Bird court also relied upon several other cases that are relevant here. For
in Thing v. La Chusa (1989) 48 Cal.3d 644, the California Supreme Court held
example,
that the as a matter of law could not state a claim for negligent iniction of
plaintiff
emotional distress, because the plaintiff became aware of the injury to her child only after
her it had occurred. Under those facts, the plaintiff could not satisfy the
somebody told
of been present at the scene of the injury-producing event, and
requirement having
been aware that it was injury to the victim. (Bird v. Saenz, supra, 28
having causing
Cal.4th at 915-916.)
The Bird court also relied upon Meighan v. Shore (1995) 34 Cal.App.4th 1025. ln
the who was trained as a nurse, feared that her husband was
Meighan, plaintiff wife,
experiencing a heart attack and believed that it was not being treated appropriately in the
emergency room. In fact he was suffering a heart attack, but initial test results were to the
Saenz, 28 Cal.4th at
contrary and physicians misdiagnosed the condition. (Bird v. supra,
919.) The Meighan court concluded the plaintiff had no viable claim for negligent iniction
of emotional distress. Plaintiff‘s training as a nurse and belief that her husband was
///
01304166.WPD 5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS
suffering from a heart attack was not enough for the court to conclude that plaintiff
understood and perceived the injury-causing event. (Id. at 919.)
The Bird court also relied upon Wright v. City ofLos Angeles (l 990) 2 l 9 Cal.App.3d
318. In Wright, a relative who watched a paramedic conduct a cursory medical
examination that failed to detect signs of sickle cell shock was permitted to sue for
wrongful death, but not for negligent iniction of emotional distress. While the relative
was present at the scene at the time the injury-producing event occurred, there was no
evidence he was then aware that the decedent was being injured by the paramedic's
negligent conduct. (Id. at 350.)
Finally, the Bird court relied upon Golstein v. Superior Court (l 990) 223 Cal.App.3d
1415. ln Golstein, the parents of a child with curable cancer watched as he underwent
radiation therapy. That the child had been lethally overexposed was not discovered until
later, when he developed symptoms of radiation poisoning. While the plaintiffs had
observed the procedure that was later determined to have been an injury-producing
were not then aware the treatment was causing injury. ln denying the
event, they
cause of action, the Golstein court interpreted Thing to require that plaintiffs
plaintiffs'
experience a contemporaneous sensory awareness of the causal connection between
the conduct and the (Golstein v. Superior Court, supra, 223
negligent resulting injury.
Cal.App.3d at 1427-1428.)
Here, Plaintiffs allege Enloe Medical Center staff neglected Ms. Newton by failing
to monitor her condition, address her pain in order to be able to turn and reposition her,
her overall physical,
failing to monitor and treat her pressure sore, and failing to maintain
demonstrated
mental, and psychosocial functioning. (Complaint at 4:1 1-1 4.) However, as
in Bird, Meighan, Golstein, Thing, and Wright, Plaintiffs’ Complaint does not properly
allege that Suzanne Bolen was contemporaneously aware of the alleged negligence.
As in Ms. Bolen allegedly spoke with staff members at Enloe Medical
Meighan,
Center their care in prevention of the pressure ulcer. However, Ms. Bolen's
regarding
to state a cause of action, as even the trained nurse
alleged complaints are insufcient
01304166.wpp 6
MEMORANDUM OF POINTS AND AUTHORITIES lN SUPPORT OF DEFENDANT
ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS
who complained of the care and treatment as it was occurring in Meighan did not
overcome demurrer. Suspicion alone is not enough to prove contemporaneous
understanding of the injury-causing event.
As in Wright, Ms. Bolen was allegedly present at the scene at the time the
injury-producing event occurred. She was allegedly present during the staff‘s failure to
turn, and failure to provide other interventions to prevent the pressure sore. However, she
was not aware of the damaging effects of the alleged negligence until the occurrence of
the pressure sore, AFTER the alleged negligence. Thus, Ms. Bolen was not then aware of
the treatment provided by staff was causing injury while it was happening.
As in Golstein, Ms. Bolen could not have been "then aware" the alleged negligence
was causing the injury, because she does not have an expert level understanding of
treatment and care related to the prevention of pressure sores. Ms. Bolen has not alleged
an expertise in medicine that could have provided insight into the failure to provide
adequate care. While she may have suspected an error, she could not have been sure.
Further, Ms. Bolen cannot claim this is one of the "most obvious cases" where a
Ms. Bolen
misdiagnosis is within the bystanders' realm ofawareness, as discussed inBird.
has not alleged that prevention of a pressure ulcer necessitates treatment so obvious that
the could understand the lack of treatment. Thus, Ms. Bolen‘s
average lay-person
because the
bystander theory of negligent infliction of emotional distress is inappropriate,
facts are insufficient to demonstrate Ms. Bolen could have been
alleged
contemporaneously aware of the alleged negligence at the time of its occurrence.
V.
CONCLUSION
Plaintiffs' Cause of Action for Negligent lniction of Emotional Distress does not
state facts sufficient to constitute a cause of action because Suzanne Bolen was not
present at the scene of the injury-producing event at the time it occurred and then aware
that it was injury to Patsy Newton. Specifically, Plaintiffs failed to allege facts to
causing
support an inference that Suzanne Bolen was contemporaneously aware of the
01304166.WPD 7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS
injury-producing event. Thus, Defendant Enloe Medical Center respectfully requests this
Court issue judgment on the pleadings.
Dated: December 1, 2020
SCHUERING ZIMMERMAN & DOYLE, LLP
By?ROBERT ”WW-—
H. ZIMMERMAN
for Defendant EN LOE MEDICAL
CENTE
Attornegs
0 l 304 l 66.WPD 8
MEMORANDUM OF POINTS AND AUTHORITIES lN SUPPORT OF DEFENDANT
ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS
- Civil
Proof of Service by Electronic Transmission
[Code of Civ. Proc. §§ 1010.6, 101 1, 1013, 1013a, 2015.5; Cal. Rules of Court, rules
10.503, 2.100-2.1 19, 2.251]
I,Concha M. Leon, declare:
At the time of service, lwas over 18 years of age and not a party to this action. My
business address is: 400 University Avenue, Sacramento, California 95825.
On December 4, 2020, I served the following documents:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
ENLOE MEDICAL CENTER‘S MOTION FOR JUDGMENT ON THE PLEADINGS
By e-mail or electronic transmission: Based on a court order or an agreement of
the parties to accept service by e—mail or electronic transmission, I caused the documents
e-mail addresses listed below. did not receive, within
to be sent to the persons at the I
a reasonable time after the transmission, any electronic message or other indication that
the transmission was unsuccessful.
Attorney Representing Phone/Fax/E-Mail
Sean R. Laird Plaintiffs PHONE: 916-441-1636
The Law Firm of Sean R. Laird FAX: 916—760-9002
805 16‘“ Street EMAIL:
Sacramento, CA 958 l 4 seanlairdlaw@gmail.com
Ideclare under penalty of perjury, under the laws of the State of California, that the
is true and correct, and that this declaration was executed on December 4,
foregoing
2020, at Sacramento, California.
Concha M.
1579-12195
Leon
%\
Preview
Suparhl' Cau bf Clnmll F Count! 0f Bum gUmr— ROBERT H. ZIMMERMAN, BAR N0. 84345 l SCHUERING ZIMMERMAN & DOYLE, LLP L 12/4/2020 400 University Avenue Sacramento, California 95825-6502 E (916) 567-0400 D Ki rFla .Clark FAX: 568-0400 Ev FILED Attorneys for Defendant ENLOE MEDICAL CENTER SUPERIOR COURT OF CALIFORNIA, COUNTY OF BU'I'I‘E PATSY NEWTON, individually; HAROLD NO. 20CV01091 NEWTON, individually; SUZANNE BOLDEN, individually, ASSIGNED TO JUDGE TAMARA L. MOSBARGER FOR ALL PURPOSES .J Plaintiffs, MEMORANDUM OF POINTS AND vs. AUTHORITIES IN SUPPORT OF DEFENDANT ENLOE MEDICAL ENLOE MEDICAL CENTER; and DOES l - CENTER'S MOTION FOR JUDGMENT 50, et al., ON THE PLEADINGS Defendants. Date: December10,2020 Time: 1:30 p.m. Dept: 1 Action Filed: May 29, 2020 Trial Date: December 14, 2020 INTRODUCTION Plaintiffs Patsy Newton, Harold Newton, and Suzanne Bolen, brought this action against defendant Enloe Medical Center alleging the following causes of action: (l) Elder Abuse; (2) Violation of the Patients' Bill of Rights; (3) Negligent lnfliction of Emotional Distress; and (4) Loss of Consortium. Enloe Medical Center seeks judgment on the pleadings as to Plaintiffs' cause of action for Negligent lniction of Emotional Distress. /// /// /// 0l304l66.WPD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS ll. FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs herein led their Complaint on May 29, 2020. (See Exhibit A to Declaration of Robert H. Zimmerman in Support of Motion for Judgment on the Pleadings (Zimmerman Declaration) at ll 2.) Counsel for Defendant ENLOE MEDICAL CENTER was retained on June 19, 2020. The Complaint alleges four causes of action, including: (l) Elder Abuse; (2) Negligent lniction of Emotional Distress; (3) Loss of Consortium; and (4) Violation of Patients' Bill of Rights. On August 13, 2020, the Court granted Plaintiffs' Motion for Trial Preference. On September 2, 2020, the Court set a jury trial date for December l4, 2020, over the objection of Defendant. According to the complaint, Ms. Newton was admitted to Enloe Medical Center on ll, 2019 after she fell and fractured her femur. (Complaint at 3:25-27.) September she remained at Enloe Medical Center, where she relied upon Following surgery, specialized 24-hour care. (Complaint at 4:1-2.) lt is alleged that Ms. Newton was at high risk for the development of life-threatening and pressure sores. (Complaint at 4:3-4.) lt is also alleged that Defendant debilitating Ms. Newton to monitor her condition, address her pain, turn and neglected by failing to monitor and treat her pressure sore, and failing to maintain her reposition her, failing overall and functioning. (Complaint at 4:11-14.) Ms. physical, mental, psychosocial Newton's wound allegedly advanced to a Stage 4 pressure wound. (Complaint at 4: l 4- 1 5.) Newton's Suzanne Bolen, discovered the wound after witnessing her daughter, mother not being turned and repositioned for multiple days. (Complaint 4: l 9-20.) Suzanne Bolen was allegedly horrified at what she observed and immediately knew her mother was injured and in grave jeopardy. (Complaint at 4:20-22.) She contends severely emotional injury from witnessing the neglect and abuse of Patsy Newton. Plaintiffs’ Second Cause ofAction alleging Negligent lnfliction of Emotional Distress does not state facts sufficient to constitute a cause of action. Defendant now moves for section 438(c)(l)(B)(2). judgment on the pleadings pursuant to Code of Civil Procedure 01304166.WPD 2 MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF DEFENDANT ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS Ill. APPLICABLE LAW Code of Civil Procedure section 438 provides, in pertinent part, as follows: (b)(1) A party may move for judgment on the pleadings. (c)(l) The motion provided for in this section may only be made on one of the following grounds: (B) lf the moving party is a defendant, that either of the following conditions exist: (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. (2) The motion provided for in this section may be made as to either of the following: (A) The entire complaint or cross-complaint or as to any of the causes of action stated therein. (f) The motion provided for in this section may be made only after one of the following conditions has occurred: (2) lf the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired. IV. ARGUMENT The law of negligent iniction of emotional distress in California is typically analyzed by reference to two theories of recovery: the "bystander" theory and the "direct victim" theory. (Burgess u. Superior Court (l 992) 2 Cal.4th 1064.) Bystander cases address the question of duty in circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another. (Id. at 1072.) ln the absence of physical injury 01304166.WPD 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS or impact to the plaintiff himself, damages for emotional distress should be recoverable 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. (Id. at 1073.) Plaintiffs‘ Complaint fails to state facts to support the second element of "bystander" theory of liability. A. Plaintiff Suzanne Bolen’s Allegations Claiming Negligent Infliction of Emotional Distress Fail to State Facts Sufficient to Constitute a Cause of Action Because Suzanne Bolen Was Not Present at the Scene of the Injury-Producin Event at the Time It Occurred and Then Aware That It Was Causing Injury to t e Victim Plaintiffs‘ Complaint fails to state a cause of action for negligent iniction of emotional distress under a "bystander" theory of liability, because Suzanne Bolen was not contemporaneously aware the alleged injury-producing event (delay and/or inaccurate was causing injury to Patsy Newton. Thus, Plaintiffs have failed to allege diagnosis) sufcient facts under the second Burgess element to constitute a cause of action for negligent infliction of emotional distress. ln Bird U. Saenz (2002) 28 Cal.4th 910, the California Supreme Court discussed the second element of the bystander theory of liability test articulated in Burgess. The Bird plaintiffs brought their mother to the hospital to undergo a surgical procedure. Later, they received a that their mother possibly had a stroke. They then witnessed their report mother in distress rushed numerous medical personnel to another room, at being by which point the plaintiffs received a report that their mother possibly suffered a nicked iniction of emotional distress, artery or vein. The plaintiffs sought to recover for negligent that they were all present at the scene of the injury-producing events, and that alleging aware that Defendants were injury-to their mother. Defendants they were all causing moved for on the ground that the plaintiffs had not observed the summary judgment, injury, and they only learned about it from others after it had occurred. (Id. at 914. ) On the California Supreme Court considered whether Defendants were appeal, entitled to for plaintiffs' failure to meet the second element of the summary judgment 01304166.WPD 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS Burgess test. The Court noted Wilks u. Hom (1 992) 2 Cal.App.4th 1264, 1272-1 273, wherein it was held that a plaintiff may recover based on an event perceived so long as the event is contemporaneously understood as causing injury to a close relative. Regarding the "contemporaneously understood" language, the Bird court concluded that the problem with dening the injury-producing event as defendants' failure to diagnose and treat the patient, is that the plaintiffs cannot meaningfully perceive the alleged failure. (Bird v. Saenz, supra, 28 Cal.4th at 91 7.) Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders. (Id.) The Bird court applied those principles to the facts before it, holding that even if the 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. (Id.) The Bird court also relied upon several other cases that are relevant here. For in Thing v. La Chusa (1989) 48 Cal.3d 644, the California Supreme Court held example, that the as a matter of law could not state a claim for negligent iniction of plaintiff emotional distress, because the plaintiff became aware of the injury to her child only after her it had occurred. Under those facts, the plaintiff could not satisfy the somebody told of been present at the scene of the injury-producing event, and requirement having been aware that it was injury to the victim. (Bird v. Saenz, supra, 28 having causing Cal.4th at 915-916.) The Bird court also relied upon Meighan v. Shore (1995) 34 Cal.App.4th 1025. ln the who was trained as a nurse, feared that her husband was Meighan, plaintiff wife, experiencing a heart attack and believed that it was not being treated appropriately in the emergency room. In fact he was suffering a heart attack, but initial test results were to the Saenz, 28 Cal.4th at contrary and physicians misdiagnosed the condition. (Bird v. supra, 919.) The Meighan court concluded the plaintiff had no viable claim for negligent iniction of emotional distress. Plaintiff‘s training as a nurse and belief that her husband was /// 01304166.WPD 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS suffering from a heart attack was not enough for the court to conclude that plaintiff understood and perceived the injury-causing event. (Id. at 919.) The Bird court also relied upon Wright v. City ofLos Angeles (l 990) 2 l 9 Cal.App.3d 318. In Wright, a relative who watched a paramedic conduct a cursory medical examination that failed to detect signs of sickle cell shock was permitted to sue for wrongful death, but not for negligent iniction of emotional distress. While the relative was present at the scene at the time the injury-producing event occurred, there was no evidence he was then aware that the decedent was being injured by the paramedic's negligent conduct. (Id. at 350.) Finally, the Bird court relied upon Golstein v. Superior Court (l 990) 223 Cal.App.3d 1415. ln Golstein, the parents of a child with curable cancer watched as he underwent radiation therapy. That the child had been lethally overexposed was not discovered until later, when he developed symptoms of radiation poisoning. While the plaintiffs had observed the procedure that was later determined to have been an injury-producing were not then aware the treatment was causing injury. ln denying the event, they cause of action, the Golstein court interpreted Thing to require that plaintiffs plaintiffs' experience a contemporaneous sensory awareness of the causal connection between the conduct and the (Golstein v. Superior Court, supra, 223 negligent resulting injury. Cal.App.3d at 1427-1428.) Here, Plaintiffs allege Enloe Medical Center staff neglected Ms. Newton by failing to monitor her condition, address her pain in order to be able to turn and reposition her, her overall physical, failing to monitor and treat her pressure sore, and failing to maintain demonstrated mental, and psychosocial functioning. (Complaint at 4:1 1-1 4.) However, as in Bird, Meighan, Golstein, Thing, and Wright, Plaintiffs’ Complaint does not properly allege that Suzanne Bolen was contemporaneously aware of the alleged negligence. As in Ms. Bolen allegedly spoke with staff members at Enloe Medical Meighan, Center their care in prevention of the pressure ulcer. However, Ms. Bolen's regarding to state a cause of action, as even the trained nurse alleged complaints are insufcient 01304166.wpp 6 MEMORANDUM OF POINTS AND AUTHORITIES lN SUPPORT OF DEFENDANT ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS who complained of the care and treatment as it was occurring in Meighan did not overcome demurrer. Suspicion alone is not enough to prove contemporaneous understanding of the injury-causing event. As in Wright, Ms. Bolen was allegedly present at the scene at the time the injury-producing event occurred. She was allegedly present during the staff‘s failure to turn, and failure to provide other interventions to prevent the pressure sore. However, she was not aware of the damaging effects of the alleged negligence until the occurrence of the pressure sore, AFTER the alleged negligence. Thus, Ms. Bolen was not then aware of the treatment provided by staff was causing injury while it was happening. As in Golstein, Ms. Bolen could not have been "then aware" the alleged negligence was causing the injury, because she does not have an expert level understanding of treatment and care related to the prevention of pressure sores. Ms. Bolen has not alleged an expertise in medicine that could have provided insight into the failure to provide adequate care. While she may have suspected an error, she could not have been sure. Further, Ms. Bolen cannot claim this is one of the "most obvious cases" where a Ms. Bolen misdiagnosis is within the bystanders' realm ofawareness, as discussed inBird. has not alleged that prevention of a pressure ulcer necessitates treatment so obvious that the could understand the lack of treatment. Thus, Ms. Bolen‘s average lay-person because the bystander theory of negligent infliction of emotional distress is inappropriate, facts are insufficient to demonstrate Ms. Bolen could have been alleged contemporaneously aware of the alleged negligence at the time of its occurrence. V. CONCLUSION Plaintiffs' Cause of Action for Negligent lniction of Emotional Distress does not state facts sufficient to constitute a cause of action because Suzanne Bolen was not present at the scene of the injury-producing event at the time it occurred and then aware that it was injury to Patsy Newton. Specifically, Plaintiffs failed to allege facts to causing support an inference that Suzanne Bolen was contemporaneously aware of the 01304166.WPD 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS injury-producing event. Thus, Defendant Enloe Medical Center respectfully requests this Court issue judgment on the pleadings. Dated: December 1, 2020 SCHUERING ZIMMERMAN & DOYLE, LLP By?ROBERT ”WW-— H. ZIMMERMAN for Defendant EN LOE MEDICAL CENTE Attornegs 0 l 304 l 66.WPD 8 MEMORANDUM OF POINTS AND AUTHORITIES lN SUPPORT OF DEFENDANT ENLOE MEDICAL CENTER'S MOTION FOR JUDGMENT ON THE PLEADINGS - Civil Proof of Service by Electronic Transmission [Code of Civ. Proc. §§ 1010.6, 101 1, 1013, 1013a, 2015.5; Cal. Rules of Court, rules 10.503, 2.100-2.1 19, 2.251] I,Concha M. Leon, declare: At the time of service, lwas over 18 years of age and not a party to this action. My business address is: 400 University Avenue, Sacramento, California 95825. On December 4, 2020, I served the following documents: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT ENLOE MEDICAL CENTER‘S MOTION FOR JUDGMENT ON THE PLEADINGS By e-mail or electronic transmission: Based on a court order or an agreement of the parties to accept service by e—mail or electronic transmission, I caused the documents e-mail addresses listed below. did not receive, within to be sent to the persons at the I a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Attorney Representing Phone/Fax/E-Mail Sean R. Laird Plaintiffs PHONE: 916-441-1636 The Law Firm of Sean R. Laird FAX: 916—760-9002 805 16‘“ Street EMAIL: Sacramento, CA 958 l 4 seanlairdlaw@gmail.com Ideclare under penalty of perjury, under the laws of the State of California, that the is true and correct, and that this declaration was executed on December 4, foregoing 2020, at Sacramento, California. Concha M. 1579-12195 Leon %\