CA: delay in cesarean results in stillborn: `bystander' dad has no emotional distress claim. (Medical Malpractice Cases).

CASE FACTS: Sharon Toliver was eight months pregnant when she awoke in the middle of the night with heavy vaginal bleeding. She was taken by ambulance to Memorial Hospital of Gardena at 3:53 a.m.. Richard Nash, the expectant father, followed the ambulance to the hospital. The patient was taken to the Labor and Delivery Unit. The patient was suffering from vaginal bleeding and abdominal cramping. She was connected to a fetal heart monitor. However, there was no fetal heart tone. The condition was considered to be a "dire emergency." Consequently, an on-call obstetrician, Dr. Ata Mehrtash, was contacted. Dr. Mehrtash did not leave for the hospital immediately. He was called four times before he left his home. During one of those calls, the expectant father pleaded with Dr. Mehrtash to come to the hospital because the expectant mother was bleeding and in pain, The nurse reminded Dr. Mehrtash to order pain medication for the patient during the third call. The fourth call was made at 4:30 a.m. by a nursing supervisor. The baby's father was in attendance throughout the delivery process but was not able to see the procedure itself because a screen and drapes were blocking his view. The expectant mother delivered a stillborn at approximately 6:15 a.m. An autopsy concluded that the baby died from "acute intrauterine asphyxia." The baby's parents brought suit against Dr. Mehrtash. The complaint alleged a cause of action for wrongful death. The baby's father moved to amend th6 complaint to allege a claim for negligent infliction of emotional distress (NIED) as a bystander. Dr. Mehrtash moved for a nonsuit on Mr. Nash's amended claim for NIED. A jury returned a verdict in favor of the plaintiffs finding Dr. Mehrtash 80 percent responsible and the hospital 20 percent responsible for the plaintiffs' damages. After Dr. Mehrtash's motion for a new trial was denied, he appealed.

COURT'S OPINION: The Court of Appeals of California, treating the judgment in favor of Mr. Nash only, reversed the judgment. The court held, inter alia, that Mr. Nash was not entitled to recovery on his NIED claim because he was not aware of any injury to the baby until "after" the injury producing event. "A plaintiff must be located near the scene of the accident, the shock must result from a direct emotional impact ... from the sensory and contemporaneous observance of the accident, the plaintiff and the victim must be closely related." The California Supreme Court has denied recovery to fathers of stillborns in similar settings because the fathers were not in a position to have contemporaneous observations. Nash v. Mehrtash, 2002 WL 31518158 P.2d--CA