Burgess v. Superior Court
2 Cal. 4^th 1064 (1992)
Author: Jim

Facts: The plaintiff (P) underwent cesarean section during which she was under general anesthetic.  The doctor filed to protect the newborn baby and the baby suffered permanent brain damage due to deprivation of oxygen.  P brought charges against the doctor for negligent infliction of emotional distress by claiming that he breached his contract with her by not caring for the child properly.

Procedure: The trial court granted doctor’s motion for summary judgment.  The court of appeals reversed ruling that Thing v. LaChusa was not applicable here because P was the direct victim and not a bystander.

Issue: Was the P direct victim of the negligence?

Holding: Yes

Rationale: The distinction between bystander and direct victim cases is found in the source of the duty owed by the defendant to the plaintiff.  In the current case, it can be stated that the defendant had a duty of care toward both the plaintiff and her fetus. A mother and her fetus are physically and emotionally connected and any harm to the fetus can be considered a direct harm to the mother.  Therefore, the plaintiff in this case was a direct victim and not a bystander.  Therefore, the rigid rules of La Chusa are not applicable to this case. Affirmed.