Christina Florez v. Saint Agnes Medical Center

[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said 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 serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

(Thing, supra, 48 Cal.3d at pp. 667–668, footnotes omitted, italics added.) Here, the demurring defendants contend that accepting the allegations of the SAC as true, as the court must for purposes of demurrer, plaintiffs fail to allege a contemporary awareness of an injury-producing event.

In Downey v. City of Riverside (2024) 16 Cal.5th 539 (Downey) the Supreme Court considered a factual situation where the plaintiff mother was giving directions to her daughter on a cell phone when her daughter was severely injured in a car crash. The plaintiff heard the accident and its aftermath but did not see what caused it. She sued individuals and various entities for negligent infliction of emotional distress. (Id. at p. 544.) The California Supreme Court addressed the following question: "What if the plaintiff is aware that injury has been inflicted on the victim, but not of the defendant's role in causing the injury?" (Ibid.)

The high court concluded: "For purposes of clearing the awareness threshold for emotional distress recovery, it is awareness of an event that is injuring the victim—not awareness of the defendant's role in causing the injury—that matters." (Ibid, italics added.)

The high court in Downey included the following summary of its decision in Ochoa v. Superior Court (1985) 39 Cal.3d 159 (Ochoa), in connection with the historical requirement of a shock to the plaintiff resulting from the sensory and contemporaneous observance of the incident:

We again considered this [sensory and contemporaneous observance] factor in [Ochoa]. There, the plaintiff was a mother whose teenage son had died of bilateral pneumonia while detained in juvenile hall. (Id. at pp. 162–163.) She had visited her son in the infirmary, where she saw him “going into convulsions and .. hallucinating” and heard him when he “complained of feeling very sick and of feeling pain.” (Id. at p. 163.) The mother repeatedly pleaded with the attending physician at the juvenile hall infirmary to allow her son to be seen by the family doctor, but her requests were denied. (Id. at pp. 163–164.)

When she visited him a second time and tried to roll him over on his side, he “yelled and screamed, complaining of excruciating pain in his chest area.” (Id. at p. 164.) During both visits, the mother “was distressed because of her son's condition and because it appeared that her child's medical needs were being ignored”; no doctor tended to her son while she was at the infirmary. (Ibid.) Disapproving cases limiting recovery to emotional distress caused by a “‘sudden and brief’” 17

injury-causing event, we held that the mother had stated a claim for negligent infliction of emotional distress. (Id. at p. 167; [citation].) We explained that “when there is observation of the defendant's conduct and the child's injury and contemporaneous awareness the defendant's conduct or lack thereof is causing harm to the child, recovery is permitted,” regardless of whether the injury was inflicted suddenly or across several days. (Ochoa, at p. 170.)

(Downey, supra, 16 Cal.5th at pp. 549–550, italics added.)

In Bird v. Saenz (2002) 28 Cal.4th 910, the California Supreme Court summarized its holding in Ochoa as permitting recovery when "the injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention." (Id. at pp. 919-920, citing Ochoa, supra, 39 Cal.3d at p. 170.) The court distinguished Ochoa by explaining the "failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson." (Bird v.

Saenz, supra, 28 Cal.4th at p. 920, italics added [although present in the hospital waiting room, plaintiffs had no sensory perception whatsoever that mother had been injured during surgery when a surgeon accidentally cut an artery, thus plaintiffs could not prove they were "present" when the injury-producing event occurred and were aware the event was causing mother's injury].) "Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders." (Id. at p. 917.)

As Dr. Narain correctly notes, even when a layperson observes a procedure, the presence of hidden errors fails to satisfy the requirement of a contemporaneous awareness of the injury-producing event:

Courts have not found a layperson's observation of medical procedures to satisfy the requirement of contemporary awareness of the injury-producing event. This is not to say that a layperson can never perceive medical negligence, or that one who does perceive it cannot assert a valid claim for NIED. To suggest an extreme example, a layperson who watched as a relative's sound limb was amputated by mistake might well have a valid claim for NIED against the surgeon. Such an accident, and its injury-causing effects, would not lie beyond the plaintiff's understanding awareness. But the same cannot be assumed of medical malpractice generally.

(Bird v. Saenz, supra, 28 Cal.4th at pp. 917–918, italics added.)

When this court sustained the demurrer to the plaintiffs' first amended complaint, It discussed the effect of plaintiff's allegations in paragraph 14, which remain unchanged in the SAC, as follows:

Here, plaintiffs allege and assert on opposition that the injury-producing event was defendants’ alleged failure to act following the measurement of the decedent’s low blood glucose level. In particular, the operative complaint alleges that according to defendants’ records, the decedent’s 18

blood glucose level was taken and measured on July 22, 2023 at 3:06 a.m. (FAC, ¶ 14.) Further, that “[p]laintiffs are informed and believe that no action was taken by any defendant herein, in response to this low glucose level.” (Ibid.) While it is possible as plaintiffs contend, that this injury- producing event could have been prolonged and continued until plaintiffs arrived at the ICU, nowhere do plaintiffs allege that they were aware [that] this injury-producing event had occurred. Plaintiffs do not allege that they were contemporaneously aware that the decedent’s blood glucose level was taken, that his blood glucose level was low, and that defendants acted negligently in failing to act on that discovery.

In fact, the operative complaint appears to suggest that plaintiffs did not become aware that the decedent’s blood glucose level was taken until a review of the defendants’ records. The knowledge of what had occurred must be derived from plaintiffs’ “own senses, and not from another’s recital of an uncontemporaneous event.” (Ochoa,[supra,] 39 Cal.3d [at p.] 169.)

(Minute Order, Nov. 4, 2025, pp. 14-15.)

Plaintiffs now contend, citing SAC, paragraph 15, they have filled in the gaps previously identified by the court because "they were told" about the usual discharge procedure. (Opp. to Nicola, p. 6:5.) When they asked, "how did this happen," medical staff "informed" them about what had taken place when they were not there. (Id., at p. 6:8-11, citing SAC, ¶¶ 29, 30.) The changes in bold plaintiffs added to paragraph 15, 29, and 30 do not change the gist of plaintiffs' allegations that they are complaining about events that were told to them, rather than events they contemporaneously observed through their own senses.1

In paragraph 30 of the SAC, Plaintiffs add the allegations in boldface type:

Each Plaintiff was present to, and did, witness their husband or father, on a ventilator, suffering from the effects and sequelae of critically low blood glucose level, to wit., Hypoglycemia, and as stated in the death certificate from Metabolic Acidosis. After discussion with medical staff, a physician who stated and asked, ‘he keeps coding, do you want us to continue the process or do you want him to go peacefully,’ they each participated in a joint decision, that further efforts by medical staff to keep their husband/father’s heart beating autonomously were futile, and made the gut-wrenching decision to terminate further efforts to revive him, thereby allowing him to pass-on without further suffering. Within a few minutes Not long thereafter, each then witnessed their husband/father die.

As Dr. Nicola explains in his reply, the amendments in boldface type fail to cure the pleading deficiencies:

1 Plaintiffs' reliance on Burgess, supra, 2 Cal.4th at p. 1075, is misplaced because the plaintiff in

Burgess was seeking recovery under the "direct victim" theory-- not the "bystander" theory. (Id. at p. 1078.)

The plaintiffs now argue that because the decedent’s death certificate states “hypoglycemia” as a cause of death, this condition was ongoing in the ICU, and thus the “injury-producing event,” which was witnessed by the plaintiffs. (Opposition, p. 3, lines 4-10.) However, hypoglycemia is not an “event;” it is the sequalae2 of an event, the alleged failure to respond to low blood glucose readings which allegedly occurred in the early morning, hours before any plaintiff arrived at the hospital. As such, the plaintiffs’ assertion is not consistent with the law which states that a later-acquired awareness or an impact derived from being told of an injury after-the-fact is not compensable. [Citations.]

(Nicola rpy., p. 3:1-8, citing inter alia, Hathaway v. Superior Court (1980) 112 Cal.App.3d 728 [holding parents could not recover for NIED as bystanders where they arrived on scene minutes after son was electrocuted and observed his resulting injuries]; Bird v. Saenz, supra, 28 Cal.4th at p. 920 [NIED recovery not permitted for misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect].)

Contrary to plaintiffs' assertions, the California Supreme Court in Downey confirmed that a "plaintiff must have suffered trauma from perceiving the injuryproducing event, itself rather than on viewing or learning about the injurious consequences of the defendant's conduct." (Downey, supra, 16 Cal.5th at p. 559, italics original, internal quotation marks and citations omitted.)

The parties agree an injury may be inflicted across several days; the injuryproducing event need not be sudden or brief. But a plaintiff must personally perceive the injury-producing event. Plaintiffs' allegations fail to demonstrate they witnessed the injury-producing event itself, rather than the injurious consequences of the defendants' alleged conduct. Therefore, the court sustains defendants' demurrers to the SAC's third cause of action for negligent infliction of emotional distress.

Leave to Amend

It is a well-settled rule that it is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the defect can be cured by amendment. The corollary is also true—when a complaint shows upon its face that there is no reasonable possibility to cure the defect, the court should deny leave to amend. It is the opposing party’s responsibility to request leave to amend, and to show how the pleading can be amended to cure its defects. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Thus, plaintiffs have the burden to demonstrate how the SAC might be amended.

Here Plaintiffs do not request leave to amend, nor do they suggest any facts they could allege to cure the pleading deficiencies. Plaintiffs have had three opportunities to plead a NIED cause of action. Accordingly, the court sustains the defendants' demurrers to the SAC's third NIED cause of action without leave to amend because Plaintiffs fail to establish a reasonable likelihood that they can cure the defects by amendment. This

“Sequela,” singular (sequelae, plural) means “an abnormal condition resulting from a 2

previous disease.” (https://www.dictionary.com/browse/sequela.) 20

does not leave plaintiffs without a remedy against the demurring defendants, in that their first cause of action for professional negligence remains unchallenged by demurrer.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 5/5/2026. (Judge’s initials) (Date)

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