In Thing v. La Chusa (1989) 48 Cal.3d 644, 667–68 (Thing), the California Supreme Court established three requirements that a plaintiff must satisfy to recover on a claim for negligent infliction of emotional distress to a bystander: (1) the plaintiff must be closely related to the injury victim; (2) the plaintiff must have been present at the scene of the injury-producing event at the time it occurred and then aware that it was causing injury to the victim; and (3) as a result, the plaintiff must have suffered serious emotional distress.
In a recent case, two sisters watched as their mom, after surgery was completed, choked to death due to the surgery. The hospital argued that the sisters did not know that their mom was choking because of the doctor’s malpractice. Since they didn’t know the cause of the choking, they shouldn’t be able to recover for negligent infliction of emotional distress. In California, this is a valid defense because it’s true, the sisters did not, and could not know about the negligence that caused their mom to pass away.
That’s not where the analysis stops. In this case, the evidence showed that the plaintiffs were present when Knox, their mother, had difficulty breathing following thyroid surgery. They observed inadequate efforts to assist her breathing, and called for help from the respiratory therapist, directing him at one point to suction her throat. They also directed hospital staff to call for the surgeon to return to Knox’s bedside to treat her breathing problems. These facts could be properly considered by the jury to demonstrate that the plaintiffs were contemporaneously aware of Knox’s injury and the inadequate treatment provided her by defendants.
The slow response time is key here, that’s the negligence the sisters were aware of which allowed them to sue and win against the hospital. This case was affirmed by the California Court of Appeals. You can read more about it here.