Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In two diverse cases involving family rights, the California Supreme Court on Monday protected doctors from more third-party liability and denied greater protections for sexual molesters within non-traditional families. The court, in unanimous rulings, held that family members have no automatic third-party claim for negligent infliction of emotional distress in medical malpractice cases and that non-relatives have no right to probation in molestation cases despite long-standing familial relationships. In Bird v. Saenz, 02 C.D.O.S. 7331, Janice Bird and two sisters had sued Drs. Rolando Saenz and Scott Eisenkop and anesthesiologist David Fung, all of the San Fernando Valley’s West Hills Hospital, alleging emotional distress after watching their mother, Nita Bird, suffer after a surgery foul-up in 1994. During chemotherapy for ovarian cancer, doctors accidentally nicked an artery, causing Bird to swell up and turn purple — an event observed by at least two of her daughters as she was wheeled in and out of operating rooms. The woman died 14 months later, after which Janice Bird and her sisters sued under a bystander theory of emotional distress. Los Angeles County Superior Court Judge Anthony Mohr tossed the suit, but L.A.’s Second District Court of Appeal reversed, saying the women had presented a “triable issue of fact” because two of them were at the scene and were “aware of the injury to the victim.” On Monday, the high court disagreed, saying that the sisters had failed to meet an important prong of a test laid out by the high court in 1989′s Thing v. La Chusa, 48 Cal.3d 644. That ruling held, in part, that a bystander claim could not stand unless the plaintiffs are present at the scene of the event and were aware that it was causing an injury. The sisters were not present in the operating room at the time of the doctor’s mishap and had no true understanding of the seriousness of the problem, despite seeing their mother in the hallways, the Supreme Court said. “Even if 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,” Justice Kathryn Mickle Werdegar wrote for the court. “While they eventually became aware that one injury-producing event — the transected artery — had occurred, they had no basis for believing that another, subtler event was occurring in its wake.” The ruling remands the case to the Second District. In People v. Wutzke, 02 C.D.O.S. 7334, James Wutzke had argued that he shouldn’t have been sentenced to four concurrent 15-year-to-life prison terms for molesting four young girls because he met the definition of a “relative” under the terms of a state statute that allows probation for incestuous offenders. Wutzke was referring to Penal Code Section 1203.066(c)(1), a 1981 statute that authorizes probation for men or women found guilty of molesting children within their own families. Though seemingly irrational, the thought by legislators was that incestuous molesters are good candidates for rehabilitation and that imprisoning family members could do more harm to a child than not, even under the circumstances. Wutzke had argued that the four youngsters he molested were the granddaughters of his 20-year girlfriend, Ruth P., and that they called him “grandpa” or “Papa Jim.” Although he didn’t live with Ruth in her home in Alpine, 30 miles east of San Diego or her granddaughters, he claims he was considered family. San Diego County Superior Court Judge Wesley Mason III disagreed, but San Diego’s Fourth District overruled him, holding that Wutzke was the victims’ relative as a matter of law because they shared a “close quasi-familial relationship.” In reversing, the Supreme Court declared that the state Legislature could not have intended the words “relative” or “a member of the victim’s household who has lived in the victim’s household” to be construed so loosely. “It would be unreasonable,” Justice Marvin Baxter wrote, “to infer that a defendant who is not a ‘household member,’ because he has never lived with the victim, can nonetheless invoke the statute as a ‘relative,’ even though the pair also shares no blood or legal relationship.” If legislators had desired, he continued, they could have expressly included housemates or intimate partners. “No such language appears in the statute,” Baxter wrote. “Instead, Section 1203.066(c)(1) literally requires the defendant himself to be the victim’s ‘relative’ or to have shared the ‘victim’s household.’” By not being considered a relative, Wutzke can’t claim exemption from Penal Code Section 667.61, the so-called One Strike law that prohibits probation and mandates lengthy sentences for multiple sexual offenders even if, like Wutzke, they have no prior convictions. “To interpret ‘relative’ as a sizeable One Strike loophole benefiting almost any molester who betrays a position of trust is contrary to the purpose of both sentencing schemes,” he wrote. Interestingly, Baxter went to some lengths to explain why legislators felt incestuous molesters should be given a second chance because of concerns for the overall family, and how Monday’s ruling helps fulfill that purpose. “The Legislature could reasonably encourage young victims and other loved ones to break their silence concerning intrafamilial or household abuse by not requiring all offenders to be imprisoned for the rest of their natural lives,” he wrote. “The pressures that might otherwise cause a victim to shun disclosure — damage to the family name, loss of the family breadwinner and disruption in living arrangements and marital relationships — are either missing or muted where the defendant is neither a ‘relative’ nor a ‘household member.’” In a third ruling Monday, the Supreme Court unanimously upheld the death sentence of Maureen McDermott, one of only 12 women on California’s Death Row. She was sentenced in 1990 for the 1985 contract killing of boyfriend Stephen Eldridge at their Van Nuys home in order to collect on a $100,000 insurance policy. The case is People v. McDermott, 02 C.D.O.S. 7318.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.