Ochoa v. Superior Court

703 P.2d 1, 39 Cal. 3d 159, 216 Cal. Rptr. 661, 1985 Cal. LEXIS 302

• Court: California Supreme Court
• Decided: July 29, 1985
• Docket: S.F. 24637
• Status: Published

Opinions

Opinion

BROUSSARD, J.

Facts

This proceeding arises out of the tragic death of 13-year-old Rudy Ochoa on March 26, 1981. The petitioners (plaintiffs), Raul and Gloria Ochoa, are the surviving parents of Rudy Ochoa. The real parties in interest (defendants) are the County of Santa Clara and four alleged agents and employees of the county.¹ The complaint² states that on February 19, 1981, Rudy was admitted to the custody of Santa Clara County juvenile hall. On March 23, 1981, he became ill with an apparent cold. On March 23 and 24, he went to the infirmary for care and treatment. Rudy’s parents visited him on March 24. They saw that he was “extremely ill” and was holding his left side in an attempt to relieve severe pain. Rudy told his parents that he felt very sick and that he had been told that he had a “bug.” Gloria Ochoa thereafter spoke with juvenile hall authorities and expressed concern that her son was not receiving the necessary treatment. The juvenile hall authorities attempted to reassure her about her son’s condition. Both parents experienced extreme mental and emotional distress upon seeing their son’s illness and pain and continued to be distressed thereafter.

On March 25, 1981, Rudy was admitted to the juvenile hall infirmary. He was eventually diagnosed as having bilateral pneumonia and had a temperature of 105 degrees. When Mrs. Ochoa visited her son in the infirmary, he was very pale, and looked dehydrated. His skin was clammy and sweaty. He appeared to be going into convulsions and was hallucinating during most of his mother’s visit. When he was lucid he complained of feeling very sick and of feeling pain. Mrs. Ochoa was “very distressed and concerned” and requested that she be allowed to take her sick child to her own physician. She told the authorities that she would cooperate in any way necessary so long as Rudy could be seen by the family physician. Mrs. Ochoa was then seen by one of the defendants, Stanley Lourdeaux, M.D., and was told that her son only had the flu and that he should be left in the infirmary. Rudy repeatedly asked his mother to take him to a private doctor. After repeating her requests that her son be seen by the family doctor, Mrs. Ochoa was told that she would have to wait until the following morning to discuss the problem with the probation officer. Dr. Lourdeaux then advised Mrs. Ochoa that her son would be given a penicillin shot.³

Mrs. Ochoa then returned to her son’s bedside to find him complaining of excruciating pain under his left, rib cage. When she attempted to comfort him, his side was tender to touch. She spoke with the nurses on duty and requested that her son be released to her private doctor “even if handcuffed.” The nurses denied her request. Mrs. Ochoa gave the nurses her telephone number and asked that she be called immediately if Rudy got worse and told them that she wished to be kept informed of his condition.

After her conversation with the nurses, Mrs. Ochoa returned and began to apply cold compresses in order to bring his fever down. At one point she was told by infirmary personnel to leave. She did not comply with this request, however, and continued to attend to her child by applying cold water compresses and by attempting to reassure him. Rudy continuously asked her not to leave him. While she was with him, she tried to roll him over on his side. Rudy yelled and screamed, complaining of excruciating pain in his chest area, and asked her to summon the doctor and tell him about the pain. The doctor was called but did not examine Rudy while Mrs. Ochoa was present. Throughout this entire period the child was vomiting and unable to retain any fluids. He was also observed by infirmary personnel coughing up blood.

The authorities again insisted that Mrs. Ochoa leave her son. “[S]he bent down to kiss him and [he] clasped her tightly and pleaded that she [stay] because he was so sick.” She attempted to reassure Rudy, telling him that the doctor had assured her he would tend to him. Mrs. Ochoa was then required to leave her son’s room. She returned to Dr. Lourdeaux and again pleaded that her son be allowed to be treated by the family physician and removed from the facility for that purpose. During all of this Mrs. Ochoa “experienced extreme mental and emotional distress.” She was distressed because of her son’s condition and because it appeared that her child’s medical needs were being ignored. Mrs. Ochoa never again saw her son alive.

The complaint also alleges that Rudy Ochoa was seen by the attending physician, Dr. Lourdeaux, only once on Tuesday, March 24, 1981, and on only one occasion at approximately 10:30 a.m. on Wednesday, March 25, 1981. After this, no physician examined him until he died at approximately 1:05 a.m. on Thursday, March 26, 1981.

Finally, the complaint alleges that Rudy was never transferred to the intensive care unit of any hospital facility, that no X-rays were taken despite the repeated communications of pain and distress below the rib cage, particularly on the left side, and that no blood or urine tests were performed.

Procedural History

Plaintiffs’ complaint set forth nine causes of action. Defendants demurred and the trial court sustained the demurrers to counts five through nine without leave to amend. Plaintiffs then sought a writ of mandate to compel the court to set aside the order sustaining the defendants’ demurrers to the fifth, sixth, eighth and ninth causes of action.⁴

I

Plaintiffs first contend that they have stated a cause of action for negligent infliction of emotional distress under our decision in Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316).⁵ An examination of Dillon and subsequent cases compels the conclusion that plaintiffs have stated a cause of action for negligent infliction of emotional distress. ⁶

In Dillon we became the first American jurisdiction to hold that a parent who witnesses the negligent infliction of death or injury on her child may recover for the resulting emotional trauma and physical injury in cases where the parent does not fear imminent physical harm. In so doing we rejected the “hopeless artificiality” of the rule requiring that the plaintiff be fearful for his or her own personal safety in order to recover. The touchstone of our analysis in Dillon was foreseeability. “Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis.” (68 Cal.2d at p. 740.)

Dillon also provided guidelines to aid in ascertaining whether a cause of action was stated in a particular case. “In determining . . . whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

“The evaluation of these factors will indicate the degree of the defendant’s foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person’s injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case.” (Id., at pp. 740-741, italics in original.)

There is no question that Mrs. Ochoa has alleged sufficient facts to satisfy the first and last Dillon requirements. Plaintiff, the parent of the deceased, was present while her child suffered apparent injury at the hands of defendants.⁷

The primary issue before us is whether, in order to state a cause of action under Dillon, the child’s injury must have been the result of a brief and sudden occurrence viewed contemporaneously by the plaintiff. The issue did not arise in Dillon because the injury to the child was caused by an automobile accident. Many of the subsequent cases requiring an application of the Dillon factors have also involved situations similar to the Dillon case where there was a brief, sudden occurrence. (See, e.g., Hathaway v. Superior Court (1980) 112 Cal.App.3d 728 [169 Cal.Rptr. 435] [electrocution]; Parsons v. Superior Court (1978) 81 Cal.App.3d 506 [146 Cal.Rptr. 495, 5 A.L.R.4th 826] [car accident]; Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553 [145 Cal.Rptr. 657] [drowning]; Powers v. Sissoev (1974) 39 Cal.App.3d 865 [114 Cal.Rptr. 868] [car accident]; Archibald v. Braverman (1969) 275 Cal.App.2d 253 [79 Cal.Rptr. 723] [explosion].)

One case, Jansen v. Children’s Hospital Medical Center (1973) 31 Cal.App.3d 22 [106 Cal.Rptr. 883] has required that the child’s injury or death be the result of a sudden occurrence. In Jansen a mother sought damages for emotional trauma and physical injury caused by witnessing the pain-ridden deterioration and death of her daughter in the hospital. She later learned that her child’s death was due to the failure to diagnose a penetrating duodenal ulcer. The Jansen court denied recovery, concluding that Dillon “contemplates a sudden and brief event causing the child’s injury. . . . [T]he event causing injury to the child must itself be one which can be the subject of sensory perception.” (Jansen, supra, 31 Cal.App.3d at p. 24.) Since the failure to diagnose could not be discerned by a lay person contemporaneously with such failure, the court concluded that extending the Dillon rules to cover this situation would yield the potentially limitless liability which Dillon sought to avoid. Jansen was followed in Hair v. County of Monterey (1975) 45 Cal.App.3d 538 [119 Cal.Rptr. 639]. In Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573 [127 Cal.Rptr. 720], the court interpreted Jansen as requiring that “the plaintiff observe an act contemporaneously causing injury. . . . The Jansen restriction is related to the reason for the Dillon limitation. It recognizes that to avoid ‘potentially infinite liability’ [citation] Dillon draws its limitation in terms of a very close connection in time and geography between the negligent act and resulting injury.” (Id., at pp. 584-585; Parsons v. Superior Court, supra, 81 Cal.App.3d 506, 512.)

We implicitly approved of Jansen’s “sudden occurrence” requirement in Justus v. Atchison (1977) 19 Cal.3d 564 [139 Cal.Rptr. 97, 565 P.2d 122]. Justus involved wrongful death and Dillon causes' of action by fathers who had been present in the delivery room, and who had experienced distress when the fetuses were delivered still-born. We believed that Justus presented a closer case than Jansen because “each accident ... [in Justus] was a relatively sudden occurrence.” (Justus v. Atchison, supra, 19 Cal.3d 564, 584.) We nevertheless held that the fathers had failed to state a cause of action under Dillon because they had not sustained shock as a result of “‘sensory and contemporaneous observance of the accident.’” (Id., at p. 584, quoting Dillon, supra, 68 Cal.2d at p. 740.) While Justus implicitly approved the sudden occurrence requirement, the case essentially involved a situation where the fathers were unaware of a connection between the defendants’ conduct and the injury.

Our review of other cases allowing a cause of action for emotional distress under Dillon leads us to the conclusion that the “sudden occurrence” requirement is an unwarranted restriction on the Dillon guidelines. Such a restriction arbitrarily limits liability when there is a high degree of foreseeability of shock to the plaintiff and the shock flows from an abnormal event, and, as such, unduly frustrates the goal of compensation—the very purpose which the cause of action was meant to further.

The cases allowing recovery have done so by applying the Dillon criteria with some degree of flexibility and for that reason are instructive. In Krouse v. Graham (1977) 19 Cal.3d 59 [137 Cal.Rptr. 863, 562 P.2d 1022], for example, the plaintiff husband was sitting in his parked car while his wife removed groceries from the trunk. The defendant’s car approached plaintiff’s car at high speed, killed plaintiff’s wife and then struck plaintiff’s car. We held that the husband had stated a cause of action under Dillon despite the fact that he did not see his wife being struck by defendant’s car and did not immediately observe the effect of the collision on her. (Krouse v. Graham, supra, 19 Cal.3d at pp. 74-75.) We said that “Dillon . . . does not require a visual perception of the impact causing the death or injury. In the matter before us, although Benjamin did not see Elizabeth struck by defendant’s automobile, he fully perceived the fact that she had been so struck, for he knew her position an instant before the impact, observed defendant’s vehicle approach her at a high speed on a collision course, and realized that defendant’s car must have struck her. Clearly, under such circumstances Benjamin must be deemed a percipient witness to the impact causing Elizabeth’s catastrophic injuries.” (Id. at p. 76, italics in original.)

Similarly in Archibald v. Braverman, supra, 275 Cal.App.2d 253 (which we approved in Krouse) the Court of Appeal held that a mother had stated a cause of action under Dillon even though she did not actually observe the tortious event. In Archibald the mother came upon her child moments after he had been injured in an explosion. The court observed that “the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself,” and that therefore the plaintiff had met the contemporaneous observance requirement of Dillon. (Archibald v. Braverman, supra, 275 Cal.App.2d at p. 256.)

Using an approach similar to that in Archibald, the court in Nazaroff v. Superior Court, supra, 80 Cal.App.3d 553 held that a mother had stated a cause of action where she arrived on the scene in time to see her missing child being pulled out of a neighbor’s pool and to aid in efforts to resuscitate him. He died three days later. After reviewing a number of cases which applied the Dillon factors the court concluded: “On balance, and in the light of all of the criteria reviewed above, we must conclude that the record before the court demonstrates that there are triable issues of fact to carry to the jury as to whether the alleged physical harm to the mother resulted from an emotional shock proximately caused by the direct emotional impact from the contemporaneous observation of the immediate consequences of the defendants’ negligent act, which was the proximate cause of the injury and death of her son. [Citation omitted.] The shout from the pool area may have permitted her to reconstruct the scene, as well as did Mrs. Archibald and Mr. Krouse. Her knowledge of what had occurred was derived from her own senses, and not from another’s recital of an uncontemporaneous event.” (Nazaroff v. Superior Court, supra, at pp. 566-567, italics added.)

In Mobaldi v. Regents of University of California, supra, 55 Cal.App.3d 573, plaintiff brought her foster son to the hospital for tests relating to a congenital kidney defect. Plaintiff held the boy in her arms while doctors injected a glucose and dye solution into his arm intravenously. Unbeknownst to the plaintiff, one of the physicians mistakenly used a “drastically unsafe” dosage of the solution. The doctors then left the room to examine X-rays. While in his foster mother’s arms, the child began to breath peculiarly, became spastic, convulsant and finally comatose. Mobaldi held that plaintiff satisfied the Dillon requirements where she “perceive[d] by sight and hearing the physical injury to another in her presence caused by the defendant’s negligence, ...” (55 Cal.App.3d at p. 577.)

Mrs. Ochoa’s position in this case is similar to that of the plaintiffs in the above-discussed cases and factually distinguishable from that of the mother in Jansen. Here Mrs. Ochoa was aware of and observed conduct by the defendants which produced injury in her child. She was aware of the fact that her child was in need of immediate medical attention. To her knowledge the defendants had failed to provide the necessary care. As her complaint alleges, she “experienced extreme mental and emotional distress and concern for her son and for [sic] the apparent outrageous neglect of medical care while she was present.” Like the parents in both Nazaroff and Archibald, she was able to perceive, and suffered shock, from the connection between defendants’ conduct and her child’s injury. By contrast, in Jansen, the mother’s distress stemmed only from the sight of her child’s suffering. Any distress she may have suffered as a result of perceiving the impact of defendant’s conduct upon her child was the result of “learning of the accident from others after its occurrence.” (Dillon, supra, 68 Cal.2d at p. 741.) In this regard, the mother’s situation in Jansen was no different from that of any parent who witnesses the pain and suffering of his or her child due to illness or injury and is unaware that the defendant’s conduct is a contributing factor to the continued pain and suffering.

Although Jansen may be distinguished from the case before us on the ground that in Jansen the plaintiff did not perceive defendant’s tortious conduct, we by no means suggest—as did the court in Hair v. County of Monterey, supra, 45 Cal.App.3d 538, 543-544—that plaintiff must be aware of the tortious nature of defendant’s actions. As the court in Mobaldi observed, such a requirement would lead to the anomalous result that a mother who viewed her child being struck by a car could not recover because she did not realize that the driver was intoxicated. (Mobaldi, supra, 55 Cal.App.3d at p. 583.)

We are satisfied 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.

It is important to remember that the factors set forth in Dillon were merely guidelines to be used in assessing whether the plaintiff was a foreseeable victim of the defendant’s negligence. As we stated in Dillon: “We are not now called upon to decide whether¡ in the absence or reduced weight of some of the above factors, we would conclude that the accident and injury were not reasonably foreseeable and that therefore defendant owed no duty of due care to plaintiff. In future cases the courts will draw lines of demarcation upon facts more subtle than the compelling ones alleged in the complaint before us.” (Dillon, supra, 68 Cal.2d at p. 741.) It is clear that in the present case defendants had every reason to foresee that Mrs. Ochoa would be distressed by their conduct.

It has been suggested that plaintiffs should not get the benefit of the Dillon rule, because they were voluntarily present at a location where distressing incidents were likely to occur. In Justus we implied in dictum that another factor mitigating against the application of the Dillon rule to the plight of the fathers present in the delivery room was that they were voluntarily present in a place where it was extremely likely that they would witness distressing events. (19 Cal.3d 564.) Some courts have read this statement to imply that recovery by a plaintiff voluntarily at the scene of a traumatic event may be precluded. (See, e.g., Cortez v. Macias (1980) 110 Cal.App.3d 640, 650 [167 Cal.Rptr. 905]; Austin v. Regents of University of California (1979) 89 Cal.App.3d 354, 361 [152 Cal.Rptr. 420], Jefferson, J., dis.)⁸ Such a requirement however undercuts the very foundation upon which the Dillon case rested. We said in Dillon that a tortfeasor could be held liable for damages to a bystander parent because of the foreseeability that the parent of an endangered child would be “ ‘somewhere in the vicinity. ’ ” (Dillon, supra, 68 Cal.2d at p. 730, quoting Prosser, Law of Torts (3d ed. 1964) at p. 353.) A distinction between the involuntary and voluntary presence of the close relative of the injured or dead person thus appears to relieve the defendant of liability for the very risk which should have been foreseen. While in a proper case it may be said that a bystander assumed the risk of traumatic shock, we cannot say that in the ordinary course of events the voluntary or involuntary presence of the plaintiff should be a decisive factor in determining whether plaintiff has stated a Dillon cause of action. To the extent that Justus makes a contrary suggestion, it is disapproved.

The fear that a less than strict application of the Dillon factors will result in “infinite liability” should not prevent courts from allowing plaintiffs to go forward when their shock and trauma stems from their sensory perception of defendant’s conduct and their loved one’s injury, particularly where, as here, defendants could clearly foresee Mrs. Ochoa’s traumatized reaction. In Dillon defendant argued that an otherwise meritorious claim should be barred out of a fear that there would be an increase in suits as well as fraudulent claims. We repeat here our response to such a contention: “‘[We] should be sorry to adopt a rule which would bar all such claims on grounds of policy alone, and in order to prevent the possible success of unrighteous or groundless actions. Such a course involves the denial of redress in meritorious cases, and it necessarily implies a certain degree of distrust, which [we] do not share, in the capacity of legal tribunals to get at the truth in this class of claim.’” (Dillon, supra, 68 Cal.2d at p. 744, quoting Hambrook v. Stokes Bros. (1925) 1 K.B. 141, quoting Dulieu v. White and Sons (1901) 2 K.B. 669, 681, opn. by Kennedy, J.)

We therefore conclude that under the facts as alleged, Mrs. Ochoa has stated a cause of action for negligent infliction of emotional distress and that the fifth cause of action should be reinstated.

II

Plaintiffs also contend that they have stated a cause of action for negligent infliction of emotional distress because they were “direct victims” of defendant’s negligence within the meaning of our decision in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518]. In Molien this court held that a husband could state a cause of action for negligent infliction of emotional distress where his wife had been negligently misdiagnosed as having syphilis. We rejected plaintiff’s contention that although he was not present when the diagnosis was communicated to his wife, he was a “bystander” victim under Dillon saying that “. . . the significance of Dillon for the present action lies not in its delineation of guidelines fashioned for resolution of the precise issue then before us; rather, we apply its general principle of foreseeability to the facts at hand, much as we have done in other cases presenting complex questions of tort liability. [Citations omitted.]

“In the case at bar the risk of harm to plaintiff was reasonably foreseeable to defendants. It is easily predictable that an erroneous diagnosis of syphilis and its probable source would produce marital discord and resultant emotional distress to a married patient’s spouse; Dr. Kilbridge’s advice to Mrs. Molien to have her husband examined for the disease confirms that plaintiff was a foreseeable victim of the negligent diagnosis. Because the disease is normally transmitted only by sexual relations, it is rational to anticipate that both husband and wife would experience anxiety, suspicion, and hostility when confronted with what they had every reason to believe was reliable medical evidence of a particularly noxious infidelity.

“We thus agree with plaintiff that the alleged tortious conduct of defendant was directed to him as well as to his wife. ” (Molien, supra, 27 Cal.3d at p. 923, italics added.)

Plaintiffs here have not stated a cause of action as direct victims of defendants’ negligence. In Molien defendant’s misdiagnosis was, by its very nature directed at both the wife and the husband. The wife was asked to tell her husband of the diagnosis and the husband was required to submit to tests. By contrast, here the defendants’ negligence in the instant case was directed primarily at the decedent, with Mrs. Ochoa looking on as a helpless bystander as the tragedy of her son’s demise unfolded before her. While she was a foreseeable plaintiff to whom the defendants owed a duty of care pursuant to our holding in Dillon, the duty owed was owed to her as a percipient witness, not as a direct victim of negligence.

Ill

In the sixth cause of action plaintiff Gloria Ochoa incorporates by reference the facts previously set forth and alleges that the “callous and deliberate indifference” of defendants “to the serious medical and physical needs of decedent” violated federal and state constitutional prohibitions against cruel and unusual punishment.⁹ She further alleges that the facts state a cause of action cognizable under 42 United States Code section 1983.¹⁰

We note initially that the civil rights cause of action has been brought by Gloria Ochoa in her capacity as special administratrix of her deceased son’s estate. Although 42 United States Code section 1983 itself is silent on the question whether an action pursuant to its provisions survives the death of the victim of the alleged violations, 42 United States Code section 1988 provides that “in all cases where [the laws of the United States] . . . are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the state wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause. ...” (42 U.S.C. § 1988.) This provision has been interpreted to mean that since section 1983 is silent on the question of survival of actions, state law must be referred to in order to make that determination. (See Robertson v. Wegmann (1978) 436 U.S. 584, 588-590 [56 L.Ed.2d 554, 559-561, 98 S.Ct. 1991].)

Probate Code section 573 is the principal provision governing survival of actions in this state. Section 573 as amended in 1961 provides in relevant part that “. . . [n]o cause of action shall be lost by reason of the death of any person but may be maintained by or against his executor or administrator.” These provisions were meant to apply to “all causes of action heretofore or hereafter arising . . . .” (Deering’s Ann. Prob. Code, § 573 (1974 ed.) note at p. 327.) The 1961 amendment was meant to make clear that all claims, including those for injury to the person, survived the death of the victim or wrongdoer. (See 4 Witkin, Summary of Cal. Law (8th ed. 1974) §§ 14-15, pp. 2314-2315; Estate of Hoertkom (1979) 88 Cal.App.3d 461, 465 [151 Cal.Rptr. 806].) In the present case, the decedent’s claim is in the nature of a tort, and under section 573, such a claim survives his death and may be brought by the administrator of his estate. (4 Witkin, supra, at p. 2315.)

Turning to the allegations supporting the section 1983 action, we note that the complaint is ambiguous or silent as to the precise custodial status of Rudy Ochoa prior to his death. It is unclear whether he was a “pretrial detainee” or whether he had in fact received the juvenile equivalent of a trial. In general, the protections afforded by the Eighth Amendment do not attach unless the victim has been tried and sentenced for a crime. (See Ingraham v. Wright (1977) 430 U.S. 651, 671-672, fn. 40 [51 L.Ed.2d 711, 730, 97 S.Ct. 1401].) A distinction has usually been drawn between a pretrial detainee, whom the state lacks the power to punish, and a sentenced offender, whom the state may not punish in a cruel and unusual manner. (See Bell v. Wolfish (1979) 441 U.S. 520, 535-536 [60 L.Ed.2d 447, 465-466, 99 S.Ct. 1861]; Loe v. Armistead (4th Cir. 1978) 582 F.2d 1291, 1294.) A detainee awaiting trial is protected by the due process clause of the Fourteenth Amendment, rather than by the Eighth Amendment. (Ibid.)

The ambiguity is not fatal in the instant case, however, because “the due process rights of a [detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.” (Revere v. Massachusetts General Hospital (1983) 463 U.S. 239, 244 [77 L.Ed.2d 605, 611, 103 S.Ct. 2979, 2983].) Because we conclude that the facts, as alleged, show that defendants’ conduct violated the standards set forth for determining whether the rights of convicted prisoners have been violated, we need not determine in the present action the exact scope of the rights afforded pretrial detainees with respect to medical care.¹¹ Plaintiff should, however, be given leave to amend, if she so requests, to properly allege the status of her son at the time of his death.

Estelle v. Gamble (1976) 429 U.S. 97 [50 L.Ed.2d 251, 97 S.Ct. 285] set forth the standards applicable to a claim that the medical needs of a prisoner have been ignored. In that case the United States Supreme Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ . . . [citation omitted] proscribed by the Eighth Amendment.’’ (Estelle v. Gamble, supra, 429 U.S. at p. 104 [50 L.Ed.2d at p. 260].) The court went on to state, however, that not every claim of inadequate medical care rises to the level of cruel and unusual punishment. Specifically, “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” (Id., at p. 106 [50 L.Ed.2d at p. 261].)

The court concluded that under the facts there present the prisoner had failed to state a claim for relief. In Gamble the prisoner had been injured, had been checked for a hernia and returned to his cell. He experienced pain for which he was given medication and was examined by a doctor. The following day he was again examined by another doctor, was diagnosed as having back strain and received medication for his condition. On other occasions he received treatment and was seen by doctors when he complained of pain. The court concluded that it was quite apparent that the plaintiff had “received extensive medical care and that the doctors were not indifferent to his needs.” (Id., at p. 108, fn. 16 [50 L.Ed.2d at p. 262].)

Defendants do not dispute that Rudy Ochoa was suffering from a “serious medical need.” Rather, they contend that defendants’ conduct did not rise to the level of “deliberate indifference” contemplated by the court in Gamble. Pointing to the fact that Rudy was seen by doctors on at least two occasions and that he received a diagnosis, was placed in the infirmary and that penicillin was prescribed for him, defendants assert that plaintiffs are merely alleging negligence. Defendants rely on a group of cases which have denied relief to prisoners where allegations or evidence suggests that under the circumstances the treatment received was adequate, or if not adequate merely negligent.¹²

It has been recognized, however that inadequate medical treatment may, in some instances, constitute a violation of 42 United States Code section 1983. (Westlake v. Lucas (6th Cir. 1976) 537 F.2d 857, 860-861, fn. 5.) In Sturtz v. City of Philadelphia (E.D.Pa. 1982) 529 F.Supp. 434, for example, the plaintiff alleged that defendants acted “carelessly, recklessly and negligently” when they failed to remove sutures from his eye, neck and face. The court concluded that although plaintiff was alleging inadequate medical treatment, he had stated a cause of action under section 1983; “. . . where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments. Pinon v. Wisconsin, 368 F.Supp. 608, (E.D.Wis. 1973). See also Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972). In some cases, however, the medical attention rendered may be so woefully inadequate as to amount to no treatment at all, thereby rising to the level of a § 1983 claim. Westlake, 537 F.2d at p. 860, n. 5; Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970); Riley v. Rhay, 407 F.2d 496 (9th Cir. 1969); Stilner v. Rhay, 371 F.2d 420, 421 n. 3 (9th Cir.), cert. denied, 386 U.S. 997, 87 S.Ct. 1318, 18 L.Ed.2d 346 (1967). In this case, . . . plaintiff has adequately pleaded a set of facts which may evidence a deliberate indifference to serious medical needs which may entitle him to § 1983 relief.” (Id., at p. 438.)

Other cases have similarly recognized that “woefully inadequate” medical care may result in the infliction of cruel and unusual punishment. (See, e.g., Scitarelli v. Manson (D.Conn. 1978) 447 F.Supp. 279; Layne v. Vinzant (1st Cir. 1981) 657 F.2d 468, 474; Laaman v. Helgemoe (D.N.H. 1977) 437 F.Supp. 269.)

Accepting as we must, the truth of the allegations in the complaint, there is no question that the treatment received by Rudy Ochoa under the circumstances was “woefully inadequate.” Mrs. Ochoa brought her son’s symptoms to the attention of the defendants when she visited with him on March 24. When she visited him a second time Rudy was exhibiting alarming symptoms, including a soaring temperature, dehydration, vomiting, hallucinations, the beginnings of convulsions and severe pain on his left side. He was also observed vomiting blood. These conditions indicated, even to a layperson, that emergency measures were needed. Significantly, it was left to Mrs. Ochoa to make use of the facilities in order to care for her son. Although penicillin was prescribed, it is unclear that any was ever administered. Mrs. Ochoa’s requests for treatment for her son were met only with the observation that he had a “bug.” It is also alleged that no radiological, blood or urine tests were undertaken in order to diagnose Rudy’s condition.

Given the severity of the symptoms exhibited by the decedent as well as the lack of response by the defendants to his medical needs we conclude that Mrs. Ochoa has pleaded facts sufficient to state a cause of action under 42 United States Code section 1983.

Let a peremptory writ of mandate issue commanding the Superior Court of Santa Clara County to vacate its order in this action and to enter a new order consistent with the views expressed in this opinion.

Mosk, J., Kaus, J., Reynoso, J., and Girard, J.,

* concurred.

1 Contrary to the county’s assumption that it was no longer a defendant in this action, plaintiffs sought a writ of mandate directing the trial court to reverse its order sustaining the demurrers of the county as well as the individual defendants.

2 In testing the sufficiency of a complaint against a demurrer we are guided by the well-settled rule that “a general demurrer admits the truth of all material factual allegations in the complaint [citation]; that the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]; and that plaintiff need only plead facts showing that he may be entitled to some relief [citation].” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal.Rptr. 88, 468 P.2d 216].)

3 It is unclear whether the shot was ever given. It was not administered during the time that Mrs. Ochoa was with her son.

4 Defendants do not claim that the trial court’s order may be sustained on the basis of sovereign immunity. (See Gov. Code, § 845.6.)

5 Although plaintiffs assert that they have stated a cause of action for intentional infliction of emotional distress, they have presented no argument on the subject. Plaintiffs appear to assume that a cause of action for intentional infliction of emotional distress may be established on the same theory as that for negligent infliction of emotional distress. The two torts are entirely different. (See 4 Witkin, Summary of Cal. Law (8th ed. 1974) § 233 et seq. and § 548 et seq.) The negligence count is discussed in the text. An examination of the requirements for intentional infliction of emotional distress leads to the conclusion that plaintiffs have not alleged facts sufficient to state a cause of action for that tort.

A cause of action for intentional infliction of emotional distress must allege facts showing outrageous conduct which is intentional or reckless and which is outside the bounds of decency. It has been said in summarizing the cases discussing intentional infliction of emotional distress that “the rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” (Prosser & Keaton on Torts (5th ed. 1984) p. 60, fn. omitted, italics added.) (See, e.g., Fletcher v. Western National Life Insurance Company (1970) 10 Cal.App.3d 376 [89 Cal.Rptr. 78, 47 A.L.R.3d 286] [defendant maliciously employed tactics such as making false charges in order to compel the plaintiff to surrender policy or to disadvantageous^ settle policy]; Tate v. Canónica (1960) 180 Cal.App.2d 898 [5 Cal.Rptr. 28] [making threats and accusations for the purpose of publicly humiliating the plaintiff].) Here, although defendants conduct did cause the plaintiffs untold distress, it is evident that the defendants acted negligently rather than with the purpose of causing the plaintiffs emotional distress. Further, although the law appears to be moving toward allowing recovery where mental distress is caused when plaintiff witnesses conduct directed toward a third person, “thus far recovery is clearly limited to the most extreme cases of violent attack, where there is some especial likelihood of fright or shock.” (Prosser & Keeton, supra, at p. 66, fn. omitted.) Plaintiffs have abandoned their eighth cause of action—interference with parental rights.

6 The complaint reveals that Mr. Ochoa only visited his son once and that he was extremely distressed by what he saw. As we shall explain, such distress is actionable under Dillon. Presumably, any further distress suffered by him was not the result of what he saw, but rather the result of what was related to him by his wife after her subsequent visit with their son. Under Dillon such distress is not actionable. The discussion in the text focuses on the experiences of Mrs. Ochoa. The analysis, however, is applicable to Mr. Ochoa’s cause of action. It has been said that a distinction between distress caused by personal observation of the injury and by hearing of the tragedy from another is justified because compensation should be limited to abnormal life experiences which cause emotional distress. While receiving news that a loved one has been injured or has died may cause emotional distress, it is the type of experience for which in a general way one is prepared, an experience which is common. By contrast few persons are forced to witness the death or injury of a loved one or to suddenly come upon the scene without warning in situations where tortious conduct is involved. In the present case, for example, while it is common to visit a loved one in a hospital and to be distressed by the loved one’s pain and suffering, it is highly uncommon to witness the apparent neglect of the patient’s immediate medical needs by medical personnel. (See generally, Note, Limiting Liability for the Negligent Infliction of Emotional Distress: The “Bystander Recovery" Cases (1981) 54 So.Cal.L.Rev. 847.)

7 Defendants appear to suggest that Dillon only applies when plaintiffs witness the death of their relative. Dillon, however, speaks in terms of death or injury. Further, plaintiffs do not contend that they are entitled to recover because of the shock and trauma experienced upon learning of Rudy’s death. Rather, liability is posited on the shock and trauma which they experienced upon seeing their son’s medical needs being ignored by the defendants.

8 Commentators have also noted and criticized the voluntary/involuntary bystander distinction. (See, e.g., Nolan & Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos (1982) 33 Hastings L.J. 583, 597; Twerski, Seizing the Middle Ground Between Rules and Standards in Design Defect Litigation: Advancing Directed Verdict Practice in the Law of Torts (1982) 57 N.Y.U. L.Rev. 521, 541.)

9 Both the Eighth Amendment of the federal Constitution and article I, section 17 of the California Constitution prohibit the infliction of cruel and unusual punishment. The Eight Amendment provides: “Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Article I, section 17 provides: “Cruel or unusual punishment may not be inflicted or excessive fines imposed.”

10 Section 1983 provides in relevant part: “Every person, who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...”

California courts exercise concurrent jurisdiction over civil rights actions under section 1983. (See, Serrano v. Unruh (1982) 32 Cal.3d 621 [186 Cal.Rptr. 754, 652 P.2d 985]; Williams v. Horvath (1976) 16 Cal.3d 834 [129 Cal.Rptr. 453, 548 P.2d 1125].)

11 We note, however, that the United States Supreme Court has articulated at least two standards, which may be applicable, governing the state’s due process obligation to furnish medical care to individuals in its custody who have not been convicted of any crime. In Bell v. Wolfish, supra, which involved the conditions of confinement of pretrial detainees, the court stated: “The factors identified in [Kennedy v.] Mendoza-Martinez [(1963) 372 U.S. (9 L.Ed.2d 644, 83 S.Ct. 554)] provide useful guideposts. ... A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. See Flemming v. Nestor [(1960) 363 U.S. 603] at 613-617 [4 L.Ed.2d 1435, 80 S.Ct. 1367]. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’ Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 168-169, [9 L.Ed.2d 644, 83 S.Ct. 554]; see Flemming v. Nestor, supra, at 617, [4 L.Ed.2d 1435, 80 S.Ct. 1367], Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’” (Bell v. Wolfish [supra, 441 U.S. at pp. 538-539 (60 L.Ed.2d at p. 468)], fns. omitted.)

In Youngberg v. Romeo (1982) 457 U.S. 307 [73 L.Ed.2d 28, 102 S.Ct. 2452], which involved the due process rights of an involuntarily committed mentally retarded person, the court first noted that the standard articulated in Estelle v. Gamble [(1976) 426 U.S. 97 (50 L.Ed.2d 251, 97 S.Ct. 285)] for denial of medical care of convicted persons had been erroneously applied by the lower court. (Youngberg v. Romeo, supra, 457 U.S. 307, 312, fn. 11 [73 L.Ed.2d 28, 35].) The court concluded that the involuntarily committed person had a right to adequate food, shelter, clothing, and medical care and also to safe conditions, freedom from bodily restraint and minimally adequate care or reasonable training to ensure safety and freedom from undue restraint. Liability would be imposed “when the decision by the professional [regarding care of the committed person] is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” (Youngberg v. Romeo, supra, at p. 323 [73 L.Ed.2d at p. 42], fn. omitted.) Under either standard, the facts as alleged would constitute a cause of action under section 1983.

12 The cases relied upon by defendant are all clearly distinguishable from the instant case. In Hamilton v. Roth (3d Cir. 1980) 624 F.2d 1204 for example, the defendant doctor was unaware that the consultation he had ordered for plaintiff’s condition had never been arranged by prison officials. Upon learning of the delay the doctor immediately arranged for the consultation. Other cases have involved prisoners who did not cooperate in the prescribed course of treatment. (See, e.g., Bourgeois v. Hongisto (S.D.N.Y. 1980) 488 F.Supp. 304; Layne v. Vinzant (1st Cir. 1981) 657 F.2d 468.) In other cases the court examined the course of treatment given by medical personnel and found that it did not in any way deviate from standard treatment or was adequate given the nature of plaintiff’s condition. (See, Bass v. Sullivan (5th Cir. 1977) 550 F.2d 229; Alexander v. Robinson (E.D.Pa. 1979) 463 F.Supp. 1232; May v. Enomoto (9th Cir. 1980) 633 F.2d 164; Freeman v. Lockhart (8th Cir. 1977) 561 F.2d 728; Brown v. Beck (S.D.Ga. 1980) 481 F.Supp. 723.) In other cases there was a lack of evidence suggesting a serious or urgent medical need. (See, e.g., Sowell v. Israel (E.D.Wis. 1980) 500 F.Supp. 209; Brown v. McGowan (D.Colo. 1978) 445 F.Supp. 468; Hancock v. Unknown United States Marshall (8th Cir. 1978) 587 F.2d 377.) In one case even though the doctor had made an incorrect diagnosis he did so after a period of time and the court was not convinced that the doctor’s examination was merely cursory (see Wester v. Jones (4th Cir. 1977) 554 F.2d 1285). Finally, Campbell v. Sacred Heart Hospital (E.D.Pa. 1980) 496 F.Supp. 692 involved the failure to diagnose a very rare disease where the defendants had made more than a cursory attempt to do so and where the plaintiff had exhibited no alarming symptoms.

Assigned by the Chairperson of the Judicial Council.