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Walters v. Hobbs8/22/2001
emergency neonatal care and treatment including, but not limited to, resuscitation and eventual transfer to a hospital properly equipped to address her medical needs, all to her general damages in the amount of $500,000.00."
In their prayer for relief, plaintiffs sought a total of $1,000,000 in economic damages and $4,000,000 in non-economic damages for Cheyenne, $500,000 economic damages for Sherri and Kenny Walters, $500,000 in non-economic damages for Sherri, as well as an unspecified amount "for damages due to loss of earnings and services from minor Cheyenne L. Walters" for Sherri and Kenny Walters.
In May 1995--more than two years after the professional relationship had ended--Hobbs filed an ORCP 21 motion seeking, in pertinent part, to strike the above-quoted paragraph pertaining to Sherri's emotional distress from witnessing Cheyenne's birth on the ground that it was an attempt to plead a cause of action based upon infliction of emotional distress but that plaintiffs had failed to plead the required elements. Alternatively, Hobbs asserted that plaintiffs' claim for damages in that paragraph should be stricken because damages "for mental disturbance without accompanying physical injury are only available in situations involving intentional acts of a flagrant character or where there has been a serious invasion of the plaintiff's rights," citing Saechao v. Matsakoun, 78 Or App 340, 717 P2d 165 (1986). The trial court granted Hobbs's motion.
In August 1995, plaintiffs repleaded, adding to their specific allegations of negligence that Hobbs had failed to induce labor in a timely manner "prior to the time that fetal distress was present necessitating delivery by cesarean section rather than the planned upon vaginal delivery, thus, substantially increasing the risks to plaintiff Sherri Walters in light of her then existing cardiac condition and causing her to undergo general surgery that might have been avoided with proper care and monitoring[.]" Plaintiffs further alleged:
"That as a direct and proximate result of the defendants' negligence herein, plaintiff Sherri Walters has suffered direct physical injury and serious emotional distress as follows:
"A. From having to undergo a stress test in which fluid was dripped into her arm intravenously to stimulate contractions while nursing personnel observed the fetus' heartbeats to determine how it would cope with the stress of contractions;
"B. From having to undergo fetal monitoring in the hours prior to delivery of the fetus on February 15, 1993, during which time plaintiff observed decelerations of the baby's heartbeat causing grave concern and distress to the plaintiff for her own safety and well-being, and the safety and well-being of the fetus;
"C. By having to undergo major surgery involving an emergency cesarean section to deliver the fetus rather than the planned upon natural childbirth, the strong possibility existing that a cesarean section may have been unnecessary if the plaintiff had been properly monitored and labor induced prior to the time fetal distress was present thus allowing for a natural vaginal delivery;
"D. By being placed at serious risk in having to undergo general surgery even through plaintiff had been advised by her cardiologist to attempt to have the child naturally due to plaintiff's cardiac condition, the strong possibility existing that a cesarean section may have been unnecessary if the plaintiff had been properly monitored and labor induced prior to the time fetal distress was present thus allowing for a natural vaginal delivery;
"E. By having prolonged healing time and pain due to major surgery involving a cesarea
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