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Nash v. Mehrtash11/8/2002
derations announced in Thing (supra, 48 Cal.3d at p. 666) that arbitrary lines must sometimes be drawn to ensure a defendant's liability will be proportionate to fault, compel the unfortunate conclusion Nash's claim must fail.
2. Nash was not a direct victim.
Nash did not seek to amend the complaint as to him as a direct victim and so we need not address this prong of NEID. We need only comment that because Nash was the father and not the plaintiff with whom Dr. Mehrtash had a physician-patient relationship, as a matter of law, he was not a direct victim of any negligence on the physician's part. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1069, 1084.)
The trial court erred in granting Nash leave to amend his complaint where the proposed amended pleading cannot state a cause of action. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, ยง 1130, pp. 585-586.) Hence, the order allowing Nash leave to amend to state a cause of action for NEID must be reversed, and the consequential judgment in favor of Nash must be reversed. Because of our holding here, we need not address Dr. Mehrtash's remaining contentions on appeal.
DISPOSITION
The judgment is reversed. Each party to bear his own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
KLEIN, P. J.
CROSKEY, J.
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