Families are pivotal in helping patients recover. They advocate for their loved ones. They give encouragement to rehabilitate. They provide reasons to push harder to live. What happens when a patient deteriorates in front of the family and a code is called? Sometimes the family is ushered out of the room. Sometimes they are pushed to the side – allowed to stay as long as they do not get in the way.


A recent California case suggests that if close family members witness negligence in implementing a code – or calling a code too late – not only can the patient sue, so can the family.


In Keys v. Alta Bates Summit Medical Center, 2015 WL 1346310, the patient underwent thyroid surgery. When the patient was transferred from the recovery room to the floor, the nurse noticed “noisy” breathing- presumably stridor. One minute later, this nurse called the hospital’s rapid assessment team. They arrived at bedside 2 minutes later. There, the respiratory therapist suctioned secretions from the mouth. The surgeon arrived at bedside a few minutes later, repositioned the patient’s head, and again suctioned her mouth. He believed the patient had a growing hematoma, and started removing bandages and sutures at bedside. His plan was to take the pressure off the trachea.


Unfortunately, the patient stopped breathing and a code was called. The patient developed anoxic encephalopathy and died about a month later. The patient and family sued. The plaintiffs settled their claims against the surgeon prior to trial. The hospital was left as the sole defendant. The jury awarded the family $1M on wrongful death claims and $375,000 for claims of negligent infliction of emotional distress (a number that was subsequently reduced to $220,000).


What is negligent infliction of emotional distress? To prevail, the plaintiff must prove that he (a) was closely related to the injury victim; (b) was present at the scene of the injury-producing event as it happened and was aware it was causing injury to the victim; and (c) suffered severe emotional distress.


Being present at a code-blue might on the surface satisfy each of these requirements. But, the court asks for more. The bystander must actually witness the negligence. In this case, it was not argued that the growing neck hematoma was the result of negligence. Bleeding is understood to be a risk of thyroid surgery. What was argued was that remedial action was not taken quickly enough; that delay was negligent; and that negligence was witnessed by family members.


What would not qualify for negligent infliction of emotional distress? If the surgeon had committed negligence in the operating room and the patient coded but was timely resuscitated – even if the outcome was poor – that would not be negligent infliction of emotional distress. The key distinction is whether the bystander witnessed the actual negligence, not the outcome of negligence.


By analogy, imagine that a family is walking on the sidewalk and a car jumps the curb and hits the mother. The mother bleeds to death on the sidewalk. This event is witnessed by all other family members. This might qualify for negligent infliction of emotional distress… Now imagine that the mother was walking a block behind the family. A car jumps the curb and hits the mother. The family hears general commotion and runs back to the mother. The mother bleeds to death on the sidewalk. This probably does not qualify for negligent infliction of emotional distress….


In both scenarios the car’s driver was negligent. And the injured victim (or her estate) will be able to sue for negligence. But, in only one scenario will the bystanders be able to sue for negligent infliction of emotional distress….


Note, many states do not recognize a cause of action for negligent infliction of emotional distress….As the case above illustrates, California is an exception.


Food for thought next time you run a code.