BARBIE HUGGINS et al., Plaintiffs and Appellants, v. LONGS DRUG STORES CALIFORNIA, INC., Defendant and Respondent, 6 Cal. 4th 124

Opinion BAXTER, J. In filling a prescription for plaintiffs’ two-month-old son, defendant pharmacy wrote directions for five times the dosage ordered by the doctor. Plaintiffs seek to hold the pharmacy liable for their emotional distress from having unwittingly injured their son by administration of the overdose. As is typical in suits for negligent infliction of emotional distress involving family relationships and medical treatment (see Burgess v.

Superior Court (1992) 2 Cal.4th 1064, 1071 [9 Cal.Rptr.2d 615, 831 P.2d 1197] [hereafter Burgess]), plaintiffs initially urged both a “bystander” theory and a “direct victim” theory. The Court of Appeal rejected “bystander” recovery, but held that plaintiffs could state a claim as “direct victims” based on a limited duty of care owed by the pharmacist to persons other than the patient for whom the prescription is filled.

That duty arises, according to the Court of Appeal, when the pharmacist knows or should know that the patient is an infant or other person incapable of taking the medication without assistance, and that the medication is to be administered, or its administration supervised, by a parent or other closely related caregiver.

The supposed duty is violated if the pharmacist’s negligence in filling the prescription, coupled with the parent’s or caregiver’s administration of the medication pursuant to the pharmacist’s instructions, results in serious injury to the patient, and the parent or caregiver suffers emotional distress on learning that his or her own act directly caused the patient’s injury. The parent or caregiver is thereby deemed entitled to damages as a “direct victim” of the pharmacist’s negligence. We disagree, and reverse the judgment of the Court of Appeal.

Factual and Procedural Background Plaintiffs Barbie Huggins and Robert Huggins (plaintiffs) filed a complaint against Longs Drug Stores California, Inc. (defendant) and its agents (named as Doe defendants) containing the following allegations in all four of its causes of action: Plaintiffs are the parents of Kodee Huggins (Kodee), bom August 14, 1989. On October 9, 1989, plaintiffs asked defendant’s pharmacist to fill a prescription for a medication, Ceclor, to be given to Kodee in stated amounts.

In filling the prescription, the pharmacist misstated the treating physician’s directions, thereby causing a severe overdosage and consequent injury to the minor, and further causing plaintiffs to suffer emotional distress and consequent damages. The first cause of action of the complaint is for negligence, and the second cause of action asserts a claim (which plaintiffs have not pursued and therefore waive) for intentional infliction of emotional distress. A third cause of action appears to be based on a “direct victim” theory of negligently caused emotional distress.

It alleges that the pharmacist’s conduct breached defendant’s duties arising out of “the customer/pharmacist/pharmacy and other similar relationship between plaintiffs and defendants.” The fourth and final cause of action seeks recovery for negligently caused emotional distress on a “bystander” theory, alleging that plaintiffs suffered emotional distress from observing Kodee’s crying and distress during and after administration of the erroneous overdose. Based on the complaint and deposition testimony, defendant moved for

summary judgment or

summary adjudication of issues, seeking a ruling that plaintiffs have failed to establish the elements of a cause of action for negligent infliction of emotional distress. The following facts, which appear in the exhibits to the motion and to plaintiffs’ opposition, are essentially undisputed: On October 9, 1989, a doctor who was treating Kodee for an ear infection issued a prescription for Ceclor, to be administered every eight hours in doses of “2.5 cc’s,” which is equivalent to one-half teaspoon. Mrs.

Huggins immediately had the prescription filled at defendant’s pharmacy, which wrote directions for administering the medication which called for doses of two and a half teaspoons, five times the amount prescribed by the doctor. Mrs. Huggins then took Kodee home and began giving him the medicine that evening, as directed by the pharmacist. She was unsure whether she, her husband, or the day-care provider gave Kodee the next dose the following morning. Robert Huggins saw his wife administer the medication but was unsure whether he also gave Kodee any of the prescribed dosages. That afternoon, when Mrs.

Huggins picked Kodee up from day care, she noticed that he was lethargic and unresponsive. Though she suspected that this condition was caused by the medication, she was only; moderately worried. In the late afternoon or early evening, she received a call from her mother reporting that another pharmacy, to which the prescription had been transferred, had discovered the mistake in the dosage. Mrs. Huggins thereupon became shocked, grieved, worried, and emotionally distressed. Robert Huggins became similarly distressed after being summoned home from work and told of the mistake.

In opposing defendant’s motion, plaintiffs asserted that they had established the elements of a cause of action for negligent infliction of emotional distress and, in the alternative, requested leave to amend their complaint to supply any missing element. They specifically offered to add an allegation that they themselves administered the overdose, as instructed by defendant, and were injured by the realization that they had done so. Defendant replied that such an amendment would not enable the alleged cause of action to survive

summary adjudication. Without ruling on plaintiffs’ request for leave to amend the complaint, the trial court ordered

summary judgment for defendant on the grounds that (1) plaintiffs could not recover as bystanders to Kodee’s injury, for lack of a contemporaneous connection between the negligent act and their emotional distress, and (2) plaintiffs could not recover as direct victims because defendant’s duty of care was owed only to the child.

On plaintiffs’ appeal, the Court of Appeal upheld the trial court’s rejection of plaintiffs’ “bystander” claim for emotional distress resulting from their observation of the injury to Kodee from the overdose, but reversed the trial court’s rejection of plaintiffs’ claim to recovery as “direct victims.” The court theorized that when a pharmacist knows, or should know, that a prescription is for an infant or other helpless patient, the pharmacist’s duty of care extends not only to the patient but also to the patient’s parent or other closely related caregiver who in fact administers the medication as prescribed.

Recovery for violation of that duty, however, was restricted by the court’s opinion to cases in which administration of the medication causes death or serious injury to the patient. Since plaintiffs have not sought review of the rejection of their “bystander” theory, we need only determine their right to recover as “direct victims” of defendant’s negligent conduct. Discussion Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply. The existence of a duty is a question of law. (Marlene F. v.

Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [257 Cal.Rptr. 98, 770 P.2d 278] [hereafter Marlene F.].) “The distinction between the ‘bystander’ and the ‘direct victim’ cases is found in the source of the duty owed by the defendant to the plaintiff.” (Burgess, supra, 2 Cal.4th 1064, 1072.) “Bystander” claims are typically based on breach of a duty owed to the public in general (Christensen v.

Superior Court (1991) 54 Cal.3d 868, 884 [2 Cal.Rptr.2d 79, 820 P.2d 181]), whereas a right to recover for emotional distress as a “direct victim” arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant’s preexisting relationship with the plaintiff (Burgess, supra, 2 Cal.4th at pp. 1073-1074; Marlene F., supra, 48 Cal.3d at p. 590).

The Court of Appeal concluded that a pharmacist automatically assumes a duty of care toward a patient’s closely related caregivers simply by filling a prescription with actual or constructive knowledge that the patient is an infant or is otherwise helpless. That conclusion comports neither with California case law nor with sound public policy. The “direct victim” label stems from Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.RAth 518] (Molien).

There, “we found that a hospital and a doctor owed a duty directly to the husband of a patient, who had been diagnosed incorrectly by the doctor as having syphilis and had been told to so advise her husband in order that he could receive testing and, if necessary, treatment. (Molien, supra, 27 Cal.3d at p. 923.) We reasoned that the risk of harm to the husband was reasonably foreseeable and that the ‘alleged tortious conduct of the defendant was directed to him as well as to his wife.’ (Id. at pp. 922-923.) Under such circumstances we deemed the husband to be a ‘direct victim’ and found the criteria for bystander recovery not to be controlling. (Id. at p. 923.)” (Burgess, supra, 2 Cal.4th 1064, 1073-1074.) Since Molien was decided, we have made clear that despite its broad references to foreseeability, the opinion should be read as basing the defendant doctor’s direct-victim liability only upon his assumption of a direct duty toward the husband. (Burgess, supra, 2 CalAth at p. 1074; see Thing v.

La Chusa, supra, 48 Cal.3d 644, 679 (dis. opn. of Mosk, J.).) That duty did not arise simply because the doctor’s misdiagnosis “necessarily involved him directly” as Justice Mosk’s dissent suggests, but because the doctor directed his patient, the wife, to advise the plaintiff husband of the diagnosis. That limitation on direct-victim liability under Molien was confirmed in Ochoa v.

Superior Court (1985) 39 Cal.3d 159 [216 Cal.Rptr. 661, 703 P.2d 1], where plaintiffs alleged emotional distress from observing the defendant juvenile authorities’ wrongful refusal to provide or allow direly needed medical care for plaintiffs’ son, who subsequently died from the consequent neglect. Though upholding plaintiffs’ claim for recovery as bystanders, we rejected their claim as direct victims under Molien.

We explained that “[i]n Molien defendant’s misdiagnosis was, by its very nature[,] directed at both the wife and the husband,” whereas “the defendants’ negligence in the instant case was directed primarily at the decedent, with Mrs. Ochoa looking on as a helpless bystander. . . .

While she was a foreseeable plaintiff to whom the defendants owed a duty of care . . . , the duty owed was owed to her as a percipient witness, not as a direct victim of negligence.” (Id. at pp. 172-173.) More recently we have allowed recovery for parental emotional distress from professional mistreatment of a child by health care providers who were concurrently treating the parents as patients. In Marlene F., supra, 48 Cal.3d 583, the defendant psychotherapist was treating both the plaintiff mothers and their sons for intrafamily difficulties.

We held that because the plaintiffs were themselves the defendant’s patients, they could recover damages for emotional distress caused by the defendant’s sexual abuse of the sons. Similarly, in Burgess, supra, 4 Cal.4th 1064, we held that a mother could recover damages for emotional distress as the direct victim of medical malpractice that inflicted permanent brain injury upon her child through deprivation of oxygen during childbirth. Again, liability was based on the defendant’s physician-patient relationship with, and consequent duty of care toward, the mother as well as the child.

When the plaintiff is not the defendant’s patient, however, “[c]ourts have not extended the Molien direct-victim cause of action to emotional distress which is derived solely from a reaction to another’s injury” (Martinez v. County of Los Angeles (1986) 186 Cal.App.3d 884, 890 [231 Cal.Rptr. 96]). Thus, in Burgess, supra, although we upheld the mother’s claim as a direct victim of the defendant’s negligence that resulted in childbirth injuries to her son, we noted “that the physician-patient relationship critical to a mother’s cause of action is almost always absent in a father’s claim.

It, therefore, appears that a father must meet the criteria [for bystander recovery] set forth in Thing [v. La Chusa], supra, 48 Cal.3d 644, if he is to state a viable claim.” (2 Cal.4th at p. 1078, fn. 8.) That principle was applied in Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149 [276 Cal.Rptr. 470], where a father was denied recovery for emotional distress as the alleged direct victim of a psychotherapist whom the father had retained to treat his son and who facilitated and concealed the mother’s removal of the son to London, England.

The Court of Appeal held that only the son was the therapist’s patient, even though the plaintiff father had participated in counselling sessions with the therapist in an effort to improve the son’s relations with the parents. (Id. at pp. 161-163.) The court also held that “the simple existence of a contract between a parent and a medical caregiver to provide medical treatment for a child is not in itself sufficient to impose on the caregiver a duty of care owed to the parent.” (Id. at p. 168.) It was only because the parents in Burgess, supra, 2 Cal.4th 1064, and Marlene F., supra, 48 Cal.3d 583, qualified as the patients of the defendant caregivers that they could recover for emotional distress as the defendants’ direct victims.

To put it another way, the duty assumed by the defendant physician included provision of care to the plaintiffs themselves. (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397-398 [11 Cal.Rptr. 51, 834 P.2d 745]; Goodman v. Kennedy (1976) 18 Cal.3d 335, 342-344 [134 Cal.Rptr. 375, 556 P.2d 737]; Biakanja v. Irving (1958) 49 Cal.2d 647 [320 P.2d 16, 65 A.L.R.2d 1358].) Here, the end and aim of the prescription dispensed by defendant was to provide medical treatment for plaintiffs’ infant son, Kodee. He, not plaintiffs, was the only patient being served by the transaction.

There is no material distinction between the professional duties of pharmacists and the duties of other health care providers that allows the parent of a child patient for whom a prescription is negligently filled to recover from the pharmacist as a direct victim. The Legislature has declared the practice of pharmacy to be “a dynamic patient-oriented health service.” (Bus. & Prof. Code, § 4046, subd. (b).) The pharmacist must not only select, measure, and label the prescribed medication in accordance with the doctor’s orders but also must be alert to errors or problems and bring them to the doctor’s attention.

Pharmacists also spend substantial amounts of time advising patients about the proper use of a prescribed drug and its possible side effects or interaction with other medications. (See Murphy v. E. R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672, 686, 687, 695-697 [221 Cal.Rptr. 447, 710 P.2d 247]; Bus. & Prof. Code, § 4047.5 [labeling requirements]; Cal.

Code Regs, tit. 16, former § 1707.2 [duty to consult with patient].) Nothing in those duties imposes any legal responsibility upon pharmacists for the emotional well-being of the patient’s parents, even if the pharmacist knows the patient is an infant and that the parents will be administering the medication. Recent amendments to the regulations, added after defendant filled the prescription for Kodee, provide that the pharmacist must provide oral consultation about the prescription drug to “[the] patient or the patient’s agent” (Cal. Code Regs., tit. 16, § 1707.2; italics added).

The obvious purpose of providing for consultation with a patient’s agent has nothing to do with the agent’s personal welfare; the purpose is simply to assure that the pharmacist’s advice is put to good use for the benefit of the patient even in situations in which the patient would be unable to understand the advice. Plaintiffs seek to differentiate their claims from those of other parents who have contracted for an erring health care provider’s services on the ground that the medical care for which plaintiffs contracted (i.e., the filling of a prescription) necessarily involved their personal participation.

As the Court of Appeal put it, “[t]heir injuries are not merely derivative of Kodee’s injuries but flow from their role as participants in his treatment.” Plaintiffs were distressed not merely by observation of the injury but by their own roles as “the unwitting agent[s] of destruction.” The same comments would apply, however, to practically all outpatient care of an infant. A pediatrician typically prescribes routines of diet, hygiene, medication, etc., all of which must be administered by the parent or other home caregiver.

Even in the doctor’s office, the parent may be asked to physically restrain a child who is to receive a “shot” from the doctor or nurse. If a child is seriously injured by erroneous medical treatment caused by professional negligence, the parent is practically certain to suffer correspondingly serious emotional distress.

But even if it were deemed reasonably foreseeable to a pediatrician, or a pharmacist, that a parent’s realization of unwitting participation in the child’s injury would by itself be a source of significant emotional distress from guilt, anxiety, or otherwise, that foreseeability would not warrant our establishing a new right of recovery for intangible injury. (See Thing v. La Chusa, supra, 48 Cal.3d 644, 666-667; Bily v.

Arthur Young & Co., supra, 3 Cal.4th 370, 398-399.) The duty that the Court of Appeal would impose upon pharmacists would inevitably enlarge the potential liabilities of practically all providers of medical goods and services obtained by parents solely for the treatment of their children, or by other caregivers solely for the treatment of dependent family members. All those providers, unlike the providers of care to competent adult patients, would be exposed to new claims of emotional distress allegedly incurred in administering the prescribed medication or treatment to the patient.

That expansion of potential liability not only would increase medical malpractice insurance costs but also would tend to “inject undesirable self-protective reservations” impairing the provision of optimal care to the patient. (See Goodman v. Kennedy, supra, 18 Cal.3d 335, 344.) Because plaintiffs were not the patients for whom defendant dispensed the prescribed medication, they cannot recover as direct victims of defendant’s negligence. The trial court did not err in granting

summary judgment for defendant. The judgment of the Court of Appeal is reversed. Lucas, C. J., Panelli, J., Arabian, J., and George, J., concurred. Barbie Huggins also sued as guardian ad litem for Kodee. Kodee’s claim has been resolved by judicial arbitration and is not in issue here. The Court of Appeal recognized that the respective showings of the parties on the

summary judgment motion did not address the questions whether defendant’s pharmacist knew the prescription was for an infant, whether the infant suffered serious injury, or whether plaintiff Robert Huggins, as well as Mrs. Huggins, administered the erroneous prescription. In plaintiffs’ request for leave to amend the complaint, as part of their response to the motion for

summary judgment, plaintiffs acknowledged that the complaint lacked any allegation of who had administered the medication, and may also have omitted other material facts. Since the trial court granted

summary judgment without granting or denying leave to amend, the Court of Appeal’s reversal would, if left standing, entitle plaintiffs to renew their request for leave to amend on remand. (See Stalnaker v. Boeing Co. (1986) 186 Cal.App.3d 1291, 1302 [231 Cal.Rptr. 323].) The Court of Appeal rejected plaintiffs’ bystander theory for failure to meet the prerequisite that the plaintiff be “present at the scene of the injury-producing event at the time it occurs and [be] then aware that it is causing injury to the victim” (Thing v. La Chusa (1989) 48 Cal.3d 644, 668 [257 Cal.Rptr. 865, 771 P.2d 814]).

Even though plaintiffs, during administration of the medication, were concerned about Kodee’s sleepiness and suspected the medication as a cause, they were not aware that the dosage was excessive as a result of pharmaceutical negligence. After they learned that fact, they immediately ceased following defendant pharmacy’s directions, but by then the impact of defendant’s negligence upon Kodee had become complete.

The appellate court cited three post-Thing decisions denying recovery to patients’ close relatives who observed medical malpractice but failed to show a contemporaneous awareness that the victim was being injured by the negligent conduct: Breazeal v. Henry Mayo Newhall Memorial Hospital (1991) 234 Cal.App.3d 1329, 1342 [286 Cal.Rptr. 207]; Golstein v. Superior Court (1990) 223 Cal.App.3d 1415 [273 Cal.Rptr. 270]; and Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 349-350 [268 Cal.Rptr. 309].