Facts : Matthew woke up with headache, earache and fever on the morning of February 12, 1983, and by evening he was having trouble breathing. Mary brought Matthew to the emergency room at Henry Mayo Newhall Memorial Hospital ( Mayo Hospital). When asked whether Matthew had a regular pediatrician, Mary answered that he did not, but Dr. Vashistha, a pediatrician on the hospital's staff and one of the respondents herein, had treated her younger son, John, for a minor ailment. She asked that Dr. Vashistha be called.

Dr. Vashistha, who was reached at a family gathering, came to the hospital, examined Matthew, and diagnosed epiglottis, an acute bacterial infection that results in swelling of the epiglottis and other throat structures. Such swelling can be sufficiently severe to block the breathing passages and cause death. Treatment for epiglottis involves the establishment of an artificial airway, either by means of an endotracheal tube inserted through the mouth or nose, or by means of a tracheotomy tube inserted through a hole in the neck.

After establishment of artificial airway, the patient's condition remains at least potentially critical until the infection is controlled by means of antibiotics, and the swelling is relieved. Until such time, the patient's life literally depends upon constant monitoring to assure that the airway remains in place and clear of mucous and other obstructions. The entire course of treatment ordinarily takes from three to five days, and may take as long as seven days.

Upon diagnosing Matthew's condition as epiglottis, Dr. Vashistha requested that an otolaryngologist, or ear, nose, and throat (ENT) specialist be called to the hospital to assist in Matthew's treatment. Dr. Haring, the second respondent herein, was called. Dr. Haring was a member of the Mayo Hospital's staff and was called to assist in emergencies on a semiregular basis, although he was not a member of its emergency panel.

At approximately 9 p.m., after Dr. Haring arrived at Mayo Hospital and completed his examination of the patient, Matthew was taken from the emergency room to the operating room. There, Dr. Dag, an anesthesiologist, inserted an endotracheal tube into Matthew's throat. Dr. Haring testified at trial that Matthew was breathing freely at this point. According to Dr. Rudolph Brutoco, who testified as an expert witness for Mary, the danger of Matthew dying from epiglottis was, at that point very small given the level of medical technology as of 1983. However, Dr. Brutoco also testified that Matthew's condition was at all times "volatile" and there was always a potential for "immediate demise."

Indeed, all of the medical witnesses expressed agreement with the proposition that Matthew's condition presented a continuing risk of sudden death. In granting the defendants' motion for nonsuit, the trial court expressed its view that the evidence established beyond dispute that the emergency was of a continuing nature.

Deciding to retain Matthew at Mayo Hospital, Dr. Haring performed a tracheotomy, assisted by Dr. Vashistha. After the tracheotomy, at approximately 9:55 p.m., Matthew was brought to the recovery room, accompanied by Dr. Dag, the anesthesiologist. In Dr. Dag's opinion, Matthew was in stable condition at this point. While Dr. Dag accompanied Matthew to the recovery room, Dr. Haring and Dr. Vashistha went to talk with Mary. Dr. Haring told her that the emergency was over, but Matthew was not yet out of the woods and would have to be watched very carefully.

After talking with Mary, Dr. Haring returned to the recovery room, where he discovered that Matthew's tracheotomy tube was out of position. He repositioned it, and to make sure it did not come out of position again, he supplemented or replaced the umbilical ties that had originally held the tube in place with sutures. He also ordered soft restraints placed on Matthew to prevent him from pulling the tube loose. He ordered chest X-rays to check for pneumothorax, or lung collapse. Finding none, he remained with Matthew until he felt the airway was secure and that he could do no more.

He then left the hospital approximately 10:30 p.m., after leaving written instructions that a spare tracheostomy tube and implements for inserting it be kept at Matthew's bedside and that he and Dr. Vashistha be called if the existing airway should become dislodged again. Dr. Vashistha's home was approximately a half mile from hospital, a 5-minute trip; Dr. Haring lived 10 to 15 miles from the hospital, a trip of 15 or 20 minutes. Dr. Vashistha left the hospital at approximately the same time, intending to meet his family at the place where they had been visiting, take them home, then return to attend to Matthew. Dr. Vashistha had electronic pager with him when he left, and he orally instructed Dr. Dag and Nurse Margrave to call him if even the slightest change occurred in Matthew's condition.

The recovery room nurse was also instructed to suction the tube regularly to keep it free of secretions which might obstruct breathing. In the course of performing this suctioning, the nurse suctioned a pink frothy sputum. The presence of pink frothy sputum indicates that a patient is suffering from pulmonary edema, or fluid in the lungs, a condition that impedes proper respiration. In addition, approximately 45 minutes after being brought to the recovery room, that is, approximately 10:45 p.m., Matthew became restless, a further indication that he was not receiving adequate oxygen.

Dr. Haring was called back to the hospital at approximately 11:15 or 11:30 p.m. Dr. Vashistha had already returned at approximately 11:20. Within a short time after Dr. Haring's arrival, it was determined that both Matthew's lungs were collapsed. In addition, his heartbeat slowed to a rate characteristic of a dying patient. Shortly thereafter, Matthew went into full cardiac arrest.

Emergency room physicians and the Mayo Hospital's "code blue" team were called, and cardiopulmonary resuscitation and medications were administered to stimulate heart action. In addition, a pediatric emergency team from Children's Hospital of Los Angeles was called at approximately 11:30 p.m., and arrived by means of the "Life-Flight" helicopter. By the time the life-flight team arrived at 12:30 a.m., however, Matthew was in a state of electromechanical dissociation, a state in which the heart is not pumping blood to the body. His eyes were dilated and fixed., and it was the opinion of John Koenig, M.D., a pediatric intensive care specialist who came on the Life-Flight helicopter, that he was brain dead. Nonetheless, Matthew was transported on life support to Children's Hospital, where a nuclear brain scan was performed. It confirmed brain death. Matthew was removed from the life support systems and pronounced dead at Children's Hospital the following afternoon.

Mary Breazel, Matthew's mother, sued Krishan Vashistha, M.D., and Roger Haring, M.D., for professional negligence and wrongful death and for negligent infliction of emotional distress. The trial court dismissed the suit and Mary appeals from this judgment.

Court Decision: Mary does not deny that the physicians initially came to Matthew's aid in good faith and in circumstances amounting to a life-threatening emergency. She contends, however, that (1) the emergency initially created by Matthew's illness ended after an artificial airway was placed in Matthew's throat, because Matthew's condition was stable at that point, and only maintenance activity was required to assure continuation of the stable condition; (2) the emergency was over after placement of the artificial airway because at that point Matthew could have been transferred to Children's Hospital of Los Angeles, where superior care for Matthew's condition was available; (3) a doctor-patient relationship came into existence when the defendant doctors elected not to transport Matthew to Children's Hospital but to assume responsibility for his care themselves; (4) Matthew's death was the result of negligence on the part of the defendant doctors, which occurred after the emergency ended and after the doctors established a physician-patient relationship with Matthew; and (5) the trial court improperly dismissed Mary's action for negligent infliction of emotional distress.

In the present case, the consequences of inaction were as grave, immediate, and certain as can be imagined when Matthew arrived at Mayo Hospital in respiratory distress and in danger that his breathing would become completely obstructed at any moment. At this point, a destructive chain of events was actually in motion. Immediate intervention was imperative to avert a presently impending calamity.

Mary contends, however, that the physicians are not entitled to Good Samaritan immunity after creation of the artificial airway, because Matthew's condition was sufficiently stable at that point that he could have been transferred to Children's Hospital of Los Angeles, an institution with a pediatric intensive care unit, which Mayo Hospital did not have, and with particular expertise in dealing with pediatric epiglottis, which the staff at Mayo Hospital did not have. In effect, Mary argues that a reasonable alternative to care by the defendants was reasonably available, and Matthew was in sufficiently stable condition for the alternative to be pursued. Therefore, the defendants were not at that point rendering emergency care in good faith within the meaning of the statute. Rather, by electing to retain Matthew at Mayo Hospital and care for him themselves, Mary contends the doctors established a doctor-patient relationship with him, and their further care of Matthew must consequently be judged under normal standards of professional care.

There is no support in the language of the Good Samaritan statutes for such a limitation on immunity provided by those statutes.

An emergency within the meaning of the Good Samaritan statutes exists when there is an urgent medical circumstance of so pressing a character that some kind of action must be taken. It would seem obvious that in determining whether a patient's condition constitutes such an emergency the trier of fact must consider the gravity, the certainty, and the immediacy of the consequences to be expected if no action is taken. However, beyond observing that these are the relevant considerations, the variety of situations that would qualify as emergencies under any reasonable set of criteria is too great to admit of anything approaching a bright line rule as to just how grave, how certain, and how immediate such consequences have to be.

In this case, we examine the scope and extent of the term "emergency care" as it is used in the Good Samaritan statute. A reasonable application of that statute requires us to conclude that an emergency entitling a responding physician to immunity thereunder will persist for as long as the patient reasonably requires urgent care both to treat the immediate threat to life or limb and to ensure that such threat has passed.

Applying such principle to the facts of this case, we find there was no substantial evidence that the emergency to which the defendant physicians initially responded had concluded at any time during the course of their treatment of Matthew, and that sections 2395 and 2396 therefore shield them from liability for any acts or omissions by them in rendering such treatment. We therefore affirm the judgment.

The encouragement provided by the statute to provide emergency care will be inevitably and greatly diminished if physicians know that, however urgently some care might be needed in any given situation, the availability of Good Samaritan immunity will depend upon whether the responding physician guesses correctly as to whether he or she is the best person reasonably available to provide that care. The statutory purpose would be seriously undermined if immunity were denied to physicians who provided care where care was plainly and urgently needed, merely because a jury could conclude with the benefit of hindsight that another physician would have provided superior care.

The defendants' immunity under the Good Samaritan statutes precludes liability for any civil damages as a result of their actions in rendering care to Matthew, including liability for emotional distress caused to Mary. In addition, the trial court correctly found that no evidence established that Mary witnessed an event that caused injury to Matthew or that she contemporaneously was aware that any such event was causing him injury.

Absent such evidence, a plaintiff cannot recover damages for negligent infliction of emotional distress.

Breazeal v. Henry Mayo Newhall Memorial Hospital, 234 Cal. App. 3d1329; 1991 Cal. App. 286 Cal. Rptr. 207 

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