## Facts

- A newborn, Kim Capelouto, was delivered at a hospital operated by Kaiser Foundation Hospitals and discharged with her mother several days later.
- Within days, Kim developed severe gastrointestinal illness, including vomiting, diarrhea, dehydration, cramps, and shock, sometimes requiring intravenous treatment.
- Kim was hospitalized six times during her first year of life; testing showed salmonella, and her physician concluded the infection was the primary cause of her symptoms.
- The infection was traced to the hospital; another obstetrical patient was an asymptomatic carrier and was identified as the initial source.
- Kim and her parents sued Kaiser for negligence; the parents also sought damages for their own mental and physical distress allegedly caused by the injury to their child.
- The trial court instructed the jury it could not award Kim damages for pain and suffering, but allowed other damage elements to be considered.
- The jury returned a defense verdict on the parents’ distress claim.
- The trial court granted a new trial as to Kim’s claim based on the erroneous damages instruction; Kaiser appealed that order, and the parents appealed the judgment on their claim, asserting the court should have given a broader bystander emotional-distress instruction.

## Issues

1. Whether an infant may recover damages for pain and suffering resulting from medical malpractice.
2. Whether pain and suffering in an infant may be proven by lay testimony and, in appropriate cases, inferred from the nature of the injury without requiring expert proof.
3. Whether the parents were entitled to an additional instruction permitting recovery for emotional distress based on witnessing their child’s suffering.

## Decision

- The order granting a new trial on Kim’s claim was affirmed.
- The court held an infant may recover pain-and-suffering damages on the same basis as an adult.
- The court held pain and suffering may be supported by lay testimony and, in some cases, inferred from the nature of the injury alone.
- The instruction barring the jury from awarding Kim pain-and-suffering damages was erroneous and prejudicial because evidence permitted an inference of substantial suffering.
- The judgment for defendants on the parents’ emotional-distress claim was affirmed.
- The court held the trial court adequately instructed the jury on the parents’ recoverable distress and properly refused the broader bystander emotional-distress instruction.

## Legal Principles

- An infant is not categorically barred from recovering non-economic damages for pain and suffering in a tort action, including medical malpractice.
- Pain-and-suffering damages may be proven through lay testimony describing observable symptoms, treatment, and circumstances; expert testimony may be used but is not required in every case.
- A fact-finder may infer pain and suffering from the nature of a serious injury or illness even when the injured plaintiff cannot describe the experience verbally.
- It is reversible error to instruct a jury that it may not award pain-and-suffering damages to an infant when the evidence would support such an award.
- Parental emotional-distress recovery is limited to the theory presented and properly instructed; a court need not give a broad bystander emotional-distress instruction where a narrower proximate-cause instruction is sufficient under the circumstances.

## Conclusion

The court affirmed a new trial for the infant plaintiff because a categorical bar on infant pain-and-suffering damages is improper where suffering may be shown by lay evidence or inferred from the injury, and it also affirmed the defense verdict on the parents’ distress claim because the given instruction adequately stated the allowable scope of recovery and the broader bystander instruction was not required.


Capelouto v. Kaiser Found. Hosps., 7 Cal. 3d 889, 500 P.2d 880 (Cal. 1972)