As with claims for loss of consortium, counsel should carefully research applicable law to determine whether, for example, children may have a valid cause of action where a parent sustains a spinal cord injury, or conversely, whether the parent may maintain a cause of action where the child sustains the injury.

Bystander theories of negligent infliction of emotional distress should be pursued whenever the facts of a given case provides such a remedy. In the ongoing quest to limit the scope of who may recover, courts in some jurisdictions have imposed stringent guidelines as to who can recover for negligent infliction of emotional distress.

For example, the Supreme Court of California has established a three-part test, which must be satisfied in order for a plaintiff to state a cause of action for “bystander” negligent infliction of emotional distress:

• is closely related to the injury victim;
• is present at the scene of the injury – producing event at the time
  it occurs and is then aware that it is causing injury to the victim; and
• As a result suffers emotional distress beyond that which would be anticipated in the disinterested witness.

In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: [Thing v. La Chusa, (1989) 40 Cal.3d 644, 647, 257 Cal.Rptr. 865.]

Nonetheless, where a family member observed the injury-causing event (where required), an action for negligent infliction of emotional distress should be brought on behalf of the family member or bystander.