I concur in the portion of the majority opinion addressing the “dual capacity doctrine,” but dissent from the remainder of the opinion. I would reverse the summary judgment to the extent it bars Baby Freytes’s survival action and the action for his wrongful death. In my view, the injury to Baby Freytes was not “derived” from any injury to his mother, and consequently does not fall within the ambit of the workers’ compensation remedy.
The majority acknowledges that when a child who visits his parent’s workplace is injured by the negligence of the employer, the child may maintain an action in tort unhampered by the restrictions of the workers’ compensation law. The majority goes on to acknowledge that at first glance “there should be no logical difference between these cases and those in which the child is injured in utero. The fetus remains a separate person who is not an employee, and retains its own right of action.” (Maj. opn., ante, pp. 1451-1452.) Nevertheless, the majority defies the logic it has instinctive*1456ly recognized in order to bring Baby Freytes’s injuries within the ambit of the workers’ compensation law. I believe the majority’s analysis is incorrect in its interpretation of the law and in its application of public policy.
As I understand it, the majority concludes that the workers’ compensation law bars any tort action based on the injuries to Baby Freytes because (1) those injuries were “derived” from a compensable injury to the employee mother; (2) this result is consistent with the purpose of the workers’ compensation law; and (3) the ramifications of a contrary position would be devastating to employers. (Maj. opn., ante, pp. 1453-1455.) In my view, none of these reasons justify the result reached by the majority.
The primary legal foundation supporting the majority position is the derivative injury doctrine articulated in Salin v. Pacific Gas & Electric Co. (1982) 136 Cal.App.3d 185 [185 Cal.Rptr. 899], Williams v. Schwartz (1976) 61 Cal.App.3d 628 [131 Cal.Rptr. 200], and other cases. This doctrine holds that a third party tort action is barred by the exclusive remedy provision of the workers’ compensation scheme if it is derived from and is dependent on a compensable injury to an employee. (Salin, supra, 136 Cal.App.3d at pp. 191-192; see Williams v. Schwartz, supra, 61 Cal.App.3d at p. 634.) Thus, the doctrine bars an action for loss of consortium based on work-related injuries to an employee spouse (Williams v. State Compensation Ins. Fund (1975) 50 Cal.App.3d 116, 123 [131 Cal.Rptr. 200]) and likewise bars an action under Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] when a wife suffers emotional distress after observing her husband’s work-related death or injury (Williams v. Schwartz, supra, 61 Cal.3d at pp. 631-634). As the majority notes, the rule has its “farthest extension” (maj. opn., ante, at p. 1452) in Salin v. Pacific Gas & Electric Co., where the court applied the doctrine to bar a wrongful death action brought by the legal representative of children killed by their father who had allegedly been driven insane by work-related stress. (136 Cal.App.3d at pp. 191-193.)
What is important to note about all of the cases which have applied this doctrine is that the injury to the third party would not—and could not— have existed but for the injury to the employee. Thus, in the cited cases the third party cause of action was derivative of the employee injury in the purest sense: It simply would not have existed in the absence of injury to the employee.
In the present case, the facts do not fit this pattern. Here, the nurse’s negligence caused an injury to Baby Freytes which was not dependent on or derived from any injury to the mother. In fact, there is evidence that any injury to Baby Freytes resulting from the nurse’s negligence preceded the *1457negligently caused injury to the mother.1 Consequently, since we must view the evidence in the light most favorable to appellants, I believe the derivative injury doctrine simply has no application here. In my view, there is no difference between this case and the hypothetical situation where a mother and child both simultaneously receive negligent treatment from a company nurse; although the employee mother would be limited to workers’ compensation remedies, the nonemployee child would not be so limited. I believe the same result is proper in this case.
The majority also claims that the purpose of the workers’ compensation scheme supports its decision. Again, I disagree. The majority suggests that the employer “having given up all common law defenses and undertaken a form of strict liability to employees, should not be held liable in tort for certain collateral consequences of a covered injury.” (Maj. opn., ante, p. 1454.) However, the very case the majority relies on for this proposition—Williams v. State Compensation Ins. Fund, supra, 50 Cal.App.3d 116—makes it clear that it is employees (not third party tort victims) who must give up certain rights in exchange for the employer shouldering the burden of strict liability.2 There is no reason in law or policy why nonemployee third parties—who derive no benefits from the workers’ compensation scheme—should be deprived of their right to sue the employer for all damages resulting from negligently caused injuries.
Finally, the majority argues that its decision is supported by “the ramifications of a contrary position.” (Maj. opn., ante, at p. 1453.) According to the majority, if the unborn child of a pregnant worker were to retain a separate tort cause of action, the employer would face increased potential liability. (Maj. opn., ante, at p. 1454.) I do not doubt this is true. Nevertheless, it is not a sufficient reason to deprive the child of his cause of action against the negligent employer.
*1458Although an employer will face potential liability for injuries caused to the unborn children of its employees, in most instances the employers’ third party liability insurance will provide coverage. Here, for instance, it is likely that the injury to the unborn child would have been covered by Macy’s liability policy. The majority seems to worry that a decision imposing ordinary tort liability will inflate insurance premiums and provide an incentive to employers to discriminate against pregnant woman workers. Although these are regrettable consequences of a decision imposing liability, in my view they do not justify a contrary decision which—as the majority acknowledges—will deprive the injured child and his parents of any compensation for injuries suffered by the child at the hands of the negligent employer.3 (Maj opn., ante, at p. 1455, fn. 7.)
Finally, I do agree with the majority that the problems posed by this case call for a legislative response. (Maj. opn., ante, at p. 1453, fn. 5, & p. 1455, fn. 7.) The regrettable result the majority reaches leaves the parents in this case completely at sea. Neither the employer, the workers’ compensation system, nor the employer’s liability insurer now have an obligation to provide compensation for the injuries suffered by Baby Freytes. Although this may be the best of all possible worlds from the employer’s perspective, it is the worst of all possible worlds for the parents who—caught in the gap between ordinary tort liability and the workers’ compensation remedy—are left to fend for themselves. Consequently, I join with my colleagues and call on the Legislature to fill the gap left by the majority’s decision.
Appellants’ petition for review by the Supreme Court was denied November 16, 1989.
Appellants’ medical expert stated that as a result of the nurse’s delay the mother’s blood supply and blood pressure were reduced to the point where she suffered “hypotension and near shock.” The expert did not identify any other injury to the mother which could be attributed to the nurse’s negligence. The expert also stated that the delay acted more quickly to injure Baby Freytes and “it is medically probable that Baby Freitas [s/c] was injured before there was any significant lowering of the mother’s blood pressure.”
The Williams decision states in pertinent part: “The theory underlying the out-of-state decisions [holding that workers’ compensation provides the exclusive remedy even though the resulting disability is noncompensable] is that the workers’ compensation plan imposes reciprocal concessions upon employer and employee alike, withdrawing from each certain rights and defenses available at common law; the employer assumes liability without fault, receiving relief from some elements of damage available at common law; the employee gains relatively unconditional protection for impairment of his earning capacity, surrendering his common law right to elements of damage unrelated to earning capacity . . . .” (50 Cal.App.3d at p. 122, italics added.)
It bears noting that at least one state—Louisiana—holds that an employer is liable in tort for injuries caused to the unborn children of its employees. In Adams v. Denny’s Inc. (La.App. 1985) 464 So.2d 876 [55 A.L.R.4th 787], a pregnant Denny’s waitress slipped and fell due to the negligence of the restaurant. The fall resulted in the loss of the baby and the parents sued Denny’s for the wrongful death of the unborn child. The Louisiana court held that the action was not barred by the exclusivity section of the state workers’ compensation law. To my knowledge, employers have not fled Louisiana en masse as a result of this decision.