2006 Ct. Sup. 20393, 42 CLR 268
No. X05-CV05-5000242SConnecticut Superior Court Judicial District of Stamford-Norwalk Complex Litigation Docket at Stamford
November 3, 2006
MEMORANDUM OF DECISION
MICHAEL E. SHAY, JUDGE.
The case before this court arises out of claims by the parents of a minor child, Elizabeth Abstoss, that she suffered permanent injury as a result of the negligence of the defendants during her delivery on June 12, 2004. In addition, the plaintiff mother (“Katherine”) seeks damages for infliction of emotional distress, and the plaintiff father (“Nicolas”) has claimed damages due to loss of consortium stemming from his wife’s injury. It is the latter two claims that are the subject of motions to strike collectively Counts II, III, VI, and VII of the Revised Complaint (#156) which were filed by the defendants herein. The court read the memoranda of law filed by the parties and heard oral argument.
DISCUSSION
“It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292 (2004). “For the purpose of [a] . . . motion to strike . . . [the moving party] admits all facts well pleaded.” (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4 (1996). “For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted.” (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass’n., Inc., 264 Conn. 474, 476 (2003). However, it does not “admit the truth or accuracy of opinions stated in the pleadings.” Quimby v. Kimberly Clark Corporation, 28 Conn.App. 660, 664 (1992). “[If] facts provable in the complaint would support a cause of action, the motion to strike must be denied.” CT Page 2039 Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 781 (2006). However, where, inter alia, a complaint fails to, “state a claim upon which relief may be granted,” the motion should be granted. Practice Book § 10-39(a). As to Counts II and VI the plaintiff, Katherine Abstoss, has asserted alternate grounds upon which the decision could be based, thus the court is required to specify in writing the ground upon which it has based its decision as to those counts. Practice Book § 10-43.
In Counts II and VI of the Revised Complaint, Katherine claims that the negligence of the defendants in connection with the delivery of her child caused the infant to suffer permanent injury and, in turn, for her to suffer emotional distress as a result. Connecticut courts have long recognized a cause of action for both intentional and negligent infliction of emotional distress. “In order for the plaintiff to prevail in a case for the liability under . . . [the intentional infliction of emotional distress] four elements must be established. It must be shown (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe.” Peytan v. Ellis, 200 Conn. 243, 253 (1986). Similarly, in order to prevail on a claim of negligent infliction of emotional distress, “a plaintiff must prove that the defendant’s conduct created an unreasonable risk of causing the plaintiff’s emotional distress, the plaintiff’s distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and finally, that the defendant’s conduct was the cause of the plaintiff’s distress.” Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 6-7 (2004). In looking at the complaint, it is apparent that the plaintiff has not plead a specific injury to herself other than the emotional distress occasioned by the alleged negligent treatment of the minor child. Therefore, a claim for damages based upon either the intentional or negligent infliction of emotional distress has not been sufficiently plead.
Alternatively, as here, where the claim of emotional distress arises out of the witnessing of an injury to another person, it is referred to as bystander emotional distress. However, as late as 1959, the Connecticut Supreme Court refused to recognize same as a viable cause of action, “where the emotional distress arises CT Page 20395 solely because of the harm or peril to a third person, and the negligence of the actor has not threatened the plaintiff with bodily harm in any other way.” Strazza v. McKittrick, 146 Conn. 714, 718-19 (1959). There, the mother, who was inside the house, heard a truck crash into the front porch where she believed, incorrectly as it turned out, that her child was playing and had been injured. This holding was reaffirmed in Maloney v. Conroy, 208 Conn. 392 (1988), a case arising out of an underlying medical malpractice claim. There, a daughter kept constant watch at her mother’s hospital bedside, as the patient’s condition deteriorated over time until she eventually died. In that decision, the court held that there is a strong public policy which emphasizes the fact that a doctor’s “central concern” should be, “the consequences to the patient, and not to other persons, of deviations from the appropriate standard of medical care . . .” Id., 403. Accordingly, under the facts of that case, bystander emotional distress was not recognized as a viable cause of action in the context of a medical malpractice action.
However, in 1996, the Connecticut Supreme Court concluded that the time was ripe to revisit the issue of the negligent infliction of bystander emotional distress and to recognize it as a viable cause of action. It did so in the case of Clohessy v. Bachelor, 237 Conn. 31 (1996). There, a mother and her two children were crossing a street, when the defendant’s automobile struck and killed one of the children. After a long and detailed analysis, relying in part upon Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968), and the fact that some Connecticut trial courts had already recognized the cause of action, the court overruled Strazza, rejected the “zone of danger” standard as having significant limitations (“hopeless artificiality”), and set forth a new test based upon the “reasonable foreseeability theory.” In brief, for a litigant to recover under this theory he must prove that: “(1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim’s condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander’s emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.” Clohessy v. Bachelor, supra 56. CT Page 20396
Some courts have considered the Maloney decision to be an absolute bar to any claims for infliction of emotional distress in the context of a medical malpractice action, and point to the fact that in Clohessy, while the Connecticut Supreme Court specifically overruled Strazza v. McKittrick, it did not overrule the former. They point to language of the U.S. District Court in the case of Kearney v. Philips Industries, Inc., 708 F.Sup. 479, 483 (D.Conn. 1989) to emphasize this point. There the court observed that, “several judges of the Connecticut Superior Court have ruled on bystander emotional distress claims in accident situations not involving medical malpractice.” (Emphasis added.)
However, a careful reading of the Clohessy decision leads this court to conclude that the quotation was taken out of context. For one thing, the Clohessy court specifically addressed the situation in Maloney and Amodio v. Cunningham, 182 Conn. 80 (1980), stating that it had left the “door open for the foreseeability rule” in Maloney, and “in neither case did the factual scenario present the court with the opportunity to make a definitive ruling on whether to recognize a cause of action for bystander emotional distress.” In addition, the court observed that the problem of linking an emotional injury to a traumatic event, “is compounded when the underlying act of negligence with respect to the victim is medical malpractice because there generally is no significant observable sudden traumatic event by which the effect upon the bystander can be judged. For this precise reason most courts have recognized that a cause of action for bystander emotional distress must be confined in order to avoid limitless liability.” Clohessy v. Bachelor, supra, 37 and 44. (Emphasis added.)
The court followed this reasoning with clear, strong language when it further held that, “. . . bystander emotional distress i reasonably forseeable. We further conclude that public policy requires that we recognize this duty owed by a tortfeasor to a bystander.” Id., 46. (Emphasis added.) Finally, the court observed that recognition of an action for infliction of bystander emotional distress was “clearly foreshadowed.” The court pointed out that in the Strazza case the plaintiff would have failed the test it was now adopting in Clohessy, and it gave for an example of foreshadowing, its decision in Amodio,
coincidently, a claim for infliction of emotional distress in the context of an action for medical malpractice. There, a mother CT Page 20397 sought damages for emotional injuries suffered while watching her daughter suffer and die. The trial court had stricken the mother’s claim, and the Connecticut Supreme Court discussed at length the trend in other jurisdictions toward allowing such a claim. While the court did not minimize the mother’s injuries, it ultimately rejected her plea to recognize the cause of action. The court held that, “merely observing the consequences of the defendant’s negligence towards another person without perceiving the actual negligent behavior, however, is insufficient to maintain a cause of action for emotional distress to a bystander.” Amodio v. Cunningham, supra, 90. The court went on to hold that, “without determining whether in fact an alleged negligent diagnosis is susceptible to sensory perception, we note that the allegations of the complaint indicate that the injuries suffered by the plaintiff’s child became manifest a considerable period of time after the alleged negligence of the defendants occurred.” Id., 92-3.
As stated above, Clohessy held that there is a public policy in favor of finding a duty of care and the forseeability of injury to certain bystanders. Applying the foregoing analysis to the facts of this case, this court draws a distinction between it and the facts of the Maloney decision and the public policy articulated therein. First and foremost, in balancing the competing public policies, this court finds that in the context of the treatment of a mother and her unborn child culminating in the delivery of the infant and its immediate postnatal care, there is a clear duty of care owed by the physician to both the mother and the child. In its most basic form, the mother asks the doctor to, in effect, safely bring her and the child through the hazards of pregnancy and delivery. While each is a separate person, mother and child are inextricably joined, physically and emotionally throughout the entire process. Mother is at once both patient and bystander. Accordingly, if the duty of care to a bystander and the foreseeability of injury were the sole criteria to be applied by the court, there is no logical reason not to apply the Clohessy standards to a medical malpractice case, in particular, a case involving the birth of a child.
In the context of a medical malpractice case, whether or not the complaint states a viable cause of action for negligent infliction of bystander emotional distress for which relief can be granted should be decided on a case by case basis looking at the facts. It is axiomatic that the when it rendered its decision in Clohessy, the Connecticut Supreme Court was aware of the CT Page 20398 existing body of law and that it intended that its ruling be clear and consistent with the evolution of this cause of action. Accordingly, since that court did not overrule Maloney, it is up to this court to seek common ground between both decisions and to reconcile the principles articulated in both. Reading both cases together, along with Amodio, it is clear that the Connecticut Supreme Court draws a distinction between a situation where there is a “significant observable sudden traumatic event,” and a situation where the plaintiff is, “merely observing the consequences of the defendant’s negligence toward another person without perceiving the actual negligent behavior.”
Applying these principles to the facts of this case, it is clear that Katherine has plead the consequences of the alleged negligence and not a significant observable negligent act. For instance, she alleged that the fetal monitor strips showed that she had a hyper-stimulated uterus and that the infant suffered from a condition known as hypoxia. There was no allegation that she had access to the fetal monitor strips during the delivery and at the time of the birth, or that she possessed the requisite training and skills to interpret same. She also plead the fact that she was awake during the entire procedure, followed by the conclusory allegation that child was “born in a distressed condition.” Katherine also plead that she observed her daughter upon delivery and throughout her hospitalization. Clearly these observations followed the alleged negligence. She described her contractions as being “too rapid and too strong,” but absent pleading specialized medical knowledge on her part, she merely described her symptoms and not any observable negligent conduct of the defendant resulting in trauma to the infant. In fact, the allegations of negligence stem from a failure to act in an appropriate and timely manner. (e.g. failure to perform a “C-section.”) On the other hand, had she described observing a clearly traumatic event, such as the dropping of the newborn on the delivery room floor, the court’s conclusion would have been different. For the foregoing reasons, the complaint fails to plead sufficient facts that would support a cause of action for infliction of bystander emotional distress.
Loss of consortium was first recognized as a viable cause of action in Connecticut by the Connecticut Supreme Court in the case of Hopson v. St Mary’s Hospital, 176 Conn. 485, 494-96
(1979). A claim for loss of consortium is a derivative cause of action, and as such, “is dependent on the legal existence of the predicate action . . .” Cavallaro v. Hospital of St Raphael,
CT Page 20399 92 Conn.App. 59, 62, fn. 5 (2005). At the time of the oral argument, all parties conceded that this claim rises or falls according to the decision regarding the claim for damages for the infliction of emotional distress. Since Katherine has failed to state a sufficient claim for negligent infliction of bystander emotional distress for which relief can be granted, Nicolas’ claims for loss of consortium in Counts III and VII must also fail.
ORDER
The foregoing motions to strike having been heard, and the court having considered the pleadings, including the memoranda of law, the defendants’ Komarynsky and OB/GYN Consultants, PC, Motion to Strike (#159) Counts II and VI, and the defendant Stamford Health Systems, Inc.’s Motion to Strike (#164) Counts III and VII are HEREBY GRANTED. CT Page 20400