Opinion
DBDCV186025335S
09-23-2019
Kristen BEST, Admin. et al. v. CCWC PROFESSIONAL PRACTICE GROUP, LLC dba Connecticut Childbirth and Women’s Center
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., J.
The defendant CCWC Professional Practice Group, LLC d/b/a Connecticut Childbirth and Women’s Center ("defendant"), filed a motion to strike dated August 2, 2019, and memorandum of law in support of motion to strike of same date, pursuant to Practice Book § 10-39(a)(1), to strike the second count of the plaintiffs’ Kristen Best, Administratrix of the Estate of Rohan K. Williams and Kristen Best ("plaintiff" and "plaintiff Best" respectively) revised complaint ("revised complaint") dated July 3, 2019 on the ground that it fails to state a claim upon which relief can be granted. More specifically, the first count is legally insufficient because the revised complaint is devoid of any fact which would support a cause of action for negligent infliction of emotional distress ("NIED") out of negligence and carelessness during her pregnancy. For these reasons, defendant moves that the court strike the second count of the revised complaint. The plaintiff Best alleges that count two of the revised complaint states a legally sufficient claim for NIED in accordance with pertinent Connecticut precedent, and the court should deny the motion to strike.
FACTS
This is a medical malpractice case arises out of alleged negligence by the defendant, CCWC Professional Practice Group, LLC d/b/a Connecticut Childbirth and Women’s Center (hereinafter referred to "CCWC"), through its agents, servants, and/or employees, including, but not limited to, its nurses, nurse-midwives and/or student nurses. The plaintiffs allege various negligent acts by the defendant during plaintiff Best’s labor period and delivery of the infant-plaintiff decedent on July 16, 2017. The infant-plaintiff decedent, Rohan K. Williams, upon delivery, was pulseless and following unsuccessful resuscitation efforts, was pronounced dead on or about July 16, 2017 at 1:16 p.m. at Danbury Hospital. The plaintiff, Kristian Best has filed a claim against defendant for the NIED she suffered and continues to suffer as result of the negligent medical care she received during the period of time leading up to the infant-plaintiff’s delivery.
LEGAL STANDARD
Practice Book § 10-39(a) provides in relevant part: "A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of the complaint ..." "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "[A] party may challenge the legal sufficiency of an adverse party’s claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ..." Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).
DEFENDANT’S POSITION
The defendant moves to strike the second count of plaintiffs’ revised complaint based on legal insufficiency.
In order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that the distress, if it were caused might result in illness or bodily harm ... this ... test essentially requires that the fear of distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants’ conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants’ conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005).
There is nothing in the plaintiffs’ revised complaint that reflects that the defendant should have realized that anything they did involved an unreasonable risk of causing plaintiff Best emotional distress. The plaintiff must prove the following elements: "(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiff’s distress." DeCorso v. Watchtower Bible and Tract Soc. of New York, Inc., 78 Conn.App. 865, 875, 829 A.2d 38 (2003) "The obstetrician owes a duty of care to the mother, but that duty is to render proper care to the mother ... The duty to render proper care to the infant is one that is owed to the infant itself. Only the infant can sue for a breach of duty to the infant. If the mother suffers independent injuries during the birth process, then she may maintain a cause of action. If the infant suffers injuries, the infant may maintain a cause of action. The two may not be conflated." Drown v. Associated Women’s Health, 2002 WL 31943387 at *1, 2002 Conn.Super. LEXIS 4155 (December 26, 2002) (Jenkins Pittman, J.) at *3 . "Merely because a duty is owed to the mother, a breach of which might result in a claim for the negligent infliction of emotional distress, does not mean that negligent acts inflicted on the infant can be a basis for a breach of that duty." D’Attilo v. Viscarello, 2005 WL 2206784 at *4, 2005 Conn.Super. LEXIS 2190 (August 11, 2005) (Dooley, J.) at *11 . Similarly, in Brodney v. Solinksi, 2006 WL 852323, 2006 Conn.Super. LEXIS 790 (March 10, 2006) (Beach, J.) , the court granted the defendants’ motion to strike claims of NIED by parents of an infant who died during childbirth. The court concluded that the complaint, which alleged that the defendants undertook the care of the infant in utero and of the plaintiff mother, that the infant suffered severe injuries, and that the defendants failed to care for the mother and the infant, lacked the factual specificity required. Id. at *1-2, 2006 Conn.Super. LEXIS, at *3-5.
Here, the plaintiff Best’s claim for NIED are derived entirely from injuries to the infant plaintiff decedent, alleging the same allegations of negligence and injuries sustained by the infant-plaintiff decedent into the Second Count, but adds no specific allegations of harm that plaintiff Best suffered independent of the harms incurred by her son. The plaintiff does not allege that the negligence caused injuries to her, but merely recites the essential NIED claim. Therefore, as per the reasoning above, the facts the plaintiff Best pled are insufficient to support a claim of NIED. The proper standard requires the court to only look to the actual facts alleged, and to test the legal sufficiency of the cause of action. The court is not expected to stretch, imply or assume facts when determining if a complaint withstands a motion to strike. The test is as to the legal sufficiency, whereby the court construes the actual alleged facts most favorable to support the legal sufficiency of a cause of action. In this case, the plaintiffs have failed to allege facts sufficient to support a cause of action for negligent infliction of emotional distress. It is evident that the plaintiffs’ revised complaint is simply void of any fact which would support a cause of action for NIED.
In response to the plaintiffs’ objection to motion to strike and memorandum in opposition to motion to strike dated August 29, 2019, the defendant filed a reply. Defendant alleges that contrary to plaintiffs’ inaccurate statements, the defendant has identified case law that is applicable. Superior Court decisions are split on the issues raised by this motion. The defendant continues to maintain that the plaintiffs fail to allege the facts necessary to establish a cause of action for NIED, and the motion to strike must be denied.
PLAINTIFF’S POSITION
The plaintiffs filed the instant objection and this memorandum in opposition on the grounds that (1) the defendant misstates the plaintiff’s cause of action, (2) negligent infliction of emotional distress is a well-recognized common-law cause of action in birth injury medical malpractice actions, and (3) the negligent infliction of emotional distress count is properly pleaded. The defendant states that the plaintiffs failed to set forth valid claims of negligent infliction of emotional distress, which is incorrect. Rather, the plaintiff has stated a legally sufficient claim for negligent infliction of emotional distress in accordance with all poignant Connecticut precedent, which the defendant failed to identify for this Court. The defendant has relied on cases which are inapposite to the issues at bar and focuses solely on bystander emotional distress claims and/or the minority view of some Superior Court judges.
The plaintiff, Kristian Best, has also filed a claim against defendant for the negligent infliction of emotional distress she suffered and continues to suffer as a result of the negligent medical care she received during the period of time leading up to the infant-plaintiff’s delivery. The common-law action of NIED has an established factors analysis in Connecticut. "[T]o establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements: (1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the distress." Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, 938 A.2d 1269 (2008).
"Before and during delivery- the relevant timeframe- the mother was not an uninvolved third-party bystander, someone who just happened to be there ... The mother is a biologically-necessary participant in childbirth, and there is only one such individual with that status in any given childbirth event." Krayeski v. Greenwich Hosp., No. FSTCV 146022177S, 2015 WL 9595345 at *7, 2015 Conn.Super. LEXIS 2977 at *16-23 (Nov. 24, 2015, Povodator, J.) . In Jensen v. Physicians for Women, P.C. et al., 2015 Conn.Super. LEXIS 3239 (Sept. 30, 2015, Ozalis, J.), the court found "A review of the allegations contained in the First Count which are incorporated into the Second Count, the negligent infliction of emotional distress claim, show that the plaintiff is claiming emotional distress from negligent prenatal care she received from the defendants as well as from the negligent care she herself received during the delivery which resulted in the death of plaintiff Sydney Jensen." "A birthing mother is the patient and active participant, not a bystander in connection with the delivery of her child ... A birthing mother may assert a claim for negligent infliction of emotional distress due to the harm she sustained as a result of medical malpractice during the delivery of her child." Id., citing Subiono v. Yordan, Superior Court, judicial district of New London, Docket No. 559573 at 5 (Apr. 25, 2002, Martin, J.) (Court denied motion to strike plaintiff-mother’s claim for negligent infliction of emotional distress where plaintiff alleged that "the defendant knew or should have known that his negligence, that is, the breach of his duty to provide her with the appropriate standard of care during the birth and delivery of her son, was likely to and did cause her emotional distress and illness").
Of the cases that have dealt with this issue, a few of the courts have sided with the defendants, but the majority of these cases make it clear that the birthing mother is an active participant in the birthing process and is owed a duty of care by the physician or other medical provider and, as such, has a valid claim for negligent infliction of emotional distress. See McKiernan v. Komarynsky, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-04-0200530-S (Oct. 27, 2004, Lewis, J.) (Court denied motion to strike where plaintiff-mother asserted that because of the defendants’ negligence and carelessness, she suffered severe psychological, physiological and emotional distress which are painful, serious and permanent in their nature and effects), Exhibit 1; Gorbea v. Solinsky, Superior Court, judicial district of New London, Docket No. CV-09-6000860-S (Jan. 25, 2011, Martin, J.) (Court denied motion to strike where plaintiff-mother asserted that the defendant’s negligence was the cause of the [plaintiff mother’s] mental anguish), Exhibit 2; Sarfo-Darko v. Carraba, Superior Court, judicial district of Hartford, Docket No. CV-05-5000930-S (June 30, 2006, Tanzer, J.) (Court denied motion to strike where plaintiff-mother alleged that she suffered severe emotional distress as a result of the defendant’s negligent conduct in the care of the plaintiff and her child before and during childbirth, and the defendant knew or should have known that such conduct involved an unreasonable risk of causing emotional distress); Luminati v. Jaffe, Superior Court, judicial district of Litchfield, Docket No. CV-06-5001244-S (Oct. 29, 2007, Marano, J.) (Court denied defendant’s motion to strike negligent infliction of emotional distress count on grounds that the plaintiff did not assert a claim for bystander emotional distress); Smith v. Ronan, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-06-5000430-S (May 22, 2008, Ripley, J.) (Court denied motion to strike where plaintiff alleged that the defendant knew or should have known that their conduct involved the unreasonable risk of causing emotional distress and that the distress might result in illness or bodily harm; and, the defendant knew or should have known that her conduct was foreseeable and likely to cause the plaintiff’s mother emotional distress; and, the fear and severe psychological, physiological and emotional distress suffered by the plaintiff-mother was reasonable in light of the defendant’s conduct); Brown v. Guinan, Superior Court, judicial district of Hartford, Docket No. CV-05-4012679-S (Jan. 14, 2009, Langenbach, J.) (Court denied motion to strike where plaintiff-mother alleged that the defendants undertook to provide medical care to the plaintiff Brown with regard to her pregnancy and the delivery of her baby, and that they breached the standard of care which caused the plaintiff to suffer serious emotional distress that might result in illness or bodily harm and created an unreasonable risk of causing emotional distress in the plaintiff); Subiono v. Yordan, Superior Court, judicial district of New London, Docket No. 559573 (Apr. 23, 2002, Martin, J.) (Court denied motion to strike plaintiff-mother’s claim for negligent infliction of emotional distress where plaintiff alleged that "the defendant knew or should have known that his negligence, that is, the breach of his duty to provide her with the appropriate standard of care during the birth and delivery of her son, was likely to and did cause her emotional distress and illness").
The mother and fetus are patients of the obstetric team which provide both prenatal care, treatment and recommendations and delivery. The birthing mother has created the patient/physician relationship for both her and her unborn fetus. The obstetrician and/or other obstetrical medical providers care for the mother as much as the fetus. Both the mother and the child are owed a duty by the medical providers caring for them during the birthing process. It is illogical to split an obstetrician’s relationship with the mother from the duty owed to the baby during the pregnancy and delivery of that mother and child.
The plaintiff is seeking a claim for NIED based upon the harm the plaintiff suffered as a result of the medical malpractice her pregnancy which ultimately resulted in the death of the infant-plaintiff, and emotional/psychological injuries to plaintiff due to the actions and/or inactions of the defendants. The plaintiff did not simply witness the event or the resultant injury, she was intimately part of the alleged malpractice. It is unequivocal that the plaintiff had a physician-patient relationship with the defendant and the failure of the defendant to afford the plaintiff and her deceased child, proper medical care caused the injuries alleged to both plaintiffs in this case.
The allegations of the second count of the plaintiffs’ revised complaint meet all elements for a legally sufficient cause of action for NIED. Moreover, the allegations are nearly identical to the allegations set forth in the many of the aforementioned cases wherein Connecticut courts have consistently rejected motions to strike that are identical to the instant motion filed by the defendants. Therefore, this court should deny the defendant’s motion to strike.
ANALYSIS
This court carefully and on more than one occasions reviewed the submissions of the parties as it relates to this matter. While this court will always analyze various positions taken by different superior court decisions, and will not adopt a majority opinion only based on sheer percentages, the case below provides a compelling, well-reasoned, persuasive, and deductively reasoned rationale as to the proper disposition of this motion. Jensen v. Physicians for Women, P.C., 2015 Conn.Super. LEXIS 3239, judicial district of Danbury (2015) (Ozalis, J.), is a matter almost identical to this matter. It was a medical malpractice matter that arises out of the alleged negligence of the defendants during the prenatal care of plaintiff Sarah Jensen and delivery of deceased plaintiff Sydney Jensen ("plaintiff Jensens"). The plaintiffs Jensen alleged the defendants were negligent in failing to, inter alia: (1) timely diagnose and/or treat the plaintiff Sarah Jensen’s pre-eclampsia; (2) identify the risk to the infant plaintiff caused by such pre-eclampsia; (3) admit plaintiff Sarah Jensen to the hospital in a timely manner; and (4) perform a c-section all of which resulted in the death of plaintiff Sydney Jensen. Id. at *2.
Here, the plaintiff Best filed a revised complaint with allegations in count two paragraph 7(a) through (u) being the same allegations as stated in count one paragraph 6, (a) through (u). Plaintiff Best in both count one and count two allege that the defendant was negligent in failing to, inter alia .: (1) failed to properly monitor the infant-plaintiff decedent’s mother during her labor period; (2) failed to properly distinguish between the heart rate of the infant-plaintiff decedent and the infant-plaintiff decedent mother’s heart rate during said labor period; (3) failed to timely transfer the infant-plaintiff decedent’s mother to Danbury Hospital for delivery of the infant-plaintiff decedent despite signs and/or symptoms of fetal distress; (4) failed to timely observe the infant plaintiff decedent’s thick meconium during the infant-plaintiff decedent’s mother’s labor period despite evidence of such at birth; (5) failed to timely communicate to the infant-plaintiff decedent’s mother during the labor period that it would be safer to deliver the infant-plaintiff decedent at Danbury Hospital; (6) failed to timely resuscitate the infant-plaintiff decedent following his delivery; and (7) failed to properly and timely ventilate the infant-plaintiff decedent upon his delivery although the defendant ... knew or should have known that the failure to timely and properly ventilate the infant-plaintiff decedent upon delivery created an increased risk of harm to him. Finally in count two paragraph 8 the plaintiff Best stated that "The defendant ... knew or should have known that ... conduct, as listed in paragraph 7, was likely to cause an unreasonable risk of psychological, physiological and emotional distress to the plaintiff, Kristian Best."
The plaintiff Best made it clear at the short calendar hearing that the claim made was for NIED and not bystander emotional distress. The court in Jensen stated that "The elements of a claim for negligent infliction of emotional distress are: ‘(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress was forseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiff’s distress.’ Carrol v. Allstate Insurance Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). In order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that the distress, if it were caused, might result in illness or bodily harm ... This ... test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendant’s conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). Jensen at *2-3.
Judge Ozalis further elaborated that "The defendants claim that the Second Count is a bystander emotional distress claim as the plaintiff Sarah Jensen’s emotional distress is only derivative of the injury suffered by plaintiff decedent Sydney Jensen. However, a review of the allegations contained in the First Count which are incorporated into the Second Count, the negligent infliction of emotional distress claim, show that plaintiff is claiming emotional distress from negligent prenatal care she received from defendants as well as from the negligent care she herself received during the delivery which resulted in the death of plaintiff Sydney Jensen. "A birthing mother is the patient and active participant, not a bystander in connection with the delivery of her child ... A birthing mother may assert a claim for negligent infliction of emotional distress due to the harm she sustained as a result medical malpractice during the delivery of her child." Gorbea v. Solinsky, Superior Court, judicial district of New London, Docket No. CV-09-6000860S, 2011 WL 590888, 2011 Conn.Super. LEXIS 132 (January 23, 2011, Martin, J.). It would be difficult to find a fact pattern more closely aligned to plaintiff Best’s allegations than is found in the Jensen matter. Finally, the Jensen decision stated that "In taking all well-pleaded facts and those facts necessarily implied from the allegations as admitted in the Second Count, the court finds that the plaintiff has stated a legally sufficient claim for negligent infliction of emotional distress." Accordingly, defendants’ motion to strike the Second Count of the Revised Complaint is denied. Id. at *1-2, 2011 Conn.Super. LEXIS 132, at *4-5.
This court is, based on the factual similarity, and the case law as stated in the Jensen matter, to arrive at the same conclusion as Judge Ozalis. Based on the foregoing, this court finds, as found in the Jensen case, that in taking all well-pleaded facts and those facts necessarily implied from the allegations as admitted in the second count, that the plaintiff Best has stated a legally sufficient claim for negligent infliction of emotional distress.
CONCLUSION
Based on the foregoing, the motion to strike the second count of the plaintiff Best’s revised complaint is DENIED.