Opinion
No. X04 CV 04 4004680 S
March 10, 2006
MEMORANDUM OF DECISION
This is primarily a medical malpractice action. The plaintiff's Marian and Michael Brodney are the parents of the infant Aaron Brodney, who, according to the allegations of the complaint, regrettably died during childbirth. Counts one, three and five of the complaint are claims of professional negligence brought by the parents as administrators against Stanley Solinsky, the defendant obstetrician/gynecologist, his group and Lawrence and Memorial Hospital. Counts two, four and six are claims for emotional distress brought by Marian Brodney on her own behalf.
The defendants Solinsky and the Shoreline Obstetrics Gynecology, P.C. have filed a motion (#118) to strike the second and fourth counts, which claim to assert claims of negligent infliction of emotional distress. The argument is that bystander emotional distress claims may not be maintained in the medical malpractice context and that there are no factual allegations supporting a claim of, for lack of a better description, non-bystander emotional distress. The plaintiffs argue that bystander claims may be brought in the medical malpractice context and that, in any event, facts have been alleged sufficient to state a "non-bystander" claim for negligent infliction of emotional distress.
I believe that the bar on bystander distress claims in the medical malpractice area has survived the general authorization of bystander claims; that is, I believe that Clohessy v. Bachelor, 237 Conn. 31 (1996), did not overrule Maloney v. Conroy, 208 Conn. 392 (1988). It is not appropriate, nor is it compelled by logic or experience, for a trial court to create an exception for childbirth cases.
The question remains whether counts two and four state a claim on which relief can be granted, if viewed as a standard negligent infliction of emotional distress cause of action.
To 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 plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).Stohlts v. Gilkinson, 87 Conn.App. 634, 645 (2005).
The conduct in question must be conduct directed, intentionally or otherwise, toward the patient Marian Brodney in order to remove the matter from the realm of bystander liability. See, in this context, Mavor v. Archibold, 2005 WL 1634612 (Sferazza, J.) (2005); D'Attilo v. Viscarello, 2005 WL 2206784, 39 Conn. L. Rptr. 778 (Dooley, J.) (2005). In both Mavor and D'Attilo, counts were stricken because conduct arising from the care of the mother was not alleged to be the source of emotional distress.
The allegations of counts two and four arguably state the elements of a cause of action sounding in negligent infliction of emotional distress. The close question is whether negligent conduct in the care of the mother, causing emotional distress, has been alleged. The complaint does allege in paragraph five that the defendant(s) undertook the care of the infant in utero and of the plaintiff mother. Paragraph six alleges that the infant suffered severe injuries. Paragraph seven lists the allegations of negligence. The first allegation references the mother: it alleges in very general terms that the defendant(s) failed properly to care for the mother Marian and the infant. The remaining approximately twenty allegations do not specifically refer to any plaintiff. Paragraph eight specifies severe injuries to the infant.
There are slight differences in language between the required elements of the cause of action as stated by appellate authority and the language of the complaint. The differences are minor and have not been urged as a ground of striking the counts.
There are two options. If the motion to strike were to be denied, on the theory that the factual claim is stated quite generally as to the mother but that no greater specificity is required, then discovery will flesh out the facts relied on. If more specificity in pleading is required, then the conduct relied on in asserting the emotional distress claim as to the mother would more clearly appear in the complaint. If the latter course is chosen, the issues would presumably be somewhat more clearly framed and, at trial, evidential rulings and instructions to the jury would be facilitated. It does not seem entirely plausible that all of the treatment as to the infant is also treatment as to the mother. On balance, requiring some factual specificity as to the conduct in the treatment of the mother causing emotional distress is sensible. The motion to strike is, then, granted.