Opinion
No. CV 01-0811432S
August 10, 2004
MEMORANDUM OF DECISION
This is an action brought by the plaintiffs, Leona Redman and Mark Brown, individually and on behalf of their daughter, Camry Brown, against George Bacall, a physician and surgeon specializing in the field of obstetrics, gynecology and maternal fetal medicine; the Women's Health Group, LLC; and St. Francis Hospital Medical Center. In the second revised amended complaint, filed February 11, 2003, the plaintiffs allege in five counts injuries caused by negligence and claim monetary damages resulting from the permanent harm allegedly received by Camry Brown during the birthing process.
In count four of the second revised amended complaint, the plaintiff mother alleges that as a result of the defendants' negligence she suffers from severe psychologic, physiologic and emotional distress and that this has impaired her ability to carry on and enjoy life's activities. On June 30, 2003, the defendants Bacall and the Women's Health Group, LLC filed a motion to strike this count on the ground that it purports to state a claim for bystander emotional distress which is not a recognized cause of action in medical malpractice actions. As required by Practice Book § 10-42, the defendants filed an accompanying memorandum of law in support of the motion to strike, and on July 28, 2004, the plaintiffs filed a memorandum of law in opposition. On August 11, 2003, the defendants filed a reply to the plaintiffs' memorandum of law in opposition. The motion was heard on the short calendar on April 26, 2004.
The plaintiffs have brought suit against George Bacall, the Women's Health Group, LLC, and St. Francis Hospital Medical Center. Because the motion to strike is by Bacall and the Women's Health Group, LLC, references to the defendants are to them only.
"The purpose of a motion to strike is to contest . . CT Page 11232-hv . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003).
The defendants argue in their memorandum of law in support of the motion to strike that Connecticut does not recognize a cause of action for bystander emotional distress in medical malpractice actions. They further argue that they do not owe an additional duty of care to the mother of an infant during the birthing process. The plaintiffs argue that Connecticut courts do recognize a cause of action for bystander emotional distress in the present circumstances. They further argue that an independent duty was owed directly to the mother which was not derivative of the duty owed to the delivered infant.
As an initial matter, this court notes that the defendants filed a previous motion to strike on December 18, 2001. That motion addressed the plaintiff father's claim in the amended complaint, filed November 20, 2001, alleging that as a result of the defendants' negligence he suffers from severe psychologic, physiologic and emotional distress and that this has impaired his ability to carry on and enjoy life's activities. On June 25, 2002, the court, Beach, J., granted the defendants' motion to strike the plaintiff father's claim. In so doing, Judge Beach cited Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), and Benton v. Taylor, Superior Court, judicial district of Hartford, Docket No. CV 00 0595180 (November 24, 2000, Beach, J.). In Maloney, our Supreme Court held that a cause of action for bystander emotional distress is not permitted in the medical malpractice context. In Benton the court granted a motion to strike claims brought by a mother and father, individually, alleging emotional CT Page 11232-hw distress related to the defendants' negligence during the delivery of their child. The Benton court concluded that the Connecticut Supreme Court's decision in Maloney was not overruled by later decisions and therefore there is no action for bystander emotional distress in the medical malpractice context for either the mother or the father. The claims for emotional distress of both Benton plaintiffs were therefore stricken.
While this court agrees with the proposition that the plaintiff father in this action could not state a cause of action based upon bystander emotional distress, the question as to whether the plaintiff mother may state a cause of action for emotional distress was not before Judge Beach when he granted the earlier motion to strike. The court is inclined to follow the majority of Superior Court decisions which hold that a mother is not a bystander during the delivery of her own child and is disinclined to follow the holding in Benton with respect to that plaintiff mother.
When the judges of the Superior Court have addressed whether a mother may recover emotional distress damages for the injury or death of a child resulting from medical malpractice in the prenatal and delivery periods, the majority has recognized "a distinction . . . between claims for bystander recovery and claims for negligent infliction of emotional distress based on the breach of a direct duty owed to a plaintiff/mother stemming from the physician-patient relationship." (Internal quotation marks omitted.) Misurale v. Cuteri, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 0383788 (Mar. 13, 2003, Doherty, J.). This majority has ruled that "a mother is not a bystander [with respect to matters] that are incident to prenatal care and the delivery of her child." (Internal quotation marks omitted.) Subiono v. Yardan, Superior Court, judicial district of New London, Docket No. CV 01 0559573 (April 25, 2002, Martin, J.). These judges have reasoned that "[w]here the child remains a part of the mother's physical being, concerns for the child's welfare during delivery procedures are concerns for the mother's well being . . . In such a circumstance . . . there are two within the CT Page 11232-hx zone of danger and the doctor owes a duty to each . . . [T]he plaintiff-mother [is] not a mere eyewitness or bystander to an injury caused by another but rather she [is] the one to whom a duty was directly owed by the obstetricians and the one who was directly injured by the physicians' breach of that duty." (Internal quotation marks omitted.) Johnson v. Day Kimball Hospital of Windham County, Inc., Superior Court, judicial district of Windham at Putnam, Docket No. 063592 (January 24, 2001, Foley J.). "To suggest that a mother engaging in the process of labor and delivery is a bystander to the event, or to try to sever out concerns for her own well-being versus concerns for the child within her, defies logic and reason. A mother's concerns during delivery for her own welfare and that of her child are so interwoven as to be legally inseparable." Golymbieski v. Equia, Superior Court, judicial district of Waterbury, Docket No. CV 95 0125140 (May 22, 1997, Fasano, J.) ( 19 Conn.L.Rptr. 563); but see Drown v. Associated Women's Health Specialists, P.C., Superior Court, judicial district of Waterbury, Docket No. CV 000159512 (December 24, 2002, Pittman, J.) ( 33 Conn.L.Rptr. 562) (mother owed duty of care by doctor may only recover for injury to herself). The courts have thus held that "[a] woman in labor is a participant . . . permitting the mother a direct claim for emotional distress." (Internal quotation marks omitted.) Johnson v. Day Kimball Hospital, supra, Superior Court, Docket No. 063592.
The identity of mother and infant before and during delivery is here addressed in the context of a cause of action for negligent infliction of emotional distress as a result of medical malpractice during prenatal care, labor and delivery. The court is not ruling on the identity or separateness of the mother and child for any other purpose.
The court now addresses the specific allegations in the present case. In count four of the second revised amended complaint, the plaintiff mother alleges: that the defendants, individually and through agents, apparent agents, employees and servants, undertook the care, treatment, monitoring and supervision of the plaintiff mother and child; that the plaintiff mother delivered the plaintiff child; that the defendants deviated from applicable standards of care by failing to properly assess fetal monitoring tapes, by failing to employ standard maneuvers once shoulder dystocia was encountered, by failing to obtain sufficient training and consultation from physicians competent in the management of shoulder dystocia, and by failing to provide the plaintiff mother with necessary information; CT Page 11232-hy that as a result of the defendants' negligence, the plaintiff child suffers from serious and permanent injuries related to her right shoulder; and that as a result of the defendants' negligence, the plaintiff mother suffers from severe psychologic, physiologic and emotional distress that has impaired her ability to carry on and enjoy life's activities.
Connecticut law recognizes that a plaintiff may recover for emotional distress suffered as a result of a negligent act inflicted on the plaintiff and that recovery "does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact." Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). The courts "continually have held that 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 that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003).
Viewing the allegations of the fourth count in their entirety, together with all reasonable inferences to be drawn therefrom, and in the light most favorable to the plaintiff mother, the court concludes that the plaintiff mother has pleaded a facially viable claim for negligent infliction of emotional distress. See, e.g., Warycha v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. 02-0465854 (March 29, 2004, Zoarski, J.T.R.). Therefore the defendants' motion to strike count four of the second revised complaint, number 142, is denied.
The court notes that the claim for negligent infliction of emotional distress would be better drafted to allege that the defendants (a) should have realized that their conduct involved an unreasonable risk of causing emotional distress, and (b) that the distress, if it were caused, might result in illness or bodily harm. However, because 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 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, 842 A.2d 1124 (2004); this court sees no purpose in requiring the plaintiffs to amend the second revised amended complaint.
BY THE COURT
Kevin E. Booth, J.