Opinion
No. CV 05-4012679
January 14, 2009
MEMORANDUM OF DECISION
The plaintiff, Cherlene Brown, in her individual capacity and as the administratrix of the estate of Conner Brown, commenced this action by service of process on the defendants on May 25 and 26, 2005. In her twelve-count third revised complaint, filed on April 19, 2007, the plaintiff seeks damages for negligence, bystander emotional distress and negligent infliction of emotional distress.
The defendants include Daniel Welling, M.D., Manchester Obstetrics-Gynecology Associates, P.C., Manchester Obstetrics-Gynecology Asociates, William Guinan, M.D., Mary Guinan and Manchester Memorial Hospital.
The plaintiff alleges the following facts. The defendants, Daniel Welling, M.D., Manchester Obstetrics-Gynecology Associates, P.C., Manchester Obstetrics-Gynecology Associates, William Guinan, M.D. and Mary Guinan provided medical care in regard to her pregnancy and delivery. On May 26, 2003, when the plaintiff was thirty-five weeks pregnant, she was admitted to the defendant Manchester Memorial Hospital by her physician, William Guinan, with complications from her pregnancy and placed on a fetal heart monitor. On May 27, 2003, she experienced a "gush of blood," after which an ultrasound was performed and a fetal heart monitor was placed. These tests showed that the decedent, Connor Brown, was in fetal distress, and, as a result, the plaintiff's physician, Daniel Welling, performed an emergency cesarean section on the plaintiff and the decedent was born. The decedent was transferred to the Manchester Hospital nursery and then to the neonatal unit of John Dempsey Hospital, where he died on June 5, 2003, "of complications resulting from intrauterine asphyxia caused by a placental abruption and/or vasa previa before his birth."
Counts one through four allege medical malpractice against the defendants, pursuant to General Statutes § 52-555, and are brought by the plaintiff as administratrix for the decedent's estate. In her individual capacity, the plaintiff brings counts five through eight claiming bystander emotional distress and counts nine through twelve claiming negligent infliction of emotional distress.
Manchester Memorial Hospital filed a motion to strike the eighth and twelfth counts of the third revised complaint and a supporting memorandum of law on May 4, 2007. The plaintiff filed a memorandum of law in objection to the motion to strike on May 11, 2007, and Manchester Memorial Hospital filed a reply on May 16, 2007. Daniel Welling, Manchester Obstetrics-Gynecology Associates, P.C., Manchester Obstetrics-Gynecology Associates, William Guinan, and Mary Guinan filed a motion to strike counts five, six, seven, nine, ten and eleven and a supporting memorandum of law on May 11, 2007, and the plaintiff filed a memorandum of law in objection to the motion to strike on May 17, 2007. The parties were heard at short calendar on January 5, 2009.
"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). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
In their respective motions to strike and supporting memorandum, the defendants argue that the plaintiff's bystander emotional distress claims should be stricken because such a claim is not permitted as a matter of law in the context of a medical malpractice action. The defendants further argue that the plaintiff's negligent infliction of emotional distress claims should be stricken because the plaintiff has failed to properly plead the elements of this cause of action. The plaintiff argues that Connecticut courts recognize a claim for bystander emotional distress in the medical malpractice context and that she has adequately pleaded her claim for negligent infliction of emotional distress.
There is a split of authority among the judges of the Superior Court as to whether a claim for bystander emotional distress may be brought in the context of a medical malpractice action. One line of cases follows the Supreme Court's decision in Maloney v. Conroy, 208 Conn. 392, 402-04, 545 A.2d 1059 (1988), holding that bystander emotional distress claims are not permitted in medical malpractice actions because of the social costs of allowing such an action to proceed. The court reasoned that allowing bystanders "at the bedside" of a patient to recover for witnessing malpractice would cause hospitals to limit visitation rights and would cause practitioners to focus too much attention on visitors rather than the patient. (Internal quotation marks omitted.) Id., 402-03. Other judges of the Superior Court have held that Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996), permits claims for bystander emotional distress to apply to all situations, including medical malpractice, provided that the "rule of reasonable foreseeability," as limited by four factual criteria, has been met. Clohessy arose from an automobile accident and did not involve medical malpractice.
"[A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (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, 237 Conn. 31, 56, 675 A.2d 852 (1996).
"It has been noted that `[s]ince Clohessy, there has not been a definitive ruling by our Supreme Court as to whether Connecticut recognizes a cause of action for bystander emotional distress in medical malpractice actions that allege specific discrete circumstances of contemporaneous injury and conduct causing the injury . . .' Martin v. Waradzin, Superior Court, judicial district of New Haven, Docket No. CV 97 0404366 (April 2, 1998, Hartmere, J.) ( 21 Conn. L. Rptr. 616). Consequently, the judges of the Superior Court are split on the issue, with some concluding that Maloney continues to bar claims of bystander emotional distress in the medical malpractice context; see, e.g., Baranowski v. St Mary Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 98 0148905 (February 20, 2001, Doherty, J.); and others concluding that such a claim is cognizable if the requirements set forth in Clohessy have been met. See, e.g., Pollard v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 98 0355354 (February 18, 1999, Skolnick, J.)." Sarfo-Darko v. Carrabba, Superior Court, judicial district of Hartford, Docket No. CV 05 5000930 (June 30, 2006, Tanzer, J.).
Even if Clohessy were to permit bystander emotional distress claims in certain medical malpractice situations, the Supreme Court has not addressed whether such claims may be brought in the childbirth context. A majority of the judges of the Superior Court have held that a mother is a participant, rather than a bystander, to the birth of her child, and therefore may not bring a claim for bystander emotional distress. In counts five through eight of the third revised complaint, the plaintiff alleges that she "suffered serious emotional injury beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances" due to the defendants' alleged breaches of the standard of care.
For cases holding that a mother is not a "bystander" to childbirth, see, e.g., Luminati v. Jaffe, Superior Court, judicial district of Litchfield, Docket No. CV 06 5001244 (October 29, 2007, Marano, J.); Sarfo-Darko v. Carrabba, Superior Court, judicial district of Hartford, Docket No. CV 05 5000930 (June 30, 2006, Tanzer, J.); Quintana v. Servetas, Superior Court, judicial district of Fairfield, Docket No. CV 04 4004127 (January 3, 2006, Skolnick, J.); McKiernan v. Komarynsky, 49 Conn.Sup. 161, 865 A.2d 1262 [ 38 Conn. L. Rptr. 246] (2004); Brown v. Bacall, Superior Court, judicial district of Hartford, Docket No. CV 01 0811432 (August 10, 2004, Booth, J.); Warycha v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 02 0465854 (March 29, 2004, Zoarski, J.T.R.); Misurale v. Cuteri, Superior Court, judicial district of Fairfield, Docket No. CV 01 383788 (March 13, 2003, Doherty, J.); Subiono v. Yordan, Superior Court, judicial district of New London, Docket No. 559573 (April 25, 2002, Martin, J.); Johnson v. Day Kimball Hospital, Superior Court, judicial district of Windham, Docket No. 063592 (January 24, 2001, Foley, J.); Manville v. Williams, Superior Court, judicial district of Tolland, Docket No. CV 97 65055 (April 8, 1998, Sullivan, J.) ( 21 Conn. L. Rptr. 654); Smith v. Humes, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0143884 (July 22, 1997, Ryan, J.); Golymbieski v. Equia, Superior Court, judicial district of Waterbury, Docket No. CV 95 0125140 (May 22, 1997, Fasano, J.) [ 19 Conn. L. Rptr. 563]. Cases permitting a mother to bring a claim for bystander emotional distress if she pleaded the four-factor test of Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996), include: DeRosa v. Master, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99 0067788 (August 24, 2000, Nadeau, J.) [ 27 Conn. L. Rptr. 714]; Huhn v. Goldstone-Orly, Superior Court, judicial district of Fairfield, Docket No. CV 98 0352421 (February 10, 2000, Melville, J.) [ 26 Conn. L. Rptr. 535].
The plaintiff, acting in her individual capacity, may not bring a claim for bystander emotional distress because she is properly characterized as a participant rather than witness to the alleged malpractice. Therefore, the defendants' motion to strike is granted on counts five through eight of the third revised complaint.
Although the majority of Superior Court decisions hold that a mother may not bring a claim for bystander emotional distress, "[a] cause of action 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 is different from a claim for bystander emotional distress." McKiernan v. Komarynsky, 49 Conn.Sup. 161, 865 A.2d 1262 [ 38 Conn. L. Rptr. 246] (2004). "A birthing mother is the patient and active participant, not a bystander in connection with the delivery of her child, hence [the] court does not recognize a claim for emotional distress as a bystander in such a situation. Rather, [the] court holds that 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." Subiono v. Yordan, Superior Court, judicial district of New London, Docket No. 559573 (April 25, 2002, Martin, J.).
"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). Our Supreme Court continually [has] 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 distress, if it were caused, might result in illness or bodily harm . . . Id., 446. Further, it has reasoned that a successful claim of negligent infliction of emotional distress essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear 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 fear 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 . . . Id., 447." (Internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552-53, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). See also Quintana v. Servetas, Superior Court, judicial district of Fairfield, Docket No. CV 04 4004127 (January 3, 2006, Skolnick, J.). (Applying requirements of negligent infliction of emotional distress in childbirth context.)
The plaintiff brings claims for negligent infliction of emotional distress in counts nine through twelve of the third revised complaint. The counts allege that the respective 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.
The plaintiff has adequately alleged that the defendants' conduct created an unreasonable risk of causing the plaintiff emotional distress, that it was foreseeable that the conduct would cause emotional distress, that this distress was severe enough to cause illness or bodily harm and that the defendants' conduct caused the plaintiff's distress.
Therefore, the defendants' motions to strike counts nine through twelve of the third revised complaint are denied.
So ordered.