Opinion
No. CV 05 4003079
August 15, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This is a medical malpractice action arising out of the delivery and birth of Daniel D'Attilo, plaintiff Cathy D'Atillo's minor child. Counts two and five of the revised complaint allege negligent infliction of emotional distress upon the plaintiff, Cathy D'Attilo. The defendants, Richard Viscarello, a physician, and Maternal-Fetal Care, P.C., move to strike counts two and five of the plaintiff's revised complaint on the grounds that Connecticut does not recognize a claim for bystander emotional distress arising in the context of medical malpractice. Plaintiff argues that such a cause of action is recognized but in the alternative argues that even if such a cause of action is not legally viable, counts two and five still state a cause of action in favor of the plaintiff, not as a bystander, but as a person to whom the defendants owed a direct duty of care.
On May 13, 2005, defendants filed this motion to strike directed at counts two and five of the plaintiff's complaint dated January 5, 2005. While this motion was still pending the plaintiff filed a revised complaint dated July 1, 2005. There is no discernable difference in the alleged facts of counts two and five. Therefore, pursuant to Practice Book § 10-61, the defendants' May 13, 2005 motion to strike is properly directed at counts two and five of the plaintiff's revised complaint.
For the reasons set forth below, the motion to strike is GRANTED.
Facts/Allegations
Counts two and five of the complaint first incorporate by reference the allegations of negligence contained in paragraphs one through seven of counts one and four respectively. Counts one and four allege malpractice against the defendants on behalf of plaintiff Daniel D'Attillo and includes many factual allegations of negligence as to him. The allegations contained in counts one and four regarding plaintiff Cathy D'Atillo are: (1), that the defendants undertook the care, treatment, monitoring, diagnosing and supervision of . . . the infant's mother Cathy D'Atillo, for pregnancy, labor, delivery and post delivery care; and (2) that the injuries sustained by the infant plaintiff were caused by the defendants in that they "failed to adequately and properly care for, treat, diagnose, monitor and supervise . . . Cathy D'Atillo, during pregnancy, labor, delivery and post natally;" (3) that the defendants failed to adequately and properly advise Cathy D'Atillo of the risks, CT Page 11953-v hazards and complications of delivery; (4) that the defendants failed to advise Cathy D'Atillo of alternatives; (5) that the defendant failed to give Cathy D'Atillo information so that she could give an informed consent. Counts two and five further allege that the defendants knew or should have known that their conduct involved an unreasonable risk of causing emotional distress and that the distress might result in illness or bodily harm; that it was foreseeable that the defendant's conduct would cause emotional distress; that it did cause emotional distress and that the results include painful, serious and permanent conditions.
The allegations regarding Cathy D'Atillo are listed as negligent acts which caused injury to the minor child. Complaint, count one, paragraphs 6(a), 6(o)-6(q) and count four, paragraphs 5(a), 5(n)-5(q).
It is clear from the complaint that the allegations relied upon to support the claim of emotional distress are those allegations of negligence as to the care of Daniel D'Atillo. By incorporating the allegations of negligence perpetrated upon the infant, plaintiff makes a claim for bystander emotional distress.
Standard of Review
The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994). The court must "examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000).
For purposes of the motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc., supra, at 383 n. 2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges "mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).
Discussion
The primary question before this court is whether the Supreme Court's decision in Clohessy v. Bachelor, 237 Conn. 31 (1996) overruled or limited the Supreme Court's prior decision in Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988). While reasonable jurists may disagree, this court holds that it did not. CT Page 11953-w
This question has not been addressed by our appellate courts. At the trial court level, a split of authority has developed, with the majority (though perhaps not vast majority) holding that Maloney is still controlling precedent in this context. See, Meister v. Windham Community Memorial Hospital, 36 Conn. L. Rptr. 876 (April 27, 2004) (Sferrazza, J.); Vecchio v. Rye Brook Obstetrics-Gynecology, P.C., J.D. of Stamford-Norwalk at Stamford, Docket No. CV 01 0185312 (June 19, 2002) (Lewis, J.T.R.) ( 32 Conn. L. Rptr. 310); Benton v. Taylor, Superior Court, J.D. of Hartford, Docket No. CV00 0595180 (November 24, 2000) (Beach. J.).
In Clohessy, the Court recognized, for the first time, a cause of action for bystander emotional distress under certain specified circumstances. Under Clohessy, "a bystander may recover for 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 a 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. at 56. The Court so held after a lengthy review of jurisprudence in other jurisdictions as well as the various policy considerations which theretofore had limited liability in this area. Id. at 45-52.
In Maloney, the Court had previously held that no claim for bystander emotional distress would lie in the medical malpractice context. Maloney, 208 Conn. at 402. Although the Court had not previously recognized such a cause of action in any context its decision was based largely upon policy considerations unique to medical malpractice claims. Id. at 402-03. In its analysis, the court stated: " Whatever may be the situation in other contexts where bystander emotional disturbance claims arise, we are convinced that, with respect to such claims arising from malpractice on another person, we should return to the position we articulated in Strazza." Id. It appears that with respect to claims arising outside the arena of medical malpractice, the Court recognized that there may be policy considerations which would some day result in the recognition of bystander emotional distress claims. In this vein, the Court then went on to discuss those policy considerations which are unique to medical malpractice claims, thereby distinguishing that cause of action from others. Id. This court recognizes that the Maloney Court also discussed the policy considerations related to recognizing any cause of action for bystander emotional distress and specifically rejected the analysis which was later largely adopted in Clohessy. However, it is significant to this court that in Clohessy, the policy considerations at issue with respect to medical malpractice claims were nowhere addressed.
Further, the Court in Clohessy discussed the Maloney decision at length. At the conclusion of its analysis, it explicitly overruled Strazza v. McKittrick, 146 Conn. 714 (1959) and did not do so with respect to Maloney, something it certainly could have done if that was its CT Page 11953-x intention.
Finally, and perhaps mostly, the court relies upon Perodeau v. Hartford, 259 Conn. 729 (2002). While the issues in Perodeau have no application to this case, the Court there was deciding the viability of a previously unrecognized cause of action in the State of Connecticut. In its analysis, the Court cited Maloney as follows: "[m]any harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. See, e.g., Maloney v. Conroy, supra, 208 Conn. 400-01 (looking beyond foreseeability, this court imposed limitations on the right of a bystander to recover for emotional distress that allegedly resulted from medical malpractice of doctors in their treatment of the plaintiff's . . . mother)." Id. at 756. (Emphasis added.) It would appear therefore that the Supreme Court still considers Maloney to be controlling precedent.
The motion to strike counts two and five, as bystander emotional distress claims, is granted.
Alternatively, the plaintiff argues that if counts two and five do not state a cause of action for bystander emotional distress, they should be construed as stating a claim for emotional distress which resulted from negligence as a result of the breach of duty owed directly to her as a patient. The defendants counter that the counts should be stricken on the grounds that even if the court construes counts two and five as alleging negligent infliction of emotional distress, rather than bystander emotional distress, the allegations are insufficient to support such a claim. See Drown v. Associated Women's Health Specialists, P.C., 33 Conn. L. Rptr. 562 (December 24, 2002, Pittman, J.).
There is a significant body of superior court decisions which have acknowledged an independent duty owed to the mother during the birth of a child on the basis that the mother is not a "bystander" to the birth of her child. See, Misurale v. Cuteri, J.D. of Fairfield at Bridgeport, Docket No. CV 01 383788 (March 13, 2003, Doherty, J.) (a mother is not a bystander with respect to matters that are incident to prenatal care and the delivery of her child); Brown v. Bacall, J.D. of Hartford, Docket No. CV-01 0811432S (August 10, 2004) (Booth, J.); Subiono v. Yordan, J.D. of New London, Docket No. 559573 (April 25, 2002) (Martin, J.); Johnson v. Day Kimball Hospital, Superior Court, J.D. of Windham at Putnam, Docket No. 063592 (January 24, 2001) (Foley, J.); Hyland v. State, J.D. of Hartford-New Britain at Hartford, Docket No. CV-91 03989565 (August 6, 1992) ( 7 Conn. L. Rptr. 222, 223) (Aurigemma, J.); Smith v. Humes, J.D. of Stamford-Norwalk at Stamford, Docket No. CV-95 01438845 (July 22, 1997) (Ryan, J.). CT Page 11953-y
There can be no viable claim to the contrary that as a patient giving birth, the defendants had an independent duty toward the mother, and indeed, the defendants acknowledge the existence of that duty. However, to the extent that these cases hold or are cited for the proposition that this independent duty can be breached through the negligent care of the child, this court disagrees.
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. To so hold would be, as urged by the defendants, a complete blurring of the line between those to whom a duty is owed and the manner in which that duty might be breached thereby establishing liability. See, Drown v. Associated Women's Health, No. CV 00 0159512 J.D. of Waterbury, (December 24, 2002) (Pittman, J.) ( 33 Conn. L. Rptr. 562) ("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. But the two may not be conflated.") Such a holding would ignore not only the Court's decision in Maloney but also would skirt the limitations established by its holding in Clohessy. Indeed, by simply recharacterizing the mother as a "participant" instead of a "bystander," these courts have carved out child birth as a situation where neither the requirements of Clohessy must be met nor the traditional notions of duty and breach of duty established.
There may come a time that the appellate courts view the unique situation presented by medical malpractice at the birth of a child as an appropriate context for the expansion of tort liability beyond that which is provided for under either Clohessy or Maloney. Until such time however, this court considers itself constrained by those decisions to not allow a claim for the negligent infliction of emotional distress upon the mother for injuries sustained as a result of negligent care of the child. The court notes that significant policy considerations may well mandate against such an expansion. Is the mother who experiences emotional distress as a result of negligence to her child at birth, more traumatized than the mother who loses her child to medical malpractice when the child is 12 years old? The latter situation implicates the very policy concerns at issue in Maloney, yet, at least from the perspective of the anguished mother, is difficult to distinguish from the former situation.
Thus, while this court agrees that the defendants had a duty to the plaintiff, independent of their duty to the infant, this court will not find that negligence in the care of the son can be the basis of a claim that they breached a duty to the mother. The question is therefore whether the complaint alleges allegations of negligence in the care of the mother which resulted in emotional distress.
Here, the complaint alleges negligent acts as to Cathy D'Atillo but only insofar as those acts caused injuries to her son. The complaint does not allege these, or any other acts of negligence as to Cathy D'Atillo as being the cause of her emotional distress. Thereafter, the complaint alleges, as is required, the essential elements of the emotional distress claim. As is, counts two and five fail to state a cause of action for the negligent infliction of emotional distress. The motion to strike is granted on this basis as well.
To sustain a cause of action for negligent infliction of emotional distress, the plaintiff must allege 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. Montinieri v. Southern New England Telephone Co. CT Page 11953-aa 175 Conn. 337, 341, 346 (1978); Subiono v. Yordan, J.D. of New London, Docket No. 559573 (April 25, 2002, Martin, J.); McKiernan v. Komarynsky, 49 Conn.Sup. 161, 165-67 (2004) ( 38 Conn. L. Rptr. 246).
SO ORDERED.
Kari A. Dooley, Judge CT Page 11953-z