Opinion
No. X07-CV03 4002170S
June 8, 2005
MEMORANDUM OF DECISION
The defendants, Dr. Ronald C. Archibold and Women's Health Center of Putnam move to strike the second and fourth counts of the revised complaint on the grounds that these counts attempt to assert liability for bystander emotional distress in the context of medical malpractice.
A motion to strike admits all well-pleaded facts and the pleadings are construed most favorably toward the pleader. Mingachos v. CBS, 196 Conn. 91, 108 (1985). The first count of the revised complaint is a wrongful death claim alleging that Sophia Inman, infant child of Frieda Mayor, died as a result of the professional negligence of Dr. Archibold, an obstetrician/gynecologist, surrounding the gestation, birth, and postpartum care of Sophia Inman. The first count is brought by Sophia's parents as co-administrators of her estate.
The second count is brought by Frieda Mayor, individually. She claims damages for emotional distress she has "suffered and will continue to suffer . . . as a result of her contemporaneous observation of the events and/or conduct which caused the injuries suffered by her child."
The third and fourth counts are against Women's Health Center, as employer of Dr. Archibold, and parallel the allegations of the first and second counts.
The movants contend that the holding of Maloney v. Conroy, 208 Conn. 392 (1988), which bars liability for bystander distress arising out of the observation of the harmful consequences of medical malpractice perpetrated upon a loved one, prevents recovery by Frieda Mayor under the second and fourth counts. At oral argument, the plaintiffs agreed that the bar against liability for bystander distress arising from medical malpractice as set forth in Maloney v. Conroy, supra, survives the decision of Clohessy v. Bachelor, 237 Conn. 31 (1996), which for the first time in Connecticut, recognized the viability of bystander emotional distress claims generally.
Instead, this plaintiff argues that her claims under the second and fourth counts are not bystander distress claims at all but are instead claims seeking compensation for the emotional distress she sustained in perceiving the unprofessional treatment of her person. However, the specific allegations of paragraph 12 of these counts, as recited above, belie this characterization of the nature of these counts. The second and fourth counts assert an entitlement to compensation for extreme emotional damages stemming from "contemporaneous observation of the events and/or conduct which caused the injuries suffered by her child." (Emphasis added.) This language can only be viewed as a claim for bystander distress and not arising from ill-treatment of the mother.
Consequently, the defendants' motion to strike is granted as to the second and fourth counts.
Sferrazza, J.