Opinion
No. X07-CV03 0082430S
April 27, 2004
MEMORANDUM OF DECISION
The defendants, Windham Community Memorial Hospital, Mansfield OB/GYN Associates, P.C., and Dr. Philip H. Lahrmann, move to strike the fourth, fifth, and sixth counts of the amended complaint on the bases that Connecticut does not recognize a cause of action for bystander emotional distress with respect to the observation of injury to a loved one caused by medical malpractice, and that even if such a cause of action existed, the plaintiff, Laura Meister, has failed to allege all the elements of negligent infliction of emotional distress.
The amended complaint avers that the defendants engaged in medical malpractice in the prenatal care, delivery, and postnatal care of the newborn Elizabeth Anne Meister resulting in her death on May 2, 2001. Counts four through six allege that the defendants knew or should have known that this professional negligence "was likely to cause unreasonable risk of emotional distress to the plaintiff," mother of the deceased infant, which distress "might result in illness or bodily harm to the plaintiff."
The movants contend that the holding of Maloney v. Conroy, 208 Conn. 392 (1988), baring recovery for bystander distress arising out of perceived harm to a loved one because of medical negligence, survives the decision of Clohessy v. Bachelor, 237 Conn. 31 (1996), which recognized the viability of bystander distress claims generally. The court agrees.
In the Clohessy case, our Supreme Court discussed a line of cases involving bystander distress stemming from perceived physical injury to a family member. This line began with Strazza v. McKittrick, CT Page 1684, 146 Conn. 714 (1959). The Strazza case precluded recovery for those who observed, or believed they observed, serious injury to a family member. Id., 719. The line ended with the Maloney case, supra, which decision recognized the possibility that the holding in Strazza might be outdated "in other contexts" but emphatically reiterated that there can be no recovery for bystander emotional injury in the medical malpractice area. Maloney v. Conroy, supra, 402.
In permitting recovery for observer distress in Clohessy, our Supreme Court expressly overruled the Strazza case, Clohessy v. Bachelor, supra, 46. That decision, however, omitted any such expression with regard to the Maloney holding. The court infers from this disparity in treatment of the two decisions that our Supreme Court viewed the Maloney decision as remaining good law. It is inconceivable that the Clohessy Court intended it overrule Maloney implicitly while overturning Strazza explicitly having conjoined these cases for discussion purposes.
The Maloney decision anticipated the possible demise of Strazza in nonmalpractice cases. Maloney v. Conroy, supra 402. Consequently, the Supreme Court carved out malpractice cases in that decision, stressing the societal costs attendant to allowing such suits in particular. Id., 402 to 404. None of the factors peculiar to medical malpractice bystander distress was refuted or disavowed in Clohessy.
Consequently, the motion to strike must be granted on this ground.
Sferrazza, J.