Opinion
No. CV-04-4004127 S
January 3, 2006
MEMORANDUM OF DECISION
Before the court is the defendant's motion to strike count three of the plaintiffs' revised complaint on the grounds that Connecticut does not recognize a claim for bystander emotional distress in the medical malpractice context.
On July 7, 2005, the plaintiffs, Ana and Ismael Quintana, individually and on behalf of their infant daughter, Jennifer Quintana, filed an eight-count revised complaint against the defendants, Gregory Servetas, a physician specializing in obstetrics, gynecology and maternal fetal medicine, and St. Vincent's Hospital. This action arises out of injuries the plaintiffs allegedly sustained as a result of the defendants' negligence during the course of the pregnancy, labor of the defendant mother, and delivery of the infant plaintiff.
The motion to strike is brought only by Servetas.
In count one, the plaintiffs allege that, as a result of Servetas's negligence, the infant plaintiff sustained permanent injuries. Count two alleges that Servetas failed to obtain Ana Quintana's informed consent about the risks associated with pregnancy, labor and delivery. In count three, the plaintiffs allege that Ana Quintana suffered emotional distress as a result of Servetas's conduct. They further allege in count three that Servetas and his agents 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 to Ana Quintana.
In count four, the plaintiffs allege medical expenses for the care and treatment of the infant plaintiff. Counts five through eight are brought against the defendant, St. Vincent's Medical Center, and allege, respectively, medical negligence, failure to obtain Ana Quintana's informed consent, emotional distress on behalf of Ana Quintana, and medical expenses.
On August 29, 2005, Servetas filed a motion to strike count three of the revised complaint, accompanied by a memorandum in support. On September 12, 2005, the plaintiffs filed a memorandum in opposition.
"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). See Practice Book § 10-39. In ruling on a motion to strike, the trial court construes the facts in the complaint in the manner most favorable to sustaining its legal sufficiency. Id. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court] read[s] the allegations broadly, rather than narrowly." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). Furthermore, "[i]n ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
Servetas moves to strike count three on the grounds that the plaintiffs fail to state a claim upon which relief may be granted. In support of the motion, Servetas argues, citing Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), that Connecticut does not recognize bystander emotional distress claims in the context of medical malpractice actions. Servetas further argues that in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), the Supreme Court recognized causes of action for bystander emotional distress claims, but in limited circumstances under the rule of reasonable foreseeability. Servetas contends that Clohessy did not overrule Maloney, and therefore, Maloney is the controlling authority. Finally, Servetas argues that even if Connecticut recognizes bystander emotional distress claims, the plaintiffs failed to meet the contemporaneous perception requirement because Ana Quintana was unaware of any alleged negligent conduct at the time of the infant plaintiff's delivery.
In Maloney v. Conroy, supra, 208 Conn. 393, the Supreme Court held that "a bystander to medical malpractice may not recover for emotional distress . . ."
The Supreme Court, in Clohessy v. Bachelor, supra, 237 Conn. 56-57, recognized for the first time a cause of action for bystander emotional distress under certain circumstances. In Clohessy, the plaintiff mother and brother sought damages for emotional injuries they allegedly suffered as a result of the emotional shock of witnessing the defendant's automobile negligently strike and kill Brendan Clohessy. Clohessy v. Bachelor, supra, 237 Conn. 32-33.
The plaintiffs counter that they have appropriately alleged, in count three, a valid cause of action for negligent infliction of emotional distress. The plaintiffs argue that Ana Quintana was not a bystander at the birth of her daughter, and cites many superior court decisions recognizing that a mother is not a bystander at her child's birth. The plaintiffs contend that Connecticut courts have "consistently ruled that a woman whose child was born with injuries due to negligence has an emotional distress claim emanating from the direct duty owed to the mother." They also argue that Ana Quintana was a participant and a patient, and that Servetas owed her a duty of proper obstetrical care during childbirth.
There is a split of authority among the Superior Courts whether a claim for bystander emotional distress is legally sufficient in the medical malpractice context. A majority of decisions hold that Maloney's preclusion of bystander emotional distress claims, in the medical malpractice context, was not overruled by Clohessy v. Bachelor, supra, 237 Conn. 31. See Misurale v. Cuteri, Superior Court, judicial district of Fairfield, Docket No. CV 01383788 (March 13, 2003, Doherty, J.). Other cases hold that Clohessy overruled Maloney and permitted bystander emotional distress claims in the medical malpractice context, if the plaintiff has sufficiently pleaded the required elements discussed in Clohessy. See Turner v. Obstetrics Gynecology Associates, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0169616 (September 6, 2001, D'Andrea, J.). This court, in Pollard v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 98 0355354 (February 18, 1999, Skolnick, J.), has already recognized a claim for bystander emotional distress in the medical malpractice context, as long as the plaintiff pleaded the required elements of Clohessy.
See also Guarino v. Huttler, Superior Court, judicial district of New Haven, Docket No. CV 01 01456624 (August 23, 2002, Booth, J.); Rodrigues v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. CV 01 0343892 (August 13, 2002, White, J.).
See also Derosa v. Master, Superior Court, judicial district of' Ansonia-Milford at Milford, Docket No. CV 99 067788 (August 24, 2000, Nadeau, J.) ( 27 Conn. L. Rptr. 714, 715); 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, 537).
Despite this split of authority, the plaintiffs' claims in count three, however, are not based upon claims of a bystander, but are claims of a mother during childbirth. Several Superior Court decisions have recognized that a mother is not a bystander at the birth of her child, and have treated the mother's claim for bystander emotional distress arising from injuries to her child during birth as a claim for negligent infliction of emotional distress. See McKiernan v. Komarynsky, 49 Conn.Sup. 161, 167, 865 A.2d 1262 (2004).
See also Brown v. Bacall, Superior Court, judicial district of Hartford, Docket No. CV 01 0811432 (August 10, 2004, Booth, J.).
Both Misurale v. Cuteri, supra, Superior Court, Docket No. CV 01 0383788, and D'Attilo v. Viscarello, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4003079 (August 15, 2005, Dooley, J.) ( 39 Conn. L. Rptr. 778), discuss the claim of negligent infliction of emotional distress brought by a mother during the birth of her child. The court, in Misurale, stated that "this court recognizes 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 . . . Numerous Superior Court cases have considered 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 of the Superior Court cases that have considered the issue have ruled that a mother is not a bystander [with respect to matters] that are incidental to prenatal care and the delivery of her child." (Citation omitted; internal quotation marks omitted.) Misurale v. Cuteri, supra, Superior Court, Docket No. 0383788. The court was "persuaded by the majority view that a mother giving birth may assert a claim for negligent infliction of emotional distress based upon the harm she suffers as a result of the medical malpractice during the delivery of her child." Id.
In D'Attilo, the court recognized that a duty is owed to the mother during child birth, and that a breach of the duty might result in a claim for negligent infliction of emotional distress. D'Attilo v. Viscarello, supra, 39 Conn. L. Rptr. 780. The court, however, would not find that the negligence in the care of the infant can be the basis of a claim that the duty owed to the mother was breached. Id. The court stated, "[h]ere, the complaint alleges negligent acts as to [the mother] but only insofar as those acts caused injuries to her [infant] son. The complaint does not allege these, or any other facts of negligence as to [the mother] as being the cause of her emotional distress." Id.
To succeed on a claim for negligent infliction of emotional distress, a plaintiff must prove "that the defendant should have realized that [his] conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . [T]he fear or distress experienced by the plaintiffs [has to] 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." (Internal quotation marks omitted.) McKiernan v. Komarynsky, supra, 49 Conn.Sup. 165.
In count three, the plaintiffs allege that Servetas and "his servants, agents, apparent agents and/or employees, 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. The defendant, Gregory Servetas . . . knew or should have known that [his] conduct was foreseeable and likely to cause the plaintiff's mother emotional distress. The fear and severe psychological, physiological and emotional distress suffered by the plaintiff, Ana Quintana, was reasonable in light of the conduct of the defendant, Gregory Servetas and [his] servants, agents, apparent agents and/or employees. The conditions described above are painful, serious and permanent in their nature and in their effects, and have impaired the plaintiff's ability to carry on and enjoy life's activities."
Unlike the plaintiff mother in D'Attilo v. Viscarello, supra, 39 Conn. L. Rptr. 778, the plaintiff mother in the present case does allege, in count three, the required elements for negligent infliction of emotional distress, and that the defendant's acts were the likely cause of her emotional distress. For that reason, defendant Servetas's motion to strike count three is denied.