Opinion
No. CV-08-5009111S
April 23, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (No. 107)
FACTS
The plaintiffs, Vera Burnette, Maeve Burnette and Mark Burnette, filed the six-count complaint against the defendants, Carl Boland and Cross County Neurology, P.C. (Cross County Neurology), on October 23, 2008. Vera Burnette's claim is brought through her father and next friend, Mark Burnette. In count one of the complaint, the plaintiffs set forth a "medical negligence" cause of action. The plaintiffs allege the following. Maeve Burnette, the wife of Mark Burnette and mother of Vera Burnette, was a patient of Boland, a neurologist, "from 2003 up until at least July 24, 2006." During that time, Boland prescribed Depakote, also known as valproic acid, for Maeve Burnette's seizures. Boland held himself out as: competent to treat epilepsy patients, including female epilepsy patients in their child birthing years, knowing the standard of care in treating such patients who were taking Depakote and being up to date on the medical literature on the subject of Depakote and its effect on the fetus. On July 24, 2006, Boland met with Maeve and Mark Burnette, who expressed that they wanted to have a child and were considering "getting pregnant." During that appointment, Boland prescribed several medications for Maeve Burnette, including Depakote. He was aware that Depakote carried a high risk of causing birth defects and fetal valproate syndrome. At that time, Boland dismissed Maeve Burnette from his care and informed her that he was moving his practice to Hartford. Boland was aware that Maeve Burnette did not have another neurologist and did not attempt to place her under the care of another neurologist.
On January 12, 2007, Maeve Burnette learned she was pregnant. Maeve Burnette's fetus was exposed to Depakote for several months during her pregnancy. On May 25, 2007, Vera Burnette was born with fetal valproate syndrome and numerous birth defects due to her exposure to Depakote. Boland was careless, negligent and departed from the standard of care in that he failed to remove Maeve Burnette from Depakote, failed to switch her medication, failed to recommend that she switch medications, failed to taper her off the Depakote, failed to consider the risks to the potential unborn fetus, failed to transfer her care, dismissed Maeve Burnette from his care knowing she could become pregnant while on Depakote and would not see another neurologist for several months, improperly continued to prescribe Depakote, failed to keep up to date and current on medical literature regarding the risk of birth defects and Depakote and failed to properly treat a female patient with epilepsy who was in her reproductive years. As a result, Vera Burnette has needed to undergo and incur costs for medical care and treatment, surgeries, hospitalizations, testing, monitoring, medication and therapy. In addition, she requires special care and needs now and into the future. Her earning capacity has been impaired, as has her ability to enjoy life and participate in life's activities.
In counts two and three, the plaintiffs Maeve and Mark Burnette, respectively, make claims against Boland for negligent infliction of emotional distress. They make the same allegations described above and further allege the following. Boland should have realized that his negligent conduct "involved an unreasonable risk of causing emotional distress to the parents of a child who was born with fetal valproate syndrome and/or birth defects" and that such distress might result in illness or bodily harm. Both Maeve and Mark Burnette experienced extreme emotional distress, fear, pain and suffering, which was "reasonable in light of the defendant's conduct." In addition, each has suffered an impairment in their ability to enjoy life and participate in life's activities.
In count four, Mark Burnette seeks consequential damages. He re-alleges the allegations set forth in count one and further alleges the following. Mark Burnette's naval career has been affected, he has suffered an impairment of earning capacity, and he has, or will, lose wages and benefits "[a]s a result and proximate cause of the defendant's negligence, and the severe and profound disabilities and limitations of his daughter, Vera Burnette." In addition, his life has been restricted and he has suffered an impairment in his ability to enjoy life and participate in life's activities.
In count five, Maeve Burnette seeks consequential damages. She re-alleges the allegations set forth in count one and further alleges the following. "As a result and proximate cause of the defendant's negligence, and the severe and profound disabilities and limitations of her daughter, Vera Burnette," Maeve Burnette suffered mental and emotional anguish and distress, fear, stress, pain and suffering. In addition, her life has been greatly restricted and she suffered an impairment in her ability to enjoy life and participate in life's activities.
Count five of the plaintiffs' complaint is titled "COUNT FIVE — CONSEQUENTIAL DAMAGES OF VERA BURNETTE." In their motion to strike, the defendants argue that a reading of the count reveals that it is actually a claim made by Maeve Burnette. The plaintiffs do not dispute this reading in their memorandum in opposition. The court will consider the claim set forth in count five as Maeve Burnette's, rather than that of Vera Burnette.
Finally, in count six of the plaintiffs' complaint, all three plaintiffs make a claim against the defendant Cross County Neurology based on the doctrine of respondeat superior. The plaintiffs repeat the allegations in counts one through five against Cross County Neurology and further allege the following. Boland was "an owner, officer, employee and/or agent of the defendant, Cross County Neurology, P.C., and was acting within the scope of his employment or agency for the benefit of his employer or superior." Therefore, any damages found against Boland "are also found against" Cross County Neurology under the doctrine of respondeat superior.
On December 22, 2008, the defendants filed a motion to strike counts two through five in their entirety, and paragraphs 37 through 197 from count six from the plaintiffs' complaint. The motion was accompanied by a memorandum of law. On January 6, 2009, the plaintiffs filed an objection to the defendants' motion to strike. That objection was accompanied by a memorandum of law. On June 5, 2009, the defendants filed a reply brief in further support of their motion to strike.
DISCUSSION
In their memorandum in support of their motion to strike, the defendants challenge the legal sufficiency of the plaintiffs' claims in counts two through six. Briefly, they move to strike counts two and three on the ground that they fail to set forth a cause of action for negligent infliction of emotional distress. In addition, they move to strike count four on the ground that the defendants did not owe a duty of care to Mark Burnette and the damages he seeks are impermissible. They further move to strike count five on the ground that it duplicates count two. Finally, the defendants argue that because paragraphs 37 through 197 of count six of the plaintiffs' complaint re-allege the claims asserted against Boland in counts two through five, the court should strike the corresponding claims against Cross County Neurology in count six.
I. Count Two
The defendants argue that Maeve Burnette's claim for negligent infliction of emotional distress is derivative of Vera Burnette's medical negligence claim and is actually a claim for bystander distress because Maeve Burnette was not placed at risk as a result of Boland's alleged negligent conduct. They further argue that bystander emotional distress claims are not viable in medical malpractice cases. The plaintiffs argue in response that Maeve Burnette has sufficiently alleged the requisite elements of a claim for negligent infliction of emotional distress because Boland owed her a direct duty based on their physician-patient relationship.
The appellate courts have not addressed the issue, but "[w]hen the judges of the Superior Court have addressed whether a mother may recover emotional distress damages for the injury . . . of a child resulting from medical malpractice in the prenatal . . . [period], the majority has recognized 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 . . . This majority has ruled that a mother is not a bystander [with respect to matters] that are incident to prenatal care . . ." (Citation omitted; internal quotation marks omitted.) Brown v. Bacall, Superior Court, judicial district of Hartford, Docket No. CV 01 0811432 (August 10, 2004, Booth, J.). When a plaintiff's claim appears to combine both bystander emotional distress claims for an injury to a child and negligent infliction of emotional distress for injuries suffered as a result of a breach of a direct duty owed to a mother, courts have stated that defendants should address this issue by a request to revise, and have denied motions to strike the claim if the plaintiff makes sufficient allegations of injuries to herself. See Chavarria v. Stamford Health System, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0175976 (June 28, 2001, Karazin, J.) ( 30 Conn. L. Rptr. 176); Casner v. Fine, Superior Court, judicial district of Hartford, at New Britain, No. CV 94 0462895 (May 22, 1995, Handy, J.) ( 14 Conn. L. Rptr. 570).
In the present case, the plaintiffs allege in paragraphs five through twenty-four and paragraph twenty-nine that Boland breached a duty he owed to Maeve Burnette based upon their physician-patient relationship. In paragraphs thirty-seven through forty-one they allege that Boland's negligence was a proximate cause of her extreme emotional distress, fear, pain and suffering. Although the plaintiffs allege in paragraph thirty-seven that Boland should have realized his conduct involved an unreasonable risk of causing emotional distress "to the parents of a child" born with birth defects, count two sets forth facts that support a claim for negligent infliction of emotional distress based on Maeve Burnette's own injuries resulting from Boland's alleged negligent conduct, and is not, therefore, derivative of Vera Burnette's cause of action.
"[I]n 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 . . . [T]he fear or distress experienced by the plaintiffs [must] be reasonable in light of the conduct of the defendants." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Insurance Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003).
In count two, the plaintiffs allege that Boland "should have realized that his negligent conduct . . . involved an unreasonable risk of causing emotional distress" that might result in illness or bodily harm to Maeve Burnette, that she suffered "extreme emotional distress, fear, pain, and suffering," which "was and is reasonable in light of the defendant's conduct," and that Boland's conduct was the proximate cause of the plaintiff's injuries. As such, the plaintiffs have alleged facts sufficient to support a claim for negligent infliction of emotional distress as to Maeve Burnette. Therefore, the court hereby denies the defendants' motion to strike count two.
II. Count Three
The defendants argue that Mark Burnette's claim for negligent infliction of emotional distress is properly characterized as a bystander emotional distress claim because Boland did not owe him a duty of care and he was not placed at any risk as a result of Boland's alleged negligence. The defendants further argue that bystander emotional distress claims are not recognized in the medical malpractice context. The plaintiffs argue that the court should recognize that Boland owed a duty to both parents since Boland knew the "parents were married and intending to conceive and he had every reason to anticipate that negligent treatment resulting in profound birth defects to the baby would be just as devastating to the father as to the mother." In addition, the plaintiffs argue that to consider a father outside the zone of danger in a pregnancy is "arbitrary and outmoded."
A "significant area of inquiry in claims of negligent infliction of [emotional] distress originating from third-party injury is whether the defendant has sufficiently pleaded a direct duty of care owed by the defendant to the plaintiff. A claim of negligent infliction of emotional distress requires that the duty between the parties must be direct in order for it to be viable as opposed to allegations of bystander emotional distress where a direct duty between the parties is unnecessary." (Internal quotation marks omitted.) Browne v. Kommel, Superior Court, judicial district of Stamford-Norwalk at Stamford, No. CV 08 5006167 (July 14, 2009, Pavia, J.) [ 48 Conn. L. Rptr. 248]. In the present case, in count three, the plaintiffs do not allege that Boland owed a direct duty to Mark Burnette. As such, Mark Burnette's claim for negligent infliction of emotional distress is properly characterized as a bystander emotional distress claim.
"The existence of a duty is a question of law . . . the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 478-79, 823 A.2d 1202 (2003).
The appellate courts have not ruled on the issue, and "[t]here 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 . . . 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." (Internal quotation marks omitted.) Brown v. Guinan, Superior Court, judicial district of Hartford, Docket No. CV 05 4012679 (January 14, 2009, Langenbach, J.T.R.) ( 47 Conn. L. Rptr. 85, 86).
In Maloney v. Conroy, supra, 208 Conn. 402, the court held that "with respect to such claims arising from malpractice on another person . . . there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another." (Internal quotation marks omitted.) Without specifically addressing bystander claims in the medical malpractice context, the court in Clohessy v. Bachelor, supra, 237 Conn. 46, held that "[u]nder certain circumstances, which are hereinafter delineated, we conclude that a tortfeasor may owe a legal duty to a bystander," and "bystander emotional distress is reasonably foreseeable." According to the court, "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 sibling . . . (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury . . . (3) the injury of the victim must be substantial, resulting in . . . 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." Id., 56.
This court need not conduct an in-depth analysis to determine whether the Clohessy rule of reasonable foreseeability applies in the medical malpractice setting because the plaintiffs have failed to allege facts sufficient to support a claim based on the standard set forth above. Mark Burnette's claim alleges that he is the father of Vera Burnette, who was born with numerous birth defects, that Boland should have known that his negligent conduct involved an unreasonable risk of causing emotional injury to Mark Burnette and he has suffered "extreme" and "severe" distress as a result of such conduct. The plaintiffs do not allege that Mark Burnette's injuries were caused by a contemporaneous perception of an event or conduct that caused the injury to his daughter or wife. As such, Mark Burnette's claim is insufficient to state a claim for bystander emotional distress. The court hereby grants the defendants' motion to strike count three of the plaintiffs' complaint.
Of note is the plaintiffs' characterization of the present case as a "wrongful birth case" in their reply brief to the defendants' motion to strike. Connecticut courts have recognized claims for wrongful birth. See Rich v. Foye, 51 Conn.Sup. 11, 976 A.2d. 819 [ 44 Conn. L. Rptr. 184] (2007) (alleging failure to properly disclose results and significance of prenatal testing); Chamberland v. Physicians For Women's Health, Superior Court, judicial district of Waterbury, Docket No. CV 01 0164040 (February 8, 2006, Gallagher, J.) ( 40 Conn. L. Rptr. 731) (alleging failure to detect birth defect during early stages of pregnancy); Burns v. Hanson, 249 Conn. 809, 734 A.2d 964 (1999) (alleging failure to diagnose pregnancy); Ochs v. Borelli, 187 Conn. 253, 445 A.2d 883 (1982) (alleging failed sterilization procedure). "[I]n a wrongful birth action, the parents' claim for emotional distress is not a claim for `bystander' injuries suffered as a result of witnessing negligent injury inflicted on their child. Rather, it is a claim that the parents have suffered emotional damages caused as result of a breach by the defendant . . . of a duty owed directly to them." Rich v. Foye, supra, 51 Conn.Sup. 20-21.
This duty owed to both parents is based upon a "constitutionally protected interest located within the zone of privacy created by several fundamental constitutional guarantees . . . to employ contraceptive techniques to limit the size of their family." (Citations omitted; internal quotation marks omitted.) Chamberland v. Physicians For Women's Health, supra, 40 Conn. L. Rptr. 736; see Rich v. Foye, supra, 51 Conn.Sup. 27 (invoking same constitutionally protected right, and denying motion to strike claim that defendant's negligence deprived plaintiffs of right to "make a decision concerning whether to continue the pregnancy with the knowledge that it will result in the birth of a child with significant abnormalities or to have an abortion"). In the present case, the plaintiffs do not allege in count three that Boland's conduct deprived Mark Burnette of a right to employ contraceptive methods or terminate a pregnancy. Thus, the plaintiffs' claim is distinguishable from the aforementioned wrongful birth cases.
III. Count Four CT Page 9479
The defendants argue that count four, though titled "consequential damages," is a claim for medical negligence because Mark Burnette has re-alleged the allegations of count one and, as such, must be stricken because Mark Burnette has not established that Boland breached a duty owed to him. In addition, the defendants argue that the damages sought by Mark Burnette, specifically lost wages and loss of earning capacity, are impermissible based on case precedent. The plaintiffs argue that Mark Burnette has a right of recovery for losses attributable to Boland's alleged negligence, and is entitled to be made whole.
"When a minor child is injured by the negligent act of a third party, two causes of action immediately spring into existence; first, the right of action by the child itself for the personal injuries inflicted upon it; and second, a right of action to the parent for consequential damages, such as loss of services and expenses, caused by the injury to the child. The right of the parent to recover is independent of the right of the child . . ." (Internal quotation marks omitted.) Krause v. Almor Homes, Inc., 147 Conn. 333, 335, 160 A.2d 753 (1960). This right of a parent to recover consequential damages for injuries suffered by their child as a result of the negligence of another is limited to loss of services and "expenses incurred and . . . reimbursement for the reasonable value of the care provided to their injured child if they sacrificed their own earnings from employment in rendering that care." Polio v. Derby Center CVS, Inc., Superior Court, judicial district of New Haven, Docket No. CV 95 0372045 (September 6, 1996, Freedman, J.). Such a claim may be brought "even though the child also brings a claim for injuries in the same action." Mercede v. Kessler, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0172682 (February 13, 2001, Karazin, J.) ( 29 Conn. L. Rptr. 246, 247).
In the present case, Mark Burnette's consequential damages claim seeks recovery for his alleged lost wages and benefits and an impairment of his earning capacity because his career has been affected by his daughter's injuries. These are not recoverable consequential damages for a parent whose child has been injured by an allegedly negligent third party. As such, the court hereby grants the defendants' motion to strike count four.
IV. Count Five
As to count five, the defendants argue that Maeve Burnette's claim for consequential damages duplicates her claim in count two and should be stricken because the allegations contained in count two are legally insufficient and the plaintiffs may not duplicate claims in the same complaint. Furthermore, the defendants argue that count five does not allege consequential damages, which "include loss of services and expenses caused by an injury to a child." The plaintiffs argue that count five is not duplicative, that Maeve Burnette has suffered losses attributable to the alleged negligence of Boland and is entitled to be made whole.
"Under our pleading practice, a plaintiff is permitted to advance alternative . . . theories of liability against one or more defendants in a single complaint." Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985). "It is enough for [a plaintiff] to tell his story as plainly and concisely as may be, and to state the different kinds of relief, one of which he thinks he may fairly claim." (Internal quotation marks omitted.) Id., 246. Indeed, Practice Book § 10-25 provides: "The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action."
Consequential damages are defined as "[l]osses that do not flow directly and immediately from an injurious acts, but that result indirectly from the act." Black's Law Dictionary (7th Ed. 1999). "Liability for consequential damages is determined through consideration of whether the tortfeasor owes a legal duty to the claimant." Bouchard v. Sundberg, Superior Court, judicial district of New Britain, Docket No. CV 99 0498124 (August 10, 2001, Winslow, J.) rev'd on other grounds, 80 Conn.App. 180, 834 A.2d 744 (2003).
In the present case, in count five, the plaintiffs allege that Boland committed medical negligence by breaching a duty he owed to Maeve Burnette based upon their physician-patient relationship. This claim is not duplicative of her negligent infliction of emotional distress claim in count two. Rather, it sets forth a claim for relief separate and apart from her claim in count two, as permitted by Practice Book § 10-25. As such, the court hereby denies the defendants' motion to strike count five.
V. Count Six
The defendants ask the court to strike paragraphs 37 through 197 from count six to the extent that the court strikes counts two through six, because in these paragraphs the plaintiffs re-allege the claims that they make against Boland in counts two through five and now bring them against Cross County Neurology.
"Although there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action . . ." (Internal quotation marks omitted.) Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079 (May 21, 2007, Tanzer, J.) ( 43 Conn. L. Rptr. 458).
In the present case, the plaintiffs have attempted to set forth four separate claims against Cross County Neurology in paragraphs 37 through 197. Paragraphs 37 through 77 attempt to set forth a claim for negligent infliction of emotional distress on behalf of Maeve Burnette. Paragraphs 78 through 118 attempt to set forth a claim of negligent infliction of emotional distress on behalf of Mark Burnette. Paragraphs 119 through 158 attempt to set forth a claim for consequential damages for Mark Burnette. Paragraphs 159 through 197 set forth a claim for consequential damages for Maeve Burnette. As such, these paragraphs are subject to a motion to strike.
"[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when the conduct occurs during the course of the employee's employment." Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003). "[V]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another]." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n. 16, 849 A.2d 813 (2004). "[A] fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee." Id., 693 n. 16.
In the present case, the plaintiffs' complaint alleges that "[a]t all times relevant" Boland was an "owner, officer, employee and/or agent" of Cross County Neurology and was acting within the scope of his employment or agency for the benefit of his employer. Therefore, the plaintiffs have alleged facts to support a cause of action under the doctrine of respondeat superior. As the court must strike Mark Burnette's claims for negligent infliction of emotional distress and consequential damages in counts three and four, respectively, the court must also grant the defendant's motion to strike as to corresponding paragraphs from count six, i.e. paragraphs 119 through 158. The claims made by Maeve Burnette against Cross County Neurology for negligent infliction of emotional distress and consequential damages are legally sufficient to state causes of action based on the doctrine of respondeat superior. Therefore, the defendants' motion to strike is hereby denied as to paragraphs 159 through 197 of count six.
CONCLUSION
Based on the foregoing, the court hereby grants the defendants' motion to strike counts three and four, and paragraphs 78 though 158 of count six of the plaintiffs' complaint. The court hereby denies the motion to strike counts two and five, and paragraphs 37 through 77 and 159 through 197 of count six.