Opinion
No. CV-05-4003332-S
June 11, 2007
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE COUNTS THREE AND SEVEN
The defendants, Anne Bingham, M.D. and Crescent Street OB/GYN, have moved to strike Counts Three and Seven of the plaintiffs' Revised Complaint dated November 22, 2005 (the "Complaint") on the grounds that those counts fail to allege a cognizable cause of action. This is a medical malpractice action and in Counts Three and Seven the plaintiff, Lashekas White, alleges bystander emotional distress.
Allegations of the Complaint
The First Count of the Complaint alleges that commencing on January 29, 2003 and continuously until August 23, 2003, the defendant Anne Bingham, and her agents, servants and employees undertook the care, treatment, monitoring diagnosing and supervision of the infant plaintiff, Dariyon Drake, then in utero, and the infant plaintiff's mother, Lashekas White, for pregnancy, labor-delivery and post-natal care. It further alleges that while under the care of Anne Bingham, Dariyon Drake suffered severe and permanent injuries as a result of Anne Bingham's failure to exercise that degree of care and skill ordinarily and customarily used by physicians specializing in obstetrics in that she failed to take various actions including the following: perform clinical pelvimetry; take complete measurements during clinical pelvimetry; to recognize that the estimate fetal size already exceeded the birth weight of her first infant; to anticipate and diagnose macrosomia; to anticipate shoulder dystocia; to perform an episiotomy, to perform accepted maneuvers for shoulder dystocia; to perform a timely cesarean section; and permitted and/or used excessive traction, pressure, and/or torsion on the infant plaintiff following the recognition of dystocia.
The Third Count of the Complaint incorporates the allegations described above and further alleges:
CT Page 10201
7. At all times mentioned herein, the plaintiff, Lashekas White, is the mother of the infant plaintiff, Dariyon Drake.
8. The defendant, Anne S. Bingham and her 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.
9. The defendant, Anne S. Bingham and her servants, agents, apparent agents and/or employees, knew or should have known that their conduct was forseeable and likely to cause the plaintiff's mother emotional distress.
10. The fear and severe psychological and emotional distress suffered by the p1aintiff, Lashekas White, was reasonable in light of the conduct of the defendant, Anne S. Bingham and her servants, agents, apparent agents and/or employees.
11. 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.
Count Seven contains the same allegations as Count Three and is directed at Crescent Street OB/GYN.
Discussion of the Law and Ruling
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987).
The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
In Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), the Connecticut Supreme Court first recognized a cause of action for bystander emotional distress. At the time, the court had considered bystander distress claims in three prior cases: Strazza v. McKittrick, 146 Conn. 714, 156 A.2d 149 (1959); Amodio v. Cunningham, 182 Conn. 80, 438 A.2d 6 (1980); and Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988).
In Strazza a mother sought to recover for emotional distress resulting from her fear of injury to her child after a truck ran into a porch on which the mother believed her child was standing. The court concluded that the plaintiff could recover for emotional distress she experienced as a result of her being put in fear for her own safety, because she "was within the range of ordinary danger." However, it did not allow the claim for fear of injury to her child, relying on the prevailing law at the time that one could not recover "for injuries occasioned by fear of threatened harm or injury to the person or property of another. Strazza v. McKittrick, supra, at 719.
In Amodio a mother sought to recover for emotional distress she suffered after witnessing the deterioration of her daughter's health, and her death, due to medical malpractice. The Court in Amodio recognized that a "growing number of jurisdictions, beginning in 1968 with the California decision in Dillon [v. Legg, 68 Cal.2d 728 (1968)] . . . have recently recognized a cause of action for emotional distress in favor of a bystander to the negligently caused injury of another party." Amodio v. Cunningham, supra, 182 Conn. 87. The Court also observed that under Dillon "the requirement of `sensory and contemporaneous observance' does not require a visual perception of the impact although it does require that the plaintiff bystander otherwise apprehend the event." Id., 89-90. Without rejecting the foreseeability approach, the Amodio Court held that the plaintiff mother could not recover under Dillon because she did not have a contemporaneous sensory perception of the doctor's acts of negligence. "Merely observing the consequences of the defendant's negligence towards another person without perceiving the actual negligent behavior, however, is insufficient to maintain a cause of action for emotional distress to a bystander." Id., 90.
In Maloney v. Conroy, supra, the Court again considered the claim of bystander emotional distress within the context of a medical malpractice action in which the plaintiff sought damages for distress that she claimed to have sustained as a result of the alleged medical malpractice of the defendants in their treatment of her deceased mother. The plaintiff claimed that while she was present at her mother's bedside, she watched her mother's health deteriorate and that the defendants failed to heed her requests that they investigate various symptoms relating to her mother's deteriorating condition. The plaintiff conceded that her case was similar to that of the plaintiff in Amodio, however, she urged the Court to adopt the reasoning. Ochoa v. Superior Court, 39 Cal.3d 159, 703 P.2d 1, 216 Cal.Rptr. 661 (1985), which relaxed the contemporaneous sensory perception requirement stated in Dillon v. Legg, 68 Cal. 2d 728 (1968), in the context of a medical malpractice case.
In Maloney, the Court rejected the California Supreme Court's reasoning in Ochoa, stating:
To allow recovery by one, like the plaintiff, who has been more or less constantly "at the bedside" of the malpractice victim during the period of treatment is likely to cause hospitals and other medical treatment facilities to curtail substantially the extent of visitation of patients that is presently permitted. Such a response by providers of medical care to the risk of liability to visitors whose sensitivity and relationship to the patient may result in emotional disturbances from observing treatment of loved ones that they view as improper would seem inevitable if such claims were to become more frequent. The restriction of current liberal practices with respect to patient visitation in order to reduce the incidence of bystander emotional disturbance claims would be a regrettable social consequence of enlarging the right to recover for emotional disturbances based upon the impact of medical malpractice upon bystanders.
Another undesirable sequel that is likely to follow upon our creation of a duty to a patient's visitors or relatives is that medical personnel may feel obligated to respond to the usually uninformed complaints of visitors concerning the treatment of patients more for fear of stimulating emotional disturbances upon the part of the visitors than because of the merits of the complaint. Medical judgments as to the appropriate treatment of a patient ought not to be influenced by the concern that a visitor may become upset from observing such treatment or from the failure to follow some notion of the visitor as to care of the patient. The focus of the concern of medical care practitioners should be upon the patient and any diversion of attention or resources to accommodate the sensitivities of others is bound to detract from that devoted to patients.
Maloney v. Conroy, supra, at 402-03.
The Court in Clohessy expressly overruled Strazza and recognized a cause of action for bystander emotional distress under the following conditions: 1) the bystander must be closely related to the victim; 2) the bystander's emotional injury must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury; 3) the injury to the victim must be substantial, resulting in either 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.
A majority of Superior Court decisions hold that Maloney continues to bar bystander emotional distress in medical malpractice cases post- Clohessy. See, Pedro v. St. Mary's Hospital, Docket No. CV01 0163145 (November 13, 2001, Rogers, J.); McKiernan v. Komarynsky, 49 Conn.Sup. 161, 165 (2004, Lewis, J.T.R.) [ 38 Conn. L. Rptr. 246]; Meister v. Windham Community Memorial Hospital, Docket No. X0 CV 03 0082430S, 2004 WL 1098508 (April 27, 2004, Sferrazza, J.) [ 36 Conn. L. Rptr. 876], Blais v. New England Ctr. For Rehabilitation Hearing, LLC, Docket No. CV. 02 0067760, 2003 Ct.Sup. 3123, 34 Conn. L. Rptr. 319 (March 13, 2003, Foley, J.); Jacobs v. Kirshenbaum, Docket No. 02 0810386, 2004 WL 377057 (Feb. 2, 2004, Hennessy, J.T.R.); Sanada v. Town of Plymouth, Docket No. CV 03 0519045S, 2003 WL 21675509 (June 9, 2003, Cohn, J.) [ 35 Conn. L. Rptr. 179]; Wattman v. New Hartford Volunteer Fire Dept. Ambulance Service, Inc., Docket No. CV 00 0156795, 30 Conn. L. Rptr. 554 (October 10, 2001, Rogers, J.); Torres v. American Medical Response of Connecticut Inc., Docket No. CV 00 0802360 (September 6, 2001, Peck J.); Gousse v. Connecticut Children's Medical Center, Docket No. CV 99 0587675, 27 Conn. L. Rptr. 679 (August 9, 2000, Hennessey, J.); Benton v. Taylor, Docket No. CV 00 0595180S, 2000 WL 1868255 (Nov. 24, 2000, Beach, J.).
A minority of Superior Court decisions hold that Clohessy implicitly overruled Maloney, permitting a bystander to medical malpractice to recover for emotional distress so long as the four Clohessy requirements are met. See Desjardins v. William Backus Hospital, Docket No. 562748, 2003 WL 21061114 (April 25, 2003, Hurley, J.T.R.).
In Benton, supra, the court rejected the Desjardins view, stating:
I disagree with those cases which hold that Maloney no longer prohibits bystander emotional distress claims in the context of medical malpractice actions. As noted above, Maloney was not decided on the ground that there was no contemporaneous perception of the alleged malpractice, nor even on the ground that bystander distress claims were generally prohibited. Rather, the court specifically held that regardless of the validity of bystander distress actions in other contexts, the cause of action cannot be maintained, for the policy reasons mentioned therein, in the context of medical malpractice. It is clear, it seems, that Clohessy answered the question of the validity of bystander distress actions in other contexts, but it would not seem to have done anything to affect the invalidity of bystander distress claims in the context of alleged medical malpractice.
Similarly, the court in Meister, supra, stated:
It is inconceivable that the Clohessy Court intended to 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.
This court agrees with the views expressed by the courts in Meister and Benton. Maloney continues to bar claims for bystander emotional distress in medical malpractice cases regardless of whether the conditions of Clohessy are satisfied.
In Murillo v. Seymour Ambulance Association, 264 Conn. 474, 480-81 (2003), the Court cited and discussed Maloney as "underscoring" its conclusion that, as a matter of public policy, a hospital owes no duty to a nonpatient bystander to prevent foreseeable injury as a result of the bystander's observation of medical proceedings on a close relative.
Even if the plaintiffs' interpretation of Clohessy is correct, they have failed to allege contemporaneous sensory perception of the event or conduct that has caused her distress. The contemporaneous perception requirement demands that the plaintiff have a contemporaneous awareness of a distinct event or conduct which caused immediate sever or life threatening harm. Desjardins, supra. The plaintiff White has failed to allege any discernable event to trigger her claim, or that she was aware that the defendant's conduct, mainly alleged to be failures to act, rather than positive acts, was causing harm.
In the Memorandum of Law opposing the motion to strike, the plaintiffs insert new allegations which are not present in the complaint. For example, the plaintiffs refer to Lashekas White's perception that her health care providers were not properly caring for her or her infant, and the presence of "panic and chaos" in the delivery room. In ruling on a motion to strike, the court is limited to facts alleged in the complaint. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
In Vanase v. State, Docket No. CV 000554764, 2001 WL 34093940 (Feb. 1, 2001, Hurley, J.T.R.) [ 28 Conn. L. Rptr. 665], the court granted the defendant's motion to strike the plaintiff-mother's bystander emotional distress claim pertaining to the death of the infant son after her labor and delivery. The mother claimed "continuous actions of negligence by the defendant," rather than a sudden event or specific action. She alleged that the defendant failed to diagnose serious complications arising during her pregnancy and the defendant's failure to timely treat those complications resulted in the death of her infant son. The court stated that the foregoing allegations did not meet the second prong of the Clohessy test, requiring a showing that the bystander's emotional injury was caused by the contemporaneous sensory perception of the event or conduct that caused the injury. The allegations in this case similarly fail to allege contemporaneous sensory perception of the conduct which caused the injury.
The plaintiffs ask the court to alternatively find that the allegations of the Third and Seventh Counts of the complaint set forth a cognizable cause of action of Lashekas White for negligent infliction of emotional distress. However, those counts allege only breaches of the standard of care with respect to the treatment of Dariyon Drake, and, therefore, only Dariyon Drake can recover for any emotional distress caused by those breaches.
Permitting a mother to recover emotional distress damages as a result of negligent acts directed only to her child is, in essence, permitting a bystander emotional distress claim. Other Superior Court have reached this same conclusion. See, i.e. Rodney v. Solinski, Docket No. X04 CV 04 4004680S, 2006 WL 852323 at *1, (March 10, 2006, Beach, J.) [ 39 Conn. L. Rptr. 778]; D'Attilo v. Viscarello, Docket No. CV 05 4003079, 2005 WL 2206784 at *2 (Aug. 15, 2005, Dooley, J.) [ 33 Conn. L. Rptr. 562]; Drown v. Assoc. Women's Health Specialists, P.C., Docket No. CV 00 0159512, 2002 WL 31943387 at *1 (Dec. 26, 2002, Pittman, J.).
For the foregoing reasons, the Motion to Strike Counts Three and Seven is granted.