Opinion
No. CV 09 6000860
January 25, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE, No. 117
FACTS
On March 3, 2010, the plaintiff, Lizzie Gorbea, individually and on behalf on her minor child, plaintiff Kelsey Gorbea, filed a revised six-count complaint against the defendants, Stanley P. Solinsky, M.D. and Shoreline Obstetrics Gynecology, P.C., alleging negligence and damages in connection with the birth and delivery of Kelsey Gorbea on September 14, 2006. The complaint alleges the following facts. The defendants undertook to provide medical care to the plaintiff Lizzie Gorbea with regard to her pregnancy and delivery of her baby. During the course of the delivery, the defendant Solinsky fractured the infant's skull, failed to do a "c-section," failed to recognize that the plaintiff Lizzie Gorbea was not a candidate for vacuum assisted delivery, failed to recognize the risks associated with such a delivery and failed to place the vacuum appropriately. As a result of this alleged negligence, the plaintiff Kelsey Gorbea suffered severe injuries, delays in development and permanent disabilities. Counts three and six of the complaint allege that the plaintiff Lizzie Gorbea suffered a direct emotional impact due to the birth of her disabled child, including mental anguish from giving birth to and caring for the plaintiff Kelsey Gorbea, and that both defendants knew or should have known the severe emotional harm that the plaintiff Lizzie Gorbea would suffer as a result of their negligence.
On March 23, 2010, the defendants filed a motion to strike counts three and six of the plaintiffs' complaint on the ground that the claims asserted are insufficient as a matter of law. The motion is accompanied by a memorandum of law. On April 6, 2010, the plaintiff's filed an objection to the motion to strike and memorandum in support of their objection.
DISCUSSION
"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). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
In the present case, the defendants argue that the claims asserted in counts three and six are insufficient as a matter of law on two grounds. First, Connecticut law does not permit a bystander who witnesses negligent medical care to another to recover for emotional distress. Second, the plaintiff Lizzie Gorbea was not a direct victim to the alleged negligence and thus cannot recover for negligent infliction of emotional distress. In response, the plaintiffs counter that neither count asserts a claim for bystander emotional distress, but rather for negligent infliction of emotional distress. They further point to several Superior Court decisions that permit a mother to assert a claim for negligent infliction of emotional distress for injuries that occur during the birthing process.
In Maloney v. Conroy, 208 Conn. 392, 393, 545 A.2d 1059 (1988), the Supreme Court held "that a bystander to medical malpractice may not recover for emotional distress . . ." The Supreme Court later held that "[u]nder certain circumstances . . . a tortfeasor may owe a legal duty to a bystander. Consequently, a tortfeasor who breaches that duty through negligent conduct may be liable for a bystander's emotional distress proximately caused by that conduct." Clohessy v. Bachelor, 237 Conn. 31, 46, 675 A.2d 852 (1996). Recognizing a subsequent split of authority among the judges of the Superior Court, this court has "adopt[ed] the view that Maloney is the controlling authority that prohibits claims for bystander emotional distress in medical malpractice actions." Subiono v. Yordan, Superior Court, judicial district of New London, Docket No. 559573 (April 25, 2002, Martin, J.).
"This court, however, recognizes the difference between claims for bystander emotional distress and claims for negligent infliction of emotional distress arising from a breach of a direct duty owed to the plaintiff by virtue of the physician-patient relationship." Id.
"A birthing mother is the patient and active participant, not a bystander in connection with the delivery of her child, hence this court does not recognize a claim for emotional distress as a bystander in such a situation. Rather, this court holds that a birthing mother may assert a claim for negligent infliction of emotional distress due to the harm she sustained as a result of medical malpractice during the delivery of her child." Id.
"To establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the distress." (Internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008), quoting Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
Here, in counts three and six of the revised complaint, the plaintiffs assert that the defendants' negligence was the cause of the plaintiff Lizzie Gorbea's mental anguish, and they knew or should have known the severe emotional harm that the plaintiff Lizzie Gorbea, would suffer as a result of their negligence. Viewing the complaint in a manner most favorable to sustaining its legal sufficiency, the court finds that counts three and six allege sufficient facts to support a claim for negligent infliction of emotional distress.
CONCLUSION
For the foregoing reasons, the court hereby denies the defendants' motion to strike counts three and six of the plaintiffs' revised complaint.