Opinion
No. HHB CV07 5004003
March 13, 2008
MEMORANDUM OF DECISION ON AMENDED MOTION TO STRIKE
The plaintiff Elise Muisener has brought this medical malpractice action against the defendant Harry Saranchak, M.D., the surgeon who performed a gall bladder operation on her when she was thirty-one weeks pregnant. She claims that the defendant cut into her common bile duct during the operation and did not recognize that he had done so, making her ill and necessitating further surgery. The infant plaintiff Delaney Muisener was born at thirty-four weeks. The infant plaintiff claims that the defendant's conduct caused the premature birth and other attendant injuries. The defendant has moved to strike the infant plaintiff's claim contained in the second count of the complaint.
THE MOTION TO STRIKE
The defendant initially filed a motion to strike on June 22, 2007, on the grounds that the defendant who was operating on the mother Elise Muisener for a non-obstetrical condition owed no duty to the infant Delaney Muisener. After that motion had been briefed by both sides the defendant filed an amended motion to strike on September 21, 2007, and thereafter on October 22, 2007, out of an abundance of caution, filed a request for leave to file the amended motion. The amended motion to strike alleges as an additional ground that the medical opinion letter appended to the complaint does not speak to the alleged malpractice of the defendant as it relates to the infant's claims, only as to the mother's claims, so that the second count is legally insufficient. On October 24, 2007, the plaintiff filed an objection to the request for leave. This court determines that the objection should be overruled so that any insufficiencies in the complaint can be fully dealt with at this relatively early stage of the case. Both sides have fully briefed their positions on the amended motion to strike, and the matter was submitted to the court on November 26, 2007.
THE STANDARDS FOR A MOTION TO STRIKE CT Page 4216
In deciding a Motion to Strike, the court must read the allegations in the contested pleading in the light most favorable to the pleader. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The purpose of a motion to strike is to contest the legal sufficiency of the allegations in the complaint and to challenge whether they state a claim upon which relief can be granted. Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The "inextricably bound concepts of proximate causation and duty" are ones that can be challenged by way of a motion to strike. Ganim v. Smith Wesson Corp., 258 Conn. 313, 364, 780 A.2d 98 (2001); Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001); Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998). In addition most trial courts that have considered the issue have held that a motion to strike may be used to challenge the sufficiency of the medical opinion letter under Conn. Gen. Stat. § 52-190a. See, Torres v. Carrese, 43 Conn. L. Rptr. 270, Conn.Super.Ct., Judicial District of New Haven, CV 06 5006514 (April 16, 2007, Jones, J.), and cases cited therein.
CAUSE OF ACTION FOR PRENATAL INJURIES
The Restatement (Second) of Torts § 869 recognizes that a child may maintain a cause of action for prenatal injuries if that child is born alive. This cause of action appears to be recognized in all jurisdictions that have considered the issue, except in Louisiana. See, generally, Liability for Prenatal Injuries, 40 A.L.R.3d 1222. The Restatement further explains that the cause of action must still contain the other elements of a common-law tort.
The rule [that a child born alive can sue for prenatal injuries] applies only if the act or conduct of the defendant that causes harm to the unborn child is itself tortious. Thus there is no liability for injury by unavoidable accident or as the result of conduct that is proper or privileged. The tortious conduct may be intended to cause harm to the child or the mother, or it may have been negligent with respect to either.
Restatement § 869, Comment on Subsection (1), b.
Although the alleged tortfeasors in the majority of cases are the obstetrician or pediatrician involved with the childbirth process, see, e.g. Hudak v. Georgy, 535 Pa. 152, 634 A.2d 600 (1993), that is not the only type of tortfeasor against whom an action will lie. See, CT Page 4217 Kalafut v. Gruver, 239 Va. 278, 389 S.E.2d 681 (1990) (negligent driver whose car collided with that of pregnant mother can be held liable for prenatal injuries to child thereafter born alive, who died shortly after premature birth).
Connecticut, too, recognizes that a child born alive can maintain an action against a tortfeasor for injuries that occurred prenatally. In re Valerie D., 25 Conn.App. 586, 590; 595 A.2d 922 (1991).
THE DUTY OF THE MOTHER'S SURGEON TO THE INFANT
The defendant asserts that the surgeon performing a procedure on the pregnant mother of the infant plaintiff has no duty to the infant in utero. This court is not persuaded. If it can be reasonably foreseeable to a negligent driver that a failure to use due care is likely to result in injury to an as-yet-unborn-child who is a passenger in a car, there is no logical reason why it is any less foreseeable to a surgeon, especially one operating near the uterus, that a failure to use due care is likely to result in injury to the infant in utero.
This case does not turn on the issue of whether the unborn child can be considered a "patient" of the physician. Rather it turns on the issue of forseeability. Just as a psychiatrist who has knowledge of a specific foreseeable risk to an identifiable third party has a duty to the third party, cf., Fraser v. United States, 236 Conn. 625, 674 A.2d 811 (1996), a surgeon who knows or ought to know of the pregnancy of his patient has a duty to adhere to the appropriate standard of care so as not to cause injury to the patient's fetus in the event the child is born alive.
THE MEDICAL OPINION LETTER
The medical opinion letter is silent on the issue of injury to the infant Delaney Muisener. The letter contains only the author's opinion that the defendant's conduct caused injury to the adult plaintiff. Although the complaint alleges that the medical malpractice of the defendant resulted in the premature birth of the infant and the injuries that occurred as a result of the prematurity, the opinion letter states only that a c-section delivery occurred at 34 weeks and does not state that this had anything to do with the defendant's conduct. Accordingly it fails to support the allegations in Second Count of the complaint.
CONCLUSION
The minor plaintiff has properly alleged a cause of action in the Second Count of the complaint against the mother's surgeon Harry Saranchak for prenatal injuries. However, the minor plaintiff has filed an insufficient medical opinion letter as to the Second Count and accordingly the Second Count is stricken.