Opinion
No. CV 07 5010811
April 8, 2008
MEMORANDUM OF DECISION
Motion to Strike #114
The plaintiffs, Reynaldo Seda, Sr. and Rosa Perez, with the estate of their son, filed a six-count wrongful death action against the defendants, Maxim Healthcare Services and Phyllis Cox-Garvey, on May 25, 2007, with a certificate of good faith pursuant to General Statutes § 52-190a. The action arises out of the alleged negligence and negligent infliction of emotional distress of the defendants, resulting in the wrongful death of Reynaldo Seda, Jr., who was afflicted with Hunter's Syndrome. The plaintiffs allege that Ms. Cox-Garvey, employed by Maxim Healthcare Services as a night-time nurse, failed properly to monitor their son's condition and did not ensure that his trachea tube was in place. When the plaintiffs discovered their son the next morning on May 30, 2005, his trachea tube was not connected, and he ultimately died on May 31, 2005 as a result of cardiac arrest, shock, respiratory arrest, upper airway obstruction and tracheostomy displacement.
On September 5, 2007, the defendant Cox-Garvey filed a motion for summary judgment as to counts one, three and five asserting the claims were barred by the statute of limitations. The court (Hale, J.T.R) granted said motion on October 9, 2007, as to defendant Cox-Garvey.
On October 5, 2007, the defendant, Maxim Healthcare Services, filed a request to revise the plaintiffs' complaint. On October 18, 2007, the plaintiffs filed a motion to amend their complaint, attaching a revised complaint containing an additional count. In response, the defendant, Maxim Healthcare Services, filed on November 9, 2007, a motion to strike counts three, five and seven of the plaintiffs' amended complaint, dated October 16, 2007. A memorandum of law in support of the motion to strike was attached thereto. Thereafter, the plaintiffs filed a motion to amend their complaint, dated December 7, 2007.
On December 17, 2007, the plaintiffs filed a memorandum in opposition to Maxim Healthcare Services' motion to strike. Maxim Healthcare Services filed a reply brief on December 13, 2007. The matter was heard before this court on December 17, 2007.
DISCUSSION CT Page 5676
"The proper procedural vehicle to challenge the legal sufficiency of a proposed pleading is a motion to strike . . ." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256, 905 A.2d 1165 (2006). "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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).The Operative Complaint
The first issue to determine is whether the amended complaint filed October 18, 2007, or the second amended complaint, dated December 7, 2007, is the operative complaint for purposes of the motion to strike. The second amended complaint clearly adds additional facts not pleaded in the first amended complaint, which the defendant argues is the operative complaint. The defendant, however, has failed to object to the second amended complaint pursuant to Practice Book § 10-60(a)(3). Practice Book § 10-60 provides, in relevant part: "[A] party may amend his or her pleadings . . . at any time subsequent to that stated in [Practice Book § 10-59] in the following manner: . . . (3) By filing a request for leave to file such amendment, with the amendment appended . . . If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party." Given this provision and the reasoning in other superior court decisions, this court deems the second amended complaint to be the operative complaint for purposes of the motion to strike. See, e.g., Harris v. Board of Education, Superior Court, judicial district of Middlesex, Docket No. CV 99 0090095 (May 4, 2000, Gordon, J.) (given the defendant's failure timely to object to the amended complaint, the court considered the plaintiff's amended complaint as the operative complaint for purposes of the motion to strike); Flores v. Viveros-Velazquez, Superior Court, judicial district of Windham, Docket No. CV 063971 (November 21, 2000, Foley, J.); Conroy Electric, LLC v. Dos Santos, Superior Court, judicial district of Hartford, Docket No. CV 06 5005023 (July 30, 2007, Wiese, J.). Indeed, the court in Stromberg v. Hamilton Rehabilitation Healthcare Center observed that the amended complaint " may be the operative complaint by operation of law." (Emphasis added.) Superior Court, judicial district of Hartford, Docket No. CV 04 0833616 (March 13, 2006, Shortall, J.), citing Darling v. Waterford, 7 Conn.App. 485, CT Page 5677 487, 508 A.2d 839 (1986) (the court had no discretion, absent extraordinary circumstances, to refuse a request to amend where no objection is filed).
Moreover, the court finds that the defendant is not prejudiced by the granting of the motion because it addresses the second amended complaint in its reply to the plaintiff's memorandum in opposition to its motion to strike. See Baranowski v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 98 0148905 (August 16, 2000, Hodgson, J.) [28 Conn. L. Rptr. 79]. Like the Stromberg court, this court further finds that it serves the interest of justice by permitting "the plaintiff to have the legal sufficiency of his claims adjudicated on the basis of his best expression of them." (Internal quotation marks omitted.) Stromberg v. Hamilton Rehabilitation Healthcare Center, supra, Superior Court, Docket No. CV 04 0833616. Consequently, the court deems the second amended complaint the operative complaint for purposes of the motion to strike.
Negligent Hiring, Training, Supervision and Retention Counts
With respect to counts three through six, the defendant claims that the plaintiffs have failed to allege a factual basis sufficient to conclude that its employee's alleged negligence was foreseeable. The plaintiffs argue that the second amended complaint is legally sufficient and does state sufficient facts.
Counts three through six are labeled, respectively, as follows: Count 3, Direct negligence of Maxim-Negligent Hiring; Count 4, Direct Negligence of Maxim-Negligent Training; Count 5, Direct Negligence of Maxim-Negligent Supervision; Count 6, Direct Negligence of Maxim-Negligent Retention. The counts are all identical to count three of the amended complaint, except for the addition of five new paragraphs. Those paragraphs in count three are as follows:
"1. Paragraph 1-25 of the First Count are hereby incorporated as if set forth herein; 2. The Defendant, Maxim had a duty of care to properly hire its employees for the position that was held by Cox-Garvey, which Maxim breached; 3. The Defendant, Maxim, failed to properly hire Cox-Garvey in it was foreseeable to Maxim that the harm that occurred to the deceased would likely result from the hiring of Cox-Garvey for her position; 4. The Defendant, Maxim, knew or should have known of Cox-Garvey's employment history and her inability to properly perform the duties required on the overnight shift; 5. The Defendant Maxim, was negligent in their hiring practices, specifically when they hired Cox-Garvey, despite its knowledge of her employment history and current employment schedule." (Pl.s' Second Amended Compl., Count Three ¶¶ 1-5.) In each subsequent count, the word "hire" is switched to match the corresponding negligence claim of that count, alleging that the defendant did not properly train, supervise or terminate Cox-Garvey.
"A common-law claim in negligent hiring exists in any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment." White v. Wal-Mart Stores, Inc., Superior Court, judicial district of Hartford, Docket No. CV06 6000345 (May 1, 2007, Wagner, J.T.R.); see also Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982). "In any determination of whether even a special relationship should be held to give rise to a duty to exercise care to avoid harm to a third person, foreseeability plays an important role." Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811, cert. denied, 519 U.S. 872, 117 S.Ct. 188, 136 L.Ed.2d 126 (1996). "Our Superior Court has interpreted this foreseeability requirement as one in which the employer knew or should have known of the employee's propensity to engage in the alleged harmful conduct." White v. Wal-Mart Stores, Inc., supra, Superior Court, Docket No. CV 06 6000345.
In this matter, the plaintiffs clearly allege in their second amended complaint that the defendant "failed to properly hire Cox-Garvey in it was foreseeable to Maxim that the harm that occurred to the deceased would likely result from the hiring of Cox-Garvey" and "knew or should have known of Cox-Garvey's employment history," among numerous other claims. The defendant, however, argues that the plaintiffs merely state legal conclusions, not factual allegations sufficient to withstand a motion to strike. "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Read in a light most favorable to the plaintiffs, the plaintiffs sufficiently plead facts for negligent hiring; and thus, this court denies the motion to strike count three.
The defendant also seeks to strike counts four and five, alleging negligent training and supervision, respectively. "[T]he elements for negligent supervision are nearly the same as those for negligent hiring, the only difference being at what point the defendants became aware of the actor's propensity for tortious conduct." Hearn v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 02 0466339 (April 2, 2007, Licari, J.). "The majority of Superior Court decisions considering the issue have required the plaintiff in a negligent supervision action to plead and prove injury by the defendant's negligence in failing to properly supervise an employee who the defendant had a duty to supervise and who the defendant knew or should have known would cause the injury." (Internal quotation marks omitted.) Id. "Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability." Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0456879 (July 16, 2004, Arnold, J.)
Based on the allegations in the complaint, the plaintiffs clearly allege that the defendant was the employer of Cox-Garvey; that Cox-Garvey was hired to care for their son; that the defendant did not supervise or properly train Cox-Garvey; that the defendant did not ensure that Cox-Garvey was properly rested; that it failed to follow its own care plan when its agents allegedly improperly checked the plaintiffs' decedent's vital signs; that it failed to follow its own clinical manual; that it breached its duty of care by not properly training and supervising; and that due to this improper training and supervision, the resulting harm was foreseeable. Accordingly, this court denies the motion to strike counts four and five.
The defendant also seeks to strike count six, alleging negligent retention. "The cause of negligent retention has not been recognized by any Appellate Court in this state. It has been recognized in other states and several trial courts in this state. Negligent retention occurs when during the course of employment, the employer becomes aware of problems with an employee that indicates his unfitness and the employer fails to take further action." Foster v. Westbrook Lodge of Elks #1784, Superior Court, judicial district of Middlesex, Docket No. CV 06 5001631 (April 11, 2007, Aurigemma, J.). The plaintiffs in this matter do allege in their complaint that "[t]he defendant Maxim, was negligent in their retention practices, specifically when Maxim improperly retained Cox-Garvey, when it knew Cox-Garvey had a propensity to commit negligent acts." Even viewed in a light most favorable to the plaintiffs, the allegations in the second amended complaint are not sufficient to withstand the defendant's motion to strike. The plaintiff does not allege that the employer became aware of any problems with Cox-Garvey and failed to take steps to remedy the problems or terminate Cox-Garvey's employment. The court grants the motion to strike count six.
Negligent Infliction of Emotional Distress
Finally, the defendant argues that counts eight and ten, alleging negligent infliction of emotional distress, should be stricken because Connecticut does not recognize bystander emotional distress causes of action in the context of medical malpractice. Further, the defendant argues, even if Connecticut does recognize such a claim, the plaintiffs failed to satisfy the "sensory perception" element, and there was no professional-patient relationship that existed between the parents and Maxim. The plaintiffs, in their objection, cite no case law to support their position that such a cause of action is proper.
Instead, the plaintiffs, Reynaldo Seda, Sr. and Rosa Perez, in their individual capacity as parents, allege simply that the defendant's negligent conduct, specifically, the failure adequately to monitor their son's condition, resulted in severe emotional distress consisting of grief, guilt and depression. The plaintiffs do not allege that they were present when the alleged negligent conduct occurred, and thus viewed in a light most favorable to the plaintiffs, the facts do not indicate that the plaintiff's emotional distress occurred contemporaneously with the negligent conduct.
"[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 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." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003).
Our Supreme Court specifically examined the issue of bystander emotional distress resulting from medical malpractice in Amodio v. Cunningham, 182 Conn. 80, 438 A.2d 6(1980) and Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988). In Maloney, the plaintiff had sought damages for bystander emotional distress caused by watching her mother suffer and eventually die from "the negligence of the defendants in failing to care for [the mother] in a reasonably competent manner . . ." Maloney v. Conroy, supra, 208 Conn. 394. Affirming its decision in Strazza v. McKittrick, 146 Conn. 714, 156 A.2d 149 (1959), the court held "that a bystander to medical malpractice may not recover for emotional distress . . ." Id., 393. Indeed, " Maloney unequivocally stated that there is no right of action for bystander emotional distress arising from medical malpractice and based its ruling to a considerable extent on the policy implications and societal costs which could be associated with allowing such claims." Mandile v. Dziczkowski, Superior Court, judicial district of Hartford, Docket No. CV 06 5002429 (September 26, 2007, Miller, J.) [44 Conn. L. Rptr. 245].
In rejecting bystander emotional distress claims, the Maloney court identified a number of public policy concerns, including the potential for flooding the courts with relatively trivial claims as well as untangling the nettlesome issue of causation, where a plaintiff's natural grief over the loss of a loved one would need to be distinguished with the emotional distress attributable to the defendant's negligence. Specific to such claims in the medical malpractice arena, the court also articulated its concern that such actions would likely "cause hospitals . . . to curtail substantially the extent of visitation of patients" and "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." Maloney v. Conroy, supra, 208 Conn. 402-03. Put another way, the court felt that "[t]he 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." Id., 403.
In 1996, however, our Supreme Court in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996) first recognized a cause of action for bystander emotional distress by adopting the rule of reasonable foreseeability. The facts of Clohessy involved a mother and sibling seeking to recover for distress caused by witnessing the mother's other child being struck and killed by an automobile. While the court, in so doing, overruled Strazza v. McKittrick, supra, 146 Conn. 714, they also discussed Amodio and Maloney, specifically noting the problem in medical malpractice cases where there is typically "no significant observable sudden traumatic event by which the effect upon the bystander can be judged." Clohessy v. Bachelor, supra, 237 Conn. 44. Ultimately, however, the court was silent with respect to how its holding might affect bystander emotional distress actions with respect to providers of medical care and treatment and medical malpractice actions. Id. See also Meister v. Windham Community Memorial Hospital, Superior Court, judicial district of Tolland, Docket No. X07 CV 03 0082430 (April 27, 2004, Sferrazza, J.) (36 Conn. L. Rptr. 876) ("In permitting recovery for observer distress in Clohessy, our Supreme Court expressly overruled the CT Page 5682 Strazza case . . . That decision, however, omitted any such expression with regard to the Maloney holding.").
In 2003, however, the Court in Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 823 A.2d 1202 (2003) definitively rejected bystander emotional distress actions in the medical malpractice context, holding that hospitals do not owe a duty of care to third parties even when the injury alleged is foreseeable. Murillo cited Maloney favorably for the proposition that "[m]edical 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 . . . 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." (Internal quotation marks omitted.) Id., 481, citing Maloney v. Conroy, supra, 208 Conn. 403. In short, the Murillo decision cited Maloney for exactly the same policy principles that Maloney used to disallow actions for bystander emotional distress arising from medical malpractice. As a result, this court concludes that there is no cause of action for bystander emotional distress arising from medical malpractice in Connecticut.
The motion to strike counts eight and ten of the plaintiffs' second amended complaint is granted.
CONCLUSION
Finding that the operative complaint is the plaintiffs' second amended complaint dated December 7, 2007, the court denies the motion to strike counts three, four and five, and grants the motion to strike as to counts six, eight and ten.
It is so ORDERED.