Opinion
No. FST CV 095012548 S
September 16, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #178
The plaintiffs, Agnes Squeo, in her role as fiduciary of the estate of her deceased son, Stephen J. Squeo (the decedent), and Joseph Squeo, individually, have brought this action against the defendants, the Norwalk Hospital Association (the hospital) and Deborah M. Shahid, APRN. In the operative pleading, which is the amended complaint dated May 14, 2010, the plaintiffs allege the following facts relevant to the disposition of the motion that is presently before this court. On the evening of August 14, 2007, the decedent was depressed and expressed a desire to harm himself before running out of his home with an electrical cord. Agnes Squeo then proceeded to call the Norwalk police department because she was concerned that her son may be suicidal. After attempting to evade the police, the decedent was eventually taken into custody and detained pursuant to General Statutes § 17a-503. At approximately 10:53 p.m. on the evening of August 14, 2007, the decedent was admitted to the hospital for an emergency psychiatric examination. During his stay at the hospital, the decedent was evaluated by Shahid. Between 10:00 a.m. and 10:15 a.m. on August 15, 2007, Shahid left a telephone message for the plaintiffs indicating that the decedent would soon be released from the hospital because he was not a danger to himself or others. The decedent was allowed to leave the hospital at 10:30 a.m. After walking home alone, the decedent obtained a cord and immediately hung himself from a tree in the front yard. Joseph Squeo saw the decedent hanging from a tree at approximately 11:05 a.m., and the plaintiffs attempted to assist their son. The plaintiffs then cut the decedent down from the tree and administered CPR. Despite the plaintiffs' efforts, the decedent had already suffered substantial brain injuries and he died after being taken off life support on August 23, 2007.
All references to "the plaintiffs" and "the defendants" in this memorandum of decision will refer to both of the plaintiffs and the defendants collectively. Otherwise, when necessary, the parties will occasionally be referred to separately.
The plaintiffs' two-count complaint alleges claims for medical malpractice and bystander emotional distress. In count two, the plaintiffs allege that "[a]s a result of contemporary sensory perception of observing and/or experiencing the hanging, the rescue from hanging, the administration of life support and ultimately his death, the Plaintiffs have suffered extreme, substantial, serious and permanent emotional distress." Furthermore, the plaintiffs allege that "[t]he aforementioned conduct of the Defendants and the effect of that conduct on their son including his death were a substantial factor in producing and causing the Plaintiffs' extreme, serious, substantial and severe emotional distress which was infiliated upon them by the Defendants' aforementioned conduct." ("Infiliated is the word used in the complaint, but this court reads it as inflicted.")
On May 21, 2010, the defendants filed a motion to strike count two alleging bystander emotional distress, as well as a memorandum of law in support of their motion. The defendants move to strike count two on the ground that Connecticut does not recognize a cause of action for bystander emotional distress in the context of a medical malpractice case. Moreover, the defendants contend that the plaintiffs have failed to allege sufficiently all of the elements of a bystander emotional distress claim. In response, on July 28, 2010, the plaintiffs filed a memorandum of law in opposition to the defendants' motion, to which the defendants filed a reply memorandum on August 20, 2010. This court heard argument in this matter at short calendar on August 30, 2010.
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). In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Nevertheless, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. When deciding a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "A motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Rich v. Foye, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 06 5003443 (August 28, 2006, Cremins, J.) ( 44 Conn. L. Rptr. 184, 186).
The first issue for this court to address is whether Connecticut allows for the plaintiffs to bring a cause of action for bystander emotional distress in a medical malpractice case. In their memorandum of law, the defendants cite to the Connecticut Supreme Court's holding in Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), for the proposition that such a claim is barred under the law of this state. The defendants argue that Maloney is controlling on this issue even though the Supreme Court subsequently recognized the validity of the tort of bystander emotional distress in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), which was decided after Maloney. As Clohessy did not explicitly overrule Maloney, the defendants contend that Maloney is still good law. In response, the plaintiffs argue that a bystander emotional distress claim is not rendered invalid simply by the fact that the alleged tortfeasor is a medical provider. The plaintiffs contend that so long as all four of the Clohessy elements are alleged that a claim for bystander emotional distress is legally sufficient. Furthermore, the plaintiffs argue that the broad language of Clohessy suggests that it should control over Maloney in all types of cases, including medical malpractice.
In Maloney, the Connecticut Supreme Court held that "[w]hatever may be the situation in other contexts where bystander emotional disturbance claims arise, we are convinced that, with respect to such claims arising from [medical] malpractice on another person, we should return to the position we articulated in Strazza [v. McKittrick, 146 Conn. 714, 719, 156 A.2d 149 (1959)] that `there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another.'" Maloney v. Conroy, supra, 208 Conn. 402. At the time that the Supreme Court issued its decision in Maloney, Connecticut had yet to recognize the tort of bystander emotional distress, and the court relied on its previous decision in Strazza to support its conclusion that bystander emotional distress claims were not cognizable causes of action. Eight years after Maloney, the Supreme Court issued its opinion in Clohessy, in which it recognized bystander emotional distress claims for the first time. In Clohessy, the Supreme Court stated that "we now overrule Strazza to the extent that it conflicts with our opinion in this case." Clohessy v. Bachelor, supra, 237 Conn. 46. The Supreme Court, however, did not explicitly overrule Maloney in the Clohessy opinion.
Following Clohessy, there has emerged "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.) Burnette v. Boland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010, Martin, J.). This court has already had occasion to issue an opinion on this split of authority. In 2001, this court granted a motion to strike a claim for bystander emotional distress where a father claimed that he had suffered emotional distress damages from witnessing the birth of his disabled child. 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). Nevertheless, that case presented a very different factual scenario than the present matter, in that the conduct alleged in Chavarria occurred in a hospital setting where the plaintiff father actually witnessed the medical malpractice. In the present case, the plaintiffs only observed the result of the alleged malpractice.
In Maloney, the Supreme Court upheld the trial court's decision to grant a motion to strike when the plaintiff alleged that she had suffered emotional distress while watching her mother's health slowly deteriorate in a hospital. The Supreme Court noted that two of the major reasons that it was denying recovery was that there was no sudden event that led to the plaintiff's emotional distress and the public policy concerns of allowing relatives of a patient to dictate the practices of medical professionals while at the patient's bedside. Maloney v. Conroy, supra, 208 Conn. 402-04. Neither of these considerations are relevant in the present case. The plaintiffs certainly allege that they experienced a sudden traumatic event in that they came upon the decedent hanging from a tree in their front yard. Moreover, the plaintiffs were not in the hospital with the decedent, so there was no risk of them dictating the practices of medical professionals.
It is important to note that at the time that Maloney was decided, Connecticut had not yet recognized the validity of a cause of action for bystander emotional distress. In Clohessy, the Supreme Court explicitly overruled Strazza, which largely served as the basis for Maloney. In Clohessy, the Supreme Court stated: "We believe the time is ripe to recognize a cause of action for bystander emotional distress. Under certain circumstances, which are hereinafter delineated, we conclude that 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, supra, 237 Conn. 46. This broad language suggests that the Supreme Court wanted the standards enunciated in Clohessy to govern all bystander emotional distress claims.
Furthermore, in footnote eleven, the Clohessy court cites to two cases from other jurisdictions where those courts allowed claims for bystander emotional distress in medical malpractice cases. Clohessy v. Bachelor, supra, 237 Conn. 49 n. 11. If the Supreme Court had wanted to completely bar a plaintiff from alleging bystander emotional distress in a medical malpractice case, it seems unlikely that it would have affirmatively cited to these cases. Accordingly, this court joins the other Superior Court judges who have determined that a plaintiff can state a claim for bystander emotional distress in a medical malpractice case so long as the plaintiff has satisfied the standards articulated in Clohessy and the case does not run afoul of the policy concerns raised in Maloney. See, e.g., Cordero v. American Medical Response, Superior Court, judicial district of New Haven, Docket No. CV 02 0458609 (April 23, 2004, Devlin, J.) ( 36 Conn. L. Rptr. 866, 868) ("The question is whether the policy reasons articulated in Maloney v. Conroy preclude the cause of action on the facts alleged"); McKiernan v. Komarynsky, 49 Conn.Sup. 161, 164-65, 865 A.2d 1262 [ 38 Conn. L. Rptr. 246] (2004) ("If the complaint includes the four factors in Clohessy, particularly a reference to a readily discernible event, together with the [plaintiff's] contemporaneous observation and actual perception of the event, the complaint should be construed to survive a motion to strike"); Turner v. Obstetrics Gynecology Associates of Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0169616 (September 6, 2001, D'Andrea, J.T.R.) (" Clohessy limited the rule in Maloney because, unlike in Clohessy, the Maloney decision was based on the lack of a readily discernible event as the trigger for the plaintiff's emotional distress as a bystander"); DeRosa v. Master, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99 0067788 (August 24, 2000, Nadeau, J.) ( 27 Conn. L. Rptr. 714, 715) ("when a complaint alleges a cause of action for bystander emotional distress and pleads the four conditions set forth in Clohessy v. Bachelor, supra, 237 Conn. 56, the complaint will survive a motion to strike even in the context of a medical malpractice action").
The cases in question are Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La. 1990) and Johnson v. Ruark Obstetrics Gynecology Associates, 327 N.C. 283, 395 S.E.2d 85 (1990).
Having made this determination, the issue becomes whether the plaintiffs sufficiently allege the elements of a cause of action for bystander emotional distress as articulated by the Supreme Court in Clohessy. "First . . . the bystander must be closely related to the injury victim . . . Second, the bystander's emotional injury must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury . . . Third, the injury to the victim must be substantial, resulting in either death or serious physical injury . . . Finally, the plaintiff bystander must have sustained a serious emotional injury that is, a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstance." (Citations omitted; internal quotation marks omitted.) Clohessy v. Bachelor, supra, 237 Conn. 52-54. It is clear that the plaintiffs sufficiently allege the first three elements because they are the parents of the decedent, they came upon the decedent hanging from a tree and the decedent died as a result of his injuries. In their memorandum of law, the defendants argue that the plaintiffs' allegations do not satisfy the fourth element because the alleged emotional distress is not severe enough. To support their position, the defendants cite to a series of Superior Court cases where the court granted a motion for summary judgment because there was no evidence that the plaintiffs suffered emotional injury. From these cases, the defendants conclude that "it is clear that a `severe and debilitating' emotional injury, for the purposes of Clohessy, requires an allegation and proof that the plaintiff's emotional injury necessitated clinical treatment and interfered with the plaintiff's daily activities." In response, the plaintiffs argue that Clohessy has no such requirement, and that their allegations are sufficient to withstand a motion to strike.
In Clohessy, the Supreme Court stated that the plaintiffs' injury "may be purely emotional and need not manifest itself physically . . . [A] plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiff's subjective complaints . . ." (Citation omitted; internal quotation marks omitted.) Clohessy v. Bachelor, supra, 237 Conn. 54. This quoted passage undercuts the defendants' contention that the plaintiffs need to allege that they obtained medical treatment for their injuries. Furthermore, all of the Superior Court cases relied on by the defendants were decided on summary judgment, where the court determined that the plaintiffs had not brought forth sufficient evidence to demonstrate any emotional distress. At the motion to strike stage, the sole issue is whether the plaintiffs' cause of action is sufficiently pleaded. In paragraph thirty-nine of count two, the plaintiffs allege that they "have suffered extreme, substantial, serious and permanent emotional distress." If this factual allegation is accepted by this court as true, as it must be on a motion to strike, the plaintiffs have alleged that they suffered a serious emotional injury. It is also relevant to note that the plaintiffs allege that they witnessed their son hanging from a tree and unsuccessfully attempted to revive him before he subsequently died. It would be difficult to imagine a more traumatic series of events than that allegedly experienced by the plaintiffs.
Consequently, this court determines that the plaintiffs allege all four of the elements needed to state a claim for bystander emotional distress. Therefore, this court denies the motion to strike count two.
SO ORDERED.