Vanase v. State

Full title: GINA M. VANASE, ADMIN. ESTATE OF TODD COTE, JR. v. STATE OF CONNECTICUT

Court: Connecticut Superior Court, Judicial District of New London at New London

Date published: Feb 1, 2001

2001 Ct. Sup. 1845 (Conn. Super. Ct. 2001)

28 CLR 665

Opinion

No. CV00 0554764 S

February 1, 2001

MEMORANDUM OF DECISION RE: DEFENDANT'S MOTION TO STRIKE (#110)

HURLEY, JUDGE TRIAL REFEREE.

FACTS

This action is before the court on the defendant's motion to strike the third count of the plaintiff's amended complaint, dated August 23, 1999. The plaintiff has filed a timely motion in objection and a memorandum in support dated September 22, 2000. Oral arguments were heard on this motion on October 19, 2000.

The facts alleged in the third count of the complaint are as follows: The plaintiff, Gina Vanase, is the mother of Todd Cote Jr., a newborn baby who died on January 30, 1999, while under the care of the defendant, State of Connecticut, University of Connecticut Health Center, John Dempsey Hospital. On January 13, 1999, the plaintiff was admitted to the hospital as a pre-term gestation maternity patient. The plaintiff claims that the hospital, its employees, and agents, committed various acts of medical malpractice on Todd Cote Jr., both before and after his birth, and these acts of negligence lead to a brain injury which ultimately caused the child's death.

In the third count of the complaint, the plaintiff attempts to state a claim for bystander emotional distress. This count alleges that Todd Cote Jr. was subjected to excruciating pain and suffering which was constantly witnessed by the plaintiff. The count also alleges that the plaintiff repeatedly complained to the employees of the hospital about the inadequate care her child was receiving and about the pain both she and her child were experiencing, yet the defendant did not respond. The plaintiff further alleges that she reported decreased fetal movement to the staff on January 18, 19 and 20, 1999, and that the hospital did not act on this information. Lastly, the plaintiff alleges that the defendant was negligent because it did not act to deliver Todd Cote Jr. until fourteen hours after it was noticed there was no fetal breathing on January 21, 1999.

As a result of these actions and other alleged negligent acts that occurred after the child's birth, the plaintiff alleges that she has suffered extreme emotional distress. The plaintiff alleges that she experienced feelings of apprehension for the safety and well being of her son and herself from the time she was admitted to the hospital until the child's death seventeen days later. The plaintiff also alleges that she suffered severe emotion distress as a result of anticipating and observing the defendant's failure to adequately treat her son and as a direct result of witnessing her son's deteriorating health conditions. Lastly, the plaintiff alleges that she will never recover from the severe mental and emotional distress she suffered from witnessing the defendant's actions, her son's sickness and his ultimate death. As a result, the plaintiff claims that she has suffered an emotional injury for which she seeks damages.

DISCUSSION

"[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . ." (Citation omitted.) Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000). When ruling on a motion to strike, the court must "take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . ." (Citation omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). "What is necessarily implied [in an allegation] need not be expressly alleged." (Citation omitted.) Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Lombard v. Edward J. Peters, Jr., P.C., supra, 252 Conn. 626.

Bystander Emotional Distress

The defendant moves to strike count three of the complaint alleging that Connecticut does not recognize a cause of action for bystander emotional distress in medical malpractice actions. The defendant also argues that the factual situation asserted in this case is similar to that asserted in Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), where the Connecticut Supreme Court denied a bystander emotional distress claim in a medical malpractice case. The plaintiff argues that the decision of the Connecticut Supreme Court in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), allows an assertion of a claim for bystander emotional distress provided the pleadings allege enough facts to state a claim for which relief can be granted, as set forth inClohessy. The plaintiff further alleges that the Maloney decision was overruled by Clohessy.

This court recognizes that there is a split in authority as to whether a plaintiff can assert a cause of action for bystander emotional distress in a medical malpractice action. Drew v. The William Backus Hospital, Superior Court, judicial district of New London at New London, Docket No. 550724 (September 30, 1999, Hurley J.T.R.) (Court analyzes in detail the confusion of the trial courts regarding bystander emotional distress claims in medical malpractice actions and lists citations to a number of cases where the superior courts have both allowed a cause of action and held that there was no cause of action for bystander emotional distress in the medical malpractice context). The Connecticut Supreme Court has not addressed the issue of whether a plaintiff can assert a claim for bystander emotional distress in a medical malpractice action since its decision in Clohessy, therefore, this court is left to determine whether the Court's previous decision in Maloney v. Conroy, supra, 208 Conn. 392, governs this action. Maloney specifically held that there was no cause of action for bystander emotional distress in a medical malpractice action. Id., 402.

When the Connecticut Supreme Court decided to allow a claim for bystander emotional distress in Clohessy, the court adopted "a reasonable foreseeability test." Clohessy v. Bachelor, supra, 237 Conn. 56. Under this test, a bystander could recover if the bystander: "(1) is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury to the victim must be substantial, resulting in his or her 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." Id., 56. This court previously adopted the view that, at least in some context, a plaintiff can assert a claim for bystander emotional distress for medical malpractice under the reasonable foreseeability test articulated in Clohessy. Drew v. The William Backus Hospital, supra, Superior Court, Docket No. 550724. In Drew, this court found that a mother and father could assert a valid claim for bystander emotional distress when both parents were present to watch the negligent actions of a hospital staff that lead to their child's cardiac arrest, and recover for the emotional distress the parents suffered as they watched the hospital's unsuccessful attempts to resuscitate their child over a period of an hour and twenty minutes. Id. In that decision however, this court maintained that it would not allow recovery for bystander emotional distress in a situation like Colon v. Barczak, Superior Court, judicial district of New London at New London, Docket No. 537729 (July 17, 1997, Hurley, J.) ( 20 Conn. L. Rptr. 121). In Colon, this court held that a husband could not recover for the bystander emotional distress he claimed to experience over a period of days from watching "the deteriorating condition of his wife, and unborn child, as well as witnessing their untimely death." Id., 122.

In Clohessy, the Connecticut Supreme Court restated its concern about granting relief to a bystander in a medical malpractice action, noting that "there is generally no significant observable sudden traumatic event by which the effect upon the bystander can be judged. . . ." Clohessy v. Bachelor, supra, 237 Conn. 44. To satisfy those concerns, this court interprets Clohessy to require a plaintiff to make two allegations in order to show "contemporaneous sensory perception of the event or conduct which causes the injury" to the third party. Clohessy v. Bachelor, supra, 237 Conn. 56. First, the bystander must allege actual perception of the distinct event or conduct¹ that caused the immediate severe or life threatening harm to the third party. Second, the bystander must allege that this observation immediately caused them to suffer severe emotional distress.² See Clohessy v. Bachelor, supra, 237 Conn. 52-53. This court believes that this test is sufficient to meet the concerns of the Clohessy court with respect to the etiology of emotional injuries because it allows a bystander to recover for emotional distress, in a medical malpractice action, only where there is a sudden event or act of medical malpractice which injures a third party. This limitation also allows a trier of fact to determine whether there is an emotional injury inflicted on a bystander that is severe enough to cause continuing damage to them and, yet, is unrelated to the overall grief, loss, or pain that the bystander may feel solely because they are related to the victim and watching the victim suffer in a medical environment.³

1 This court would agree that arriving at the scene of an accident just after it occurred, but prior to a substantial change has occurred in the victim's condition or location, could qualify as a perception of the discrete event or conduct which can cause a bystander's emotional injury.

2 In a footnote, the Clohessy court stated "[w]e decline to follow Ferriter v. Daniel O'Connell's Son, Inc., 381 Mass. 507, 518-519, 413 N.E.2d 690 (1980), wherein the Massachusetts Supreme Judicial Court expanded the Dziokonski rule to include emotional distress claims predicated on viewing the injured person at the hospital rather than at the scene of the accident. . . . It is commensensical that the greater the lapse of time. the less likely it is that the plaintiff will suffer the initial shocking experience of contemporaneous observation of serious injury or grisly effects thereof. We note that Alaska has followed the Massachusetts expansion in Beck v. Dept. of Transportation Public Facilities, [ 837 P.2d 105, 110 (Alaska 1992)], where, by its "liberal interpretation of the Dillon guidelines' . . . the Alaska Supreme Court held that despite the initial viewing of her daughter on a hospital gurney, the plaintiff's "emotional shock resulted from her observation of her daughter's traumatic injuries during the continuous flow of events in the immediate aftermath of the accident, and because it cannot be said that she had time to "`steel herself' . . . . we conclude that her injury was foreseeable.'" Id., 111. (Emphasis added; italics in original.)Clohessy v. Bachelor, supra, 237 Conn. 53 n. 14.
In this footnote, the Clohessy court is implicitly saying that where there is time to recover and adjust to the defendants negligent conduct, a bystander should not be able to recover for emotional shock because of harm done to another. Therefore, this court believes that this footnote lends support to the position that the Supreme Court intended to limit recovery by bystanders, in the medical malpractice context, to those situations where a distinct injury or event occurred to a third party from which the bystander immediately suffered severe emotional distress.

3 This court recognizes that there is at least one Superior Court decision which would allow a bystander to recover for the emotional distress he experienced as a result of watching the negligent medical treatment and diagnosis of a third party which over an extended period of time. See Estate of Davis v. Yale-New Haven Hospital, Superior court, judicial district of New London at New London, Docket No. 548382 (January 27, 2000, Corradino, J.) (The court granted a motion to strike the claim for bystander emotional distress, while recognizing that plaintiff need only allege a contemporaneous observance of the actions causing the injury to the third party and emotional distress throughout the injury to state claim for relief where injury manifested itself over seven days.) This court believes that the better reasoned decisions of the superior courts limit recovery by bystanders, for emotional distress, to those situations where the bystander perceives an "event or conduct" which severely injures or kills a third party and from which the bystander immediately suffers severe emotional distress. Huhn v. Goldstone-Orly, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 352421 (February 10, 2000) ( 26 Conn.L.Rptr. 535, 537); Dujack v. Brown Williamson Tobacco Corp., Superior Court, judicial district of Windham at Putnam, Docket No. 060703 (October 1, 1997, Sferrazza, J.) ( 26 Conn. L. Rptr. 620, 623).

In this instance, the plaintiff alleges that she was the parent of the child, that the child died, and that she has suffered severe emotion injury beyond that anticipated in a disinterested witness. The plaintiff claims continuous actions of negligence by the defendant, over a seventeen day period, that led to her emotional distress, rather than one specific action or sequence of events of short duration that immediately caused her to suffer emotional distress. The plaintiff alleges that the injury she incurred resulted from the hospital's failure to diagnose the serious complications that had arisen during her pregnancy and the hospital's failure to immediately perform a caesarean section once it became apparent that the fetus was in distress.

After a review of the Court's decisions in Maloney v. Conroy, supra, 208 Conn. 392 and Amodio v. Cunningham, 182 Conn. 80, 438 A.2d 6 (1980), where the court declined to recognize an action for bystander emotional distress in a medical malpractice action, this court finds that this case is factually similar to both the Amodio and Maloney ⁴ decisions because plaintiff fails to allege a significant event or conduct leading to the plaintiff's immediate emotional distress. Therefore the court finds that this plaintiff, similar to the plaintiff's in Maloney andAmodio, fails to state a cause of action for bystander emotional distress. The court also finds that neither of the allegations in the current complaint are sufficient to satisfy the requirement of the second prong of Clohessy that requires a showing that "the bystander's emotional injury [was] caused by the contemporaneous sensory perception of the event or conduct that cause[d] the injury." Clohessy v. Bachelor, supra, 237 Conn. 53. Specifically, this court finds that the plaintiff has not alleged that she perceived a distinct event or conduct from which her child was immediately harmed. Secondly, the court finds that the plaintiff has not alleged that she suffered immediate emotional distress as a result of witnessing a discrete, insular act of negligence by the defendant. As such, the defendant's motion to strike the third count of the amended complaint is granted.⁵

4 In Clohessy, the court stated that neither the Amodio or Maloney cases factually "present[ed] the court with an opportunity to make a definitive ruling on whether to recognize a cause of action for bystander emotional distress." Clohessy v. Bachelor, supra, 237 Conn. 44. InMaloney, "the complaint did not allege that the plaintiff had suffered an injury contemporaneous with the sensory perception of the alleged negligent conduct of the defendants or that the defendants had committed any positive act impacting contemporaneously upon her . . . the alleged conduct consisted of a failure to act." Maloney v. Conroy, supra, 208 Conn. 396. In Amodio, the Court denied recovery for the bystander in part because "the injuries suffered by the plaintiff's child became manifest a considerable period of time after the alleged negligence of the defendant's occurred" even though the mother alleged that she had watched her child's condition deteriorate over a weeks period and eventually die because of the child's misdiagnoses. Amodio v. Cunningham, supra, 182 Conn. 83.
Maloney bars recovery in this instance because the plaintiff has not alleged that there was a positive action or omission of the defendant's that was contemporaneously observed and immediately caused her to immediately suffer severe emotional distress. Amodio bars recovery because the plaintiff is alleging she suffered emotional distress because the defendant failed to diagnose the injury to her child and treat it properly over a period of seventeen days.

5 In her memorandum of law, the plaintiff also asks the court to assess the third count of the complaint and determine whether it states a legally sufficient claim for negligent infliction of I emotional distress. As the plaintiff has already asserted a claim for negligence against the defendants in count two of the amended complaint and is requesting relief for emotional distress in that claim, the court will not address this argument because it is redundant.

D. Michael Hurley Judge Trial Referee