Opinion
No. CV 02-0465854 S
March 29, 2004
MEMORANDUM OF DECISION RE MOTION FOR PARTIAL SUMMARY JUDGMENT #138
On September 5, 2002, the plaintiffs, Theresa Warycha, individually and as the administratrix of the estate of her daughter, Brianna Warycha, and Justin Warycha through his mother Theresa Warycha, filed a revised sixteen-count complaint against the defendants, Midstate Medical Center (Midstate), Marsha Brooks, Helen Lope De Haro, Cynthia McCraven and Women's Health and Wellness Center, Inc., alleging medical malpractice.
The plaintiffs' revised complaint alleges that on or about August 8, 2000, Theresa Warycha, under the defendants' care, delivered twin children. The plaintiff alleges that the son, Justin Warycha, is alive today but suffers from cerebral palsy. The daughter, Brianna Warycha, was born without any signs of life.
In count one, Theresa Warycha alleges that as a result of Midstate's malpractice, she "lost her daughter . . . and all the benefits, joys and pleasures that would reasonably have been associated with raising and interacting with her child." In count five, she alleges a wrongful death claim against Midstate pursuant to General Statutes § 52-555.
On May 6, 2003, Midstate filed a motion for partial summary judgment as to counts one and five of the plaintiffs' revised complaint. Midstate claims that Connecticut does not permit a cause of action for loss of filial consortium, and that a cause of action for the wrongful death of a stillborn child is not legally cognizable.
On May 15, 2003, the plaintiffs filed a memorandum in opposition to Midstate's motion for partial summary judgment. On July 28, 2003, Midstate filed a supplemental memorandum in support of its motion for partial summary judgment. Neither Midstate nor the plaintiffs have submitted evidence supporting their positions.
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any [genuine issue of] material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).
As an initial matter, it is noted that a motion to strike, rather than a motion for summary judgment, is ordinarily the proper procedural vehicle for challenging the legal sufficiency of a complaint. See Practice Book § 10-39(a); see also Galgano v. Metropolitan Property Casualty Ins. Co., 64 Conn. App. 25, 27-28 n. 3, 779 A.2d 229 (2001). The Supreme Court has stated, however, that "[t]he proper way to [test] the legal sufficiency of the complaint . . . after an answer [has] been filed [is] by a motion for summary judgment . . ." Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409, 279 A.2d 540 (1971). This court has previously allowed a summary judgment motion as a means of challenging the legal sufficiency of a complaint after an answer has been filed. See Coleman v. Buono, Superior Court, judicial district of New Haven, Docket No. CV 93 0353869 (September 11, 1996, Zoarski, J.T.R.); Ballou Contracting Co. v. Khodadoust, Superior Court, judicial district of New Haven, Docket No. CV 93 0348028 (December 8, 1995, Zoarski, J.) ( 15 Conn.L.Rptr. 502). In the present case, the court entered a default against Midstate for failure to plead on November 25, 2002. Midstate subsequently filed an answer to the revised complaint on December 5, 2002. The court, under Boucher, may address the legal sufficiency of counts one and five of the revised complaint by way of Midatate's partial summary judgment motion.
Midstate argues, in its memorandum in support of its partial summary judgment motion as to count one of the revised complaint, that Connecticut does not recognize a cause of action for loss of filial consortium. In opposition, the plaintiff, Theresa Warycha, argues that count one does not set forth a cause of action for loss of filial consortium, but instead sets forth a cause of action for medical malpractice.
In Connecticut, neither the Supreme Court nor the Appellate Court has yet addressed the issue of whether a cause of action for loss of filial consortium exists. As a result, there is a split of authority within the Superior Court as to this issue, with the majority of cases holding that Connecticut does not recognize a cause of action for filial consortium.
Superior Court cases that have rejected loss of filial consortium claims include: Fischer v. Dunn, Superior Court, judicial district of Waterbury, Docket No. CV 00 0160378 (August 14, 2001, Rogers, J.); Ward v. Greene, Superior Court, complex litigation docket at Norwich, Docket No. X04 CV 99 0120118 (March 22, 2001, Koletsky, J.); Mercede v. Kessler, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0172682 (February 13, 2001, Karazin, J.) ( 29 Conn.L.Rptr. 246); Mirjavadi v. Vakilzadeh, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0166632 (Nov. 13, 2000, Lewis, J.T.R.) ( 28 Conn.L.Rptr. 524); Blanchette v. Desper, Superior Court, judicial district of Waterbury, Docket No. CV 98 0144050 (October 19, 1998, Shortall, J.) ( 23 Conn.L.Rptr. 321); Sousa v. Soares, Superior Court, judicial district of Waterbury, Docket No. CV 0137033 (August 18, 1997, Peilegrino, J.) ( 20 Conn.L.Rptr. 318).
Superior Court cases that have recognized loss of filial consortium claims include: Pacelli v. Dorr, Superior Court, judicial district of New Haven, Docket No. CV 96 0382547 (July 30, 1998, Hartmere, J.); LeBlanc v. Vitam Youth Treatment Center, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0148611 (May 9, 1997, Nadeau, J.) ( 19 Conn.L.Rptr. 485); Condon v. Guardiani, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 95 0052203 (April 16, 1996, Skolnick, J.) ( 16 Conn.L.Rptr. 466); Davis v. Davis, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 95 0077180 (March 15, 1996, Stanley, J.).
In 1998, our Supreme Court declined to recognize a cause of action for the loss of parental consortium. See Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1992). In Mendillo, a minor child brought a claim for loss of parental consortium resulting from a serious injury to the child's parent. See id., 477. Absent particular public policy considerations in favor of recovery, the court was reluctant to recognize a cause of action in tort based on third-party liability, reasoning that the scope of liability could be unlimited. See id., 482. The court further explained that with respect to a claim for filial consortium, "there is nothing in reason to differentiate the parent's loss of the joy and comfort of his child from that suffered by the child." Id., 485 n. 20. Since the release of Mendillo, the majority of Superior Court judges considering the issue have concluded that the reasoning in Mendillo weighs against recognizing a cause of action for loss of filial consortium.
See Neuhaus v. Decholnoky, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0153565 (January 20, 2000, Hickey, J.); Chetta v. Taggart, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0360104 (June 16, 1999, Skolnick, J.); Pollard v. Norwalk Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0355354 (February 18, 1999, Skolnick, J.); Accashian v. Danbury, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 97 0417228 (January 8, 1999, Hodgson, J.) ( 23 Conn.L.Rptr. 656); Blanchette v. Desper, Superior Court, judicial district of Waterbury, Docket No. CV 98 0144050 (October 19, 1998, Shortall, J.) ( 23 Conn.L.Rptr. 321); Mello v. Hammond, Superior Court, judicial district of Waterbury, Docket No. CV 97 0141746 (September 23, 1998, Gill, J.); Manville v. Rockville General Hospital, Inc., Superior Court, judicial district of Tolland at Rockville, Docket No. CV 98 0066240 (September 9, 1998, Kaplan, J.); Hurt v. Brewer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0163406 (August 28, 1998, D'Andrea, J.) ( 22 Conn.L.Rptr. 554); Rios v. Kozlowski, Superior Court, judicial district of Hartford, Docket No. CV 98 0576510 (August 24, 1998, Teller, J.) ( 22 Conn. L. Rptr. 564).
Unlike the cases following Mendillo, the present case does not involve a third party cause of action for loss of filial consortium. Rather the allegations of count one allege a cause of action for negligent infliction of emotional distress. Before reviewing the allegations in this case, however, the court finds that, a review of the principles enumerated in cases considering whether a mother may recover for emotional distress damages for the injury or death of a child resulting from medical malpractice in the prenatal and delivery periods, is particularly illuminating.
"The majority of the Superior Court cases that have considered the issue have ruled that a mother is not a bystander respecting matters that are incident to prenatal care and the delivery of her child." Patel v. Norwalk Hospital, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 98 0164457 (February 9, 2000, Lewis, J.) ( 26 Conn.L.Rptr. 444). The theory advanced by the majority is that "as the mother herself is during pregnancy and delivery in the zone of danger, a duty of proper obstetrical care is owed her during the prenatal and delivery periods." Id. "Where a child remains a part of the mother's physical being, concerns for the child's welfare during delivery procedures are concerns for the mother's well being . . . In such a circumstance . . . there are two within the zone of danger and the doctor owes a duty to each . . . [T]he plaintiff-mother [is] not a mere eyewitness or bystander to an injury caused by another but rather she [is] the one to whom a duty was directly owed by the obstetricians and the one who was directly injured by the physicians' breach of that duty." (Internal quotations marks omitted.) Johnson v. Day Kimball Hospital of Windham County, Inc., Superior Court, judicial district of Windham at Putnam, Docket No. 063592 (January 24, 2001, Foley, J.). "The very term delivery presupposes that the mother is an active participant in the birthing of a child. To hold otherwise would be to reject the entire human experience, everywhere and at all times." (Internal quotation marks omitted.) Manville v. Williams, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 97 0065055 (April 8, 1998, Sullivan, J.) ( 21 Conn.L.Rptr. 654, 656).
The court now addresses the allegations in the present case. Count one of the revised complaint alleges that: Midstate was a hospital that offered and provided medical care, treatment and advice through its agents, employees and servants; Theresa Warycha delivered twin children, Justin and Brianna Warycha; Midstate deviated from applicable standards of care by failing to recognize Brianna's presentation of fetal distress and failure to thrive, by failing to take appropriate treatment measures and by failing to obtain appropriate intervention from physicians; had Midstate not deviated from the applicable standard of care, Brianna Warycha would have been born alive; as a result of Midstate's deviation from the applicable standard of care, Theresa Warycha lost her daughter and all the benefits, joys and pleasures associated with raising and interacting with her child and further sustained the emotional pain and upset due to this loss.
Connecticut law recognizes that a plaintiff may recover for emotional distress suffered as a result of a negligent act inflicted on the plaintiff and that recovery "does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact." Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). Liability for emotional distress attaches if the defendant's conduct breached a duty of care owed to the plaintiff and if "the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [such] distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 260, 654 A.2d 748 (1995).
In viewing the allegations of the first count in their entirety, together with all reasonable inferences to be drawn therefrom, and in the light most favorable to the plaintiff, the plaintiff has pleaded a facially viable claim for negligent infliction of emotional distress. See Flory v. Henriquez, Superior Court, judicial district of Danbury, Docket No. CV 00 0340368 (May 3, 2001, White, J.); O'Sullivan v. Hofrichter, Superior Court, judicial district of Hartford, Docket No. CV 99 0591602 (June 21, 2000, Mulcahy, J.); Crawford v. Defusco, Superior Court, judicial district of Hartford, Docket No. CV 99 0586891 (May 17, 2000, Rubinow, J.); Manville v. Williams, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 97 0065055 S (April 8, 1998, Sullivan, J.) ( 21 Conn. L. Rptr. 654). Count one is not a claim for loss of filial consortium because Theresa Warycha has alleged a tort that Midstate performed on her, not on her daughter; further, she seeks damages for emotional harm she suffered, not her daughter.
In Connecticut, a spouse may bring an action for loss of consortium. See Hopson v. St. Mary's Hospital, 176 Conn. 485, 408 A.2d 260 (1979). Although it is a separate cause of action, it "is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse." (Internal quotation marks omitted.) Musorofiti v. Vlcek, 65 Conn. App. 365, 375, 783 A.2d 36, cert. denied, 258 Conn. 938, 786 A.2d 426 (2001). Likewise, a loss of filial consortium claim is a derivative claim "dependent on the legal existence of the predicate action." Id. In this regard, consortium claims are similar to bystander claims where a bystander can recover for emotional distress if he is closely related to the injured person. See Clohessy v. Bachelor, 237 Conn. 31, 52, CT Page 5051 675 A.2d 852 (1996). While consortium and bystander claims are derivative, the claim alleged here, as the plaintiff argues, is neither one because of the allegation that tortious conduct was inflicted upon the plaintiff mother. Moreover, in light of previously discussed principles, this is a situation in which the mother is not a bystander in childbirth, but rather, an active participant. All these considerations taken together weigh in favor of this court finding that a claim of negligent infliction of emotional distress has been alleged here.
Mindful of the standard governing this action, "[t]he court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). In particular, "all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002). Accordingly, the facts alleged in the revised complaint and those facts necessarily implied from the allegations are sufficient to sustain a cause of action for negligent infliction of emotional distress and that Midstate's motion for partial summary judgment on count one of the revised complaint must be denied.
Midstate also argues in its memorandum that summary judgment should be granted as to count five of the revised complaint because an action for the wrongful death of a stillborn infant is not legally cognizable. The plaintiff, as administratrix, argues, however, that count five alleges a cognizable wrongful death action on behalf of the estate of Brianna Warycha pursuant to General Statutes § 52-555.
General Statutes § 52-555 provides in relevant part: "[i]n any action surviving to or brought by an executor or administrator for injuries resulting in death . . . such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services . . ."
While there is no appellate authority on this issue, there are two superior court cases in Connecticut that have addressed specifically the issue of whether the personal representative or administrator of an estate of an unborn child who had reached viability can bring a wrongful death action: See Hatala v. Markiewicz, 26 Conn. Sup. 358, 361-62, 224 A.2d 406 (1966); Gorke v. Le Clerc, 23 Conn. Sup. 256, 262, 181 A.2d 448 (1962). In both Hatala and Gorke, the court allowed the administrator of the unborn child's estate to maintain a cause of action on behalf of the child for its injuries and death. See Hatala v. Markiewicz, supra, 26 Conn. Sup. 362; Gorke v. Le Clerc, supra, 23 Conn. Sup. 262. In particular, the Gorke court concluded that "where a fetus has reached that stage of prenatal development where it is capable of independent life apart from its mother, such a stage of development as to permit continued existence, under normal conditions, outside of the womb, if such child dies in the womb as the result of the negligence of some third person, then the personal representative of that child may, under the provisions of §§ 52-555 and 52-599 of the General Statutes, maintain a cause of action in its behalf for such injuries and death." Gorke v. Le Clerc, supra, 23 Conn. Sup. 262.
In light of these decisions, it appears that Connecticut courts are more inclined to follow the thirty-five other jurisdictions in the United States that have permitted such causes of action. See 19 Am.Jur.3d, Proof of Facts, p. 113. The majority jurisdictions allow a cause of action for the wrongful death of a viable but unborn child based on the construction of the wrongful death statutes. See id., 116. Generally, these statutes "provide a cause of action for the wrongful death of a person or individual who dies as a result of the wrongful act of another." Id. The majority jurisdictions find that a viable unborn child is a "person" or "individual" within the meaning of their wrongful death statutes, and thus, allow parties to maintain causes of action predicated on the death of a viable but unborn child. See id. "The United States Supreme Court opinion in Webster v. Reproductive Health Services [ 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989)] supports this viewpoint by recognizing that the states' compelling interest in protecting the lives of viable unborn children is expanding in favor of added protections." Id. The Supreme Court of Minnesota, the first state to recognize this cause of action, reasoned that it is "a natural extension of the rule recognizing a cause of action for prenatal injuries to children subsequently born alive . . . [and] that if an action for nonfatal prenatal injuries could be brought, then an action should be allowed if those injuries resulted in death." Id., 117; see also Verkennes v. Corniea, 229 Minn. 365, 369-70, 38 N.W.2d 838 (1949).
See Tursi v. New England Windsor Co., 19 Conn. Sup. 242, 111 A.2d 14 (1955), for a list of other reasons advanced by majority jurisdictions in sustaining a cause of action for the wrongful death of a viable but unborn child.
On the other hand, the minority jurisdictions view the construction of wrongful death statutes in a different light. In construing the wrongful death statutes, the minority jurisdictions do not consider a viable fetus a "person." See 19 Am.Jur.3d, Proof of Facts, p. 129. Alternatively, the minority jurisdictions consider damages flowing from the death of a viable fetus to be too "speculative" to permit recovery. See id.
See Tursi v. New England Windsor Co., supra, 19 Conn. Sup. 242, for a list of other reasons advanced by minority jurisdictions in denying recovery for the wrongful death of an unborn child without regard to whether or not it was viable.
The reasoning of the majority jurisdictions is more persuasive, and while the defendant urges this court to follow the minority jurisdictions that have not allowed wrongful death actions for an unborn child, this court should not depart from the cogent analysis articulated in prior decisions by our courts. As stated by another Connecticut court, "[t]o deny the [viable] infant or its representatives relief in this type of case is not only a harsh result but its effect is to do reverence to an outmoded, timeworn fiction not founded on fact and within common knowledge untrue and unjustified." Hatala v. Markiewicz, supra, 26 Conn. Sup. 360. "A rule fixing survival as the determinant rather than viability has the appeal of simplicity. It might aid the judiciary but hardly justice." Id., 362.
Midstate cites the following cases for this proposition: Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503 (1987); Stern v. Miller, 348 So.2d 303 (1977); Justus v. Atchison, 19 Cal.3d 564, 565 P.2d 122, 139 Cal.Rptr. 97 (1977); Bolin v. Wingert, 764 N.E.2d 201 (2002).
In the present case, count five of the revised complaint alleges, in relevant part, that: the action is brought pursuant to General Statutes § 52-555; Theresa Warycha was appointed administratrix of the estate of Brianna Warycha; Midstate was a hospital that offered and provided medical care, treatment and advice through its agents, employees and servants; Theresa Warycha delivered twin children, Justin and Brianna Warycha; Midstate deviated from applicable standards of care by failing to recognize Brianna's presentation of fetal distress and failure to thrive, by failing to take appropriate treatment measures and by failing to obtain appropriate intervention from physicians; had Midstate not deviated from the applicable standard of care, Brianna Warycha would have been born alive; as a result of Midstate's deviation from the applicable standard of care, Brianna Warycha lost her life; and Brianna Warycha sustained economic loss.
Because the plaintiff has pleaded the necessary elements for a wrongful death action, Midstate's partial summary judgment motion as to count five is denied.
Therefore, the motion for partial summary judgment is denied.
Howard F. Zoarski Judge Trial Referee.