Opinion
No. 334473
December 16, 1996
MEMORANDUM OF DECISION
The plaintiffs, Kelly and William Wildman, as Co-Administrators of the Estate of Lee Wildman, and Kelly Wildman, individually, have filed a six count amended complaint against the defendants, Connecticut Allergy and Asthma Associates, P.C., Paul M. Goldberg, M.D. and John Willis, M.D. The complaint alleges medical malpractice, bystander emotional distress, and loss of filial consortium
The plaintiffs allege the following facts in their amended complaint. The plaintiffs were the parents of Lee Wildman. In July of 1991, the defendant Goldberg began treating Lee for asthma and hypersensitivity to tree pollen. At that time, Lee was six years of age and had had a history of asthma from age two. In August 1993, Dr. Goldberg began treating Lee with an allergenic treatment to reduce his sensitivity to tree pollen. In September 1994, Dr. Goldberg prescribed allergy medicine in three different concentrations to be administered by another physician. The following month, Kelly Wildman (the plaintiff) took Lee to Dr. Willis, who injected the allergy medication which she had obtained from Dr. Goldberg. Shortly thereafter, Lee complained that he could not breathe and began to turn blue. The plaintiff returned him to Dr. Willis who attempted to resuscitate him. Lee was transported to St. Vincent's Hospital, then to Bridgeport Hospital, where he lapsed into a coma and subsequently died on October 28, 1994.
The defendant Goldberg has filed a motion to strike counts three and five of the plaintiffs' amended complaint which allege bystander emotional distress and loss of filial consortium. The defendant contends that bystander emotional distress is not recognized in the context of a medical malpractice action, and that loss of filial consortium is not recognized in Connecticut.
"`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." In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff.' (Citations omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988)." Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). "`This includes the facts necessarily implied and fairly provable under the allegations . . . . It does not include, however, the legal conclusions or opinions stated in the complaint . . . . Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 111, 585 A.2d 1263 (1991); see Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980).'" S.M.S. Textile v. Brown, Jacobson, Tillinghast, Lahan and King, P.C., 32 Conn. App. 786, 796, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Id. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems v. BOC Group, Inc., supra, 224 Conn. 215.
I
The defendant Goldberg contends that Connecticut does not recognize a cause of action based on bystander emotional distress in the context of a medical malpractice action. The plaintiff disagrees. Goldberg relies upon Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988) and Amodio v. Cunningham, supra, 182 Conn. 80, for his assertion that Connecticut does not recognize bystander emotional distress in the context of medical malpractice. The plaintiff relies on Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), in which the Connecticut Supreme Court recently recognized a cause of action in bystander emotional distress provided certain limiting elements are satisfied. "[A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she is closely related to the injury 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 of 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.
The answer to this issue is not as crystal clear as the parties would have it. On the one hand, Clohessy appears to articulate a universal test for a claim of bystander emotional distress. On the other hand, in Maloney v. Conroy, supra, 208 Conn. 393, the Supreme Court handed down a clear, "bright line" holding that "a bystander to medical malpractice may not recover for emotional distress. . . ." Although in Clohessy the court declared: "we now overrule Strazza [v. McKittrick, 146 Conn. 714, 156 A.2d 149 11959)] to the extent that it conflicts with our opinion in this case"; Clohessy v. Bachelor, supra, 237 Conn. 46; the court did not thus expressly overrule Maloney. To the contrary, the Clohessy court remarked that "[t]he problem [with a cause of action for bystander emotional distress] is compounded when the underlying act of negligence with respect to the victim is medical malpractice because there generally is no significant observable sudden traumatic event by which the effect upon the bystander can be judged." Clohessy v. Bachelor, supra, 237 Conn. 44. This observation, in and of itself, would seem to generally preclude a claim for bystander emotional distress in the medical malpractice context for failure to satisfy the second condition laid down by Clohessy for maintaining such an action: "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 . . . ." Id., 56; see Shaham v. Wheeler, Superior Court, Judicial district of Danbury, No. 321879 (June 26, 1996) ( Moraghan, J.).
In order to determine whether Clohessy overrules Maloney it is necessary to further examine the anatomy of each decision.
In Clohessy, the issue was "whether a parent and a sibling can recover damages for the emotional anguish they sustained by witnessing the parent's other young child being fatally injured as a result of an [automobile] accident caused by the negligence of the defendant." Id., 32. After stating the facts giving rise to the litigation; id., 33-34; the Supreme court reviewed Strazza v. McKittrick, supra, 146 Conn. 714, Amodio v. Cunningham, supra, 182 Conn. 80, and Maloney v. Cunningham, supra, 208 Conn. 392. See Clohessy v. Bachelor, supra, 237 Conn. 34-38. The court then discussed the two principal schools of thought that had emerged subsequent to Strazza in support of allowing bystanders a cause of action for emotional distress — "zone of danger" and reasonable foreseeability. In the context of this discussion, the court discussed the pure foreseeability rule of Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968), and the subsequent limitations imposed on that rule imposed in Thing v. La Chusa, 48 Cal.3d 644, 771 P.2d 814, 257 Cal.Rptr. 865 (1989).
The Clohessy court then stated: "Although we discussed Dillon at length in both Amodio and Maloney, in neither case did the factual scenario present the court with an opportunity to make a definitive ruling on whether to recognize a cause of action for bystander emotional distress. Central to this courts concern in Amodio and Maloney was that `the etiology of emotional disturbance is usually not readily apparent as that of a broken bone following an automobile accident . . . .' Maloney v. Conroy, supra, 208 Conn. 397. The problem is compounded when the underlying act of negligence with respect to the victim is medical malpractice because there generally is no significant observable sudden traumatic event by which the effect upon the bystander can be judged. For this precise reason most courts have recognized that a cause of action for bystander emotional distress must be confined in order to avoid limitless liability. `Without such perception, the threat of emotional injury is lessened and the justification for liability is fatally weakened.' Portee v. Jaffee, 84 N.J. 88 99, 417 A.2d 521 (1980)." Clohessy v. Bachelor, supra, 237 Conn. 44. Said the court: "This case affords us with an opportunity to reexamine this courts holding in Strazza in light of Amodio and Maloney and the law regarding bystander emotional distress that has developed over the last four decades. Strazza did not provide this court with an analysis for rejecting bystander emotional distress; rather, the court relied on the state of the law in other jurisdictions at that time in arriving at its conclusion." (Emphasis added.) Id.
The court in Clohessy proceeded to find that "a tortfeasor may owe a legal duty to a bystander" and overruled Strazza. Clohessy v. Bachelor, supra, 237 Conn. 46. The court stated that "bystander emotional distress is reasonably foreseeable," that, as a matter of public policy, "`the interest in personal emotional stability is worthy of legal protection against unreasonable conduct'" and that "`protecting these emotional interests outweighs an interest against burdening freedom of conduct by imposing a new species of negligence liability.'" Id., 46-47. "In drawing this conclusion, we have carefully weighed various public policy factors, including social and financial costs associated with recognizing this cause of action." Id., 46. The court then adopted the reasonable foreseeability rule subject to four conditions which it went on to discuss in detail. Id., 47-51.
In Maloney v. Conroy, supra, 208 Conn. 392, the plaintiff sought damages from two physicians and a hospital for severe emotional disturbance alleged to have resulted from the malpractice of the defendants in treating her mother. Id., 393. The court agreed that the plaintiff's complaint stated a cause of action for emotional disturbance under the rule of Dillon v. Legg, supra, 68 Cal.2d 728, as further liberalized in Ochoa v. Superior Court, 39 Cal.3d 159, 703 P.2d 1, 216 Cal.Rptr. 661 (1985). Maloney v. Conroy, supra, 208 Conn. 397. Nevertheless, after reviewing the recent developments in this area of the law the court stated: " Whatever may be the situation in other contexts where bystander emotional disturbance claims arise, we are convinced that, with respect to such claims arising from malpractice on another person, we should return to the position we articulated in Strazza that `there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another.' Strazza v. McKittrick, supra, [ 146 Conn.] 719." (Emphasis added.) Maloney, supra, 208 Conn. 402. But the rationale for the holding in Maloney was not a rejection of the reasonable foreseeability or zone of danger tests, nor, despite the rhetorical reference, a re-embracing of Strazza. Rather, the basis for the holding in Maloney was that court's conviction that
To allow recovery by one, like the plaintiff, who has been more or less constantly `at the bedside' of the malpractice victim during the period of treatment is likely to cause hospitals and other medical treatment facilities to curtail substantially the extent of visitation of patients that is presently permitted. Such a response by providers of medical care to the risk of liability to visitors whose sensitivity and relationship to the patient may result in emotional disturbances from observing treatment of loved ones that they view as improper would seem inevitable if such claims were to become more frequent. The restriction of current liberal practices with respect to patient visitation in order to reduce the incidence of bystander emotional disturbance claims would be a regrettable social consequence of enlarging the right to recover for emotional disturbances based upon the impact of medical malpractice upon bystanders.
Another undesirable sequel that is likely to follow upon our creation of a duty to a patient's visitors or relatives is 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. Medical 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 or from the failure to follow some notion of the visitor as to care of the patient. 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.
Obviously, if the attention of medical practitioners is properly called to some deficiency in the treatment of a patient by anyone, that circumstance may be significant in deciding whether there has been malpractice. It is, however, the consequences to the patient, and not to other persons, of deviations from the appropriate standard of medical care that should be the central concern of medical practitioners. In the case before us, if the defendants should have responded to the various requests the plaintiff alleges she made about her mother's condition, they should be held liable for the consequences of their neglect to the patient or her estate rather than to the plaintiff.
It is a fundamental assumption of jurisprudence that rules of law have an impact on the manner in which society conducts its affairs.
Id., 402-404.
For two reasons, I am persuaded that the rule in Maloney precluding bystander emotional distress claims arising out of medical malpractice survives Clohessy.
First, it is significant that while Clohessy discussed Strazza v. McKittrick, supra, 146 Conn. 714, Amodio v. Cunningham, supra, 182 Conn. 80, and Maloney v. Conroy, supra, 208 Conn. 392, the Clohessy court overruled only Strazza. The Connecticut Supreme Court knows how to overrule more than one case at a time when it chooses to do so. See, e.g., Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994); State v. Pinnock, 220 Conn. 765, 601 A.2d 521 (1992); Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 593 A.2d 498 (1991); Paulsen v. Manson, 203 Conn. 484, 525 A.2d 1315 (1987); Burger Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987); Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966); Baurer v. Devenis, 99 Conn. 203, 121 A. 566 (1923). That Maloney was not expressly overruled by Clohessy is especially telling since Maloney is of such recent vintage. Had there been a majority of the Supreme Court in Clohessy in favor of overruling Maloney, I am persuaded that the court would have done so expressly.
Secondly, Maloney is not necessarily inconsistent with Clohessy. The language of a court opinion is to be read in context; Woronecki v. Trappe, 228 Conn. 574, 581, 637 A.2d 783 (1994); Matza v. Matza, 226 Conn. 166, 187, 627 A.2d 414 (1993); Scalora v. Dattco, Inc., 39 Conn. Sup. 449, 453 (App. Sess. 1983) (Bieluch, J., with Daly and F. Hennessy, Js., concurring); and the opinion is to be read as a whole. McGaffin v. Roberts, 193 Conn. 393, 408, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1747, 84 L.Ed.2d 813 (1985); 21 C.J.S., Courts, § 175. Reading Clohessy and Maloney in this manner, it is evident that Maloney — without holding that there was or was not a cause of action for bystander emotional distress in Connecticut — culled out an exception to such a claim for medically specific policy reasons in the area of medical malpractice. Based on the doctrine of foreseeability, Clohessy held that there was a cause of action for bystander emotional distress in Connecticut, subject to four conditions. "`It is an established rule of law that a later decision overrules prior decisions which conflict with it, whether such prior decisions are mentioned and commented upon or not.' In re Lane, 58 Cal.2d 99, 105, 372 P.2d 897, 22 Cal.Rptr. 857 (1962); see Soblen Construction Co. v. Government of the Territory of the Pacific Islands, 526 F. Sup. 135, 142 (D.C. Mariana Islands 1981)." (Emphasis added.) State v. Dukes, 209 Conn. 98, 110, 547 A.2d 10 (1988). Maloney does not conflict with Clohessy. Although it may seem anomalous for an exception to be announced before the general rule is adopted, this is precisely what Maloney did. "A subsequent decision cannot, by mere implication, be held to overrule a prior case unless the principle is directly involved and the inference is clear and compelling." Cole v. Cole, 229 N.C. 757, 51 S.E.2d 491, 494-95, 6 A.L.R.2d 1335 (1949). The principle of whether a claim for bystander emotional distress could be asserted in a medical malpractice case was not directly involved in Clohessy and the text of Clohessy does not provide clear and compelling reasons for inferring that that case overruled Maloney .
It is true that among the twenty-two cases contained in a string citation in footnote 11, the Clohessy court cited Johnson v. Ruark Obstetrics and Gynecological Associates, 327 N.C. 283, 395 S.E.2d 85 (1990), a case which upheld a claim for bystander emotional distress in the context of medical malpractice. In Johnson, "[t]he central allegation of the plaintiffs' claims was that the defendants were negligent by providing Mrs. Johnson inadequate prenatal case, thereby proximately causing the stillbirth [of her child] and related injuries." Id., 395 S.E.2d 87. About seven and a half hours before the delivery, the plaintiff Barbara Johnson was told that her fetus was dead. The Supreme Court upheld the claims for emotional distress of the plaintiff parents. Id., 395 S.E.2d 98-99. (To hold that the mother was a "bystander" in such circumstances is disingenuous.) However, Johnson was cited in Clohessy, along with a series of other cases, only to identify those jurisdictions which had based a cause of action for bystander emotional distress on the doctrine of foreseeability, as opposed to the doctrine of the zone of danger. Notably, neither Johnson nor any other case upholding a claim of bystander emotional distress in the context of a medical malpractice lawsuit, was cited in the main text of the decision, and was not cited in that portion of Clohessy discussing that "the bystander emotional injury must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury . . . or by viewing the victim immediately after the injury causing event if no material change has occurred with respect to the victim's location and condition." Clohessy v. Bachelor, supra, 237 Conn. 52.
Moreover, while "[a] footnote has the same binding force and effect as the language contained in the body of the opinion"; Fuessenich v. DiNardo, 195 Conn. 144, 157 n. 8, 487 A.2d 514 (1985); the citation of a case from another jurisdiction in a footnote is often too thin a reed on which to rest an interpretation of the opinion. Compare Red Hill Coalition, Inc. v. Town Plan Zoning Commission, 212 Conn. 727, 737 n. 8, 563 A.2d 1347 (1989), refusing to follow Portage v. Kalamazoo County Road Commission 136 Mich. App. 276, 355 N.W.2d 913 (1984), and Kimberly Hills Neighborhood Assn. v. Dion, 114 Mich. App. 495, 320 N.W.2d 668 (1982), and discountenancing the broad construction of the term "natural resources" in those cases, with Paige v. Town Plan Zoning Commission, 235 Conn. 448, 459, 668 A.2d 340 (1995), citing Portage and Kimberly Hills with approval and for the proposition favoring broad policy language over narrow and restrictive definitions in the Environmental Protection Act.
"The opinions of the Supreme Court of Connecticut are binding upon the Superior Court, and the rule of the [Maloney] case is clear and explicit. Until it is reversed, changed or modified by the Supreme Court, this court must follow it." Montes v. Hartford Hospital, 26 Conn. Sup. 441, 442-443, 226 A.2d 798 (1966); see Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996) ("It is axiomatic that a trial court is bound by Supreme Court precedent."). Since Maloney has not been overruled, the plaintiff may not assert a claim for bystander emotional distress arising out of alleged acts of medical malpractice on her son. For this reason, the motion to strike the third count is granted.
II
The defendant Goldberg has also moved to strike count five on the ground that a claim of loss of filial consortium is not recognized in Connecticut. The plaintiff maintains that such a cause of action has been recognized by a number of superior courts, and thirteen other jurisdictions.
At common law there was no cause of action for damages resulting from the death of a human being. Lucier v. Hittleman, 125 Conn. 635, 636, 7 A.2d 647 (1939). In 1848, Connecticut enacted its first wrongful death statutes. Public Acts 1848, c. 5 §§ 1, 2. Today, the statutory descendant to that early law, General Statutes § 52-555, entitled "Actions for injuries resulting in death," provides: "In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, 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, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of." But under this statute, "death and its direct consequences can constitute recoverable elements of damage only if, and to the extent that, they are made so by statute." Foran v. Carangelo, supra, 153 Conn. 359. In the Foran case, minor children of the decedent brought suit alleging, inter alia, that the defendant's negligence, which caused the death of their mother, caused them to lose her care and affection. The Supreme Court held that such a claim was not within the ambit of § 52-555. The Legislature has not acted to supersede the holding in Foran.
By contrast, after the Supreme Court held in Ladd v. Douglas Trucking Co., 203 Conn. 187, 523 A.2d 1301 (1987), that there could be no recovery under § 52-555 for post-mortem loss of consortium by the spouse of a decedent, the General Assembly enacted Public Acts No. 89-148 §§ 1, 2. Those acts, now codified as General Statutes §§ 52-55a, 52-555b, recognize that a claim for post-mortem spousal lost of consortium may be asserted and legislatively overruled Ladd.
General Statutes § 52-555a, entitled "Actions for loss of consortium re death of spouse independent for determination of damages", provides: "Any claim or cause of action for loss of consortium by one spouse with respect to the death of the other spouse shall be separate from and independent of all claims or causes of action for the determination of damages with respect to such death."
General Statutes § 52-555b provides: "Actions for loss of consortium re death of spouse to be joined with all actions re death of spouse. Any claim or cause of action for loss of consortium by one spouse with respect to the death of the other spouse, which claim or cause of action may include, without limitation, claims for damages with respect to loss of the society of, affection of, moral support provided by, services provided by, sexual relations with or companionship of the other spouse, suffered because of the death of the other spouse, shall be brought with or joined with the claims and causes of action with respect to the death of the other spouse."
Since the damages which are compensable as a result of a wrongful death are purely a creation of statute, and since the Legislature has not provided that interference with the parent-child relationship by a wrongful death is compensable, the fifth count must be stricken insofar as it seeks damages for the post-mortem loss of filial consortium. See Brodski v. Leicher, Superior Court, Judicial District of Hartford-New Britain at Hartford, No. 546121 (April 26, 1996). Moreover, I agree with the majority of Superior Court decisions which have held that there is no cause of action for loss of filial consortium where serious injury, rather than death, has damaged the parent-child relationship. For this reason, the fifth count is stricken in its entirety.
Hawthorne v. Lowe, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 301393 (March 20, 1996, Levin, J.); see also Saliba v. Anto, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 327860 (March 1, 1996, Ballen, J.); Flores v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. 320203 (February 9, 1996, Moraghan, J.); Sabol v. Hallock, Superior Court, judicial district of Waterbury, Docket No. 127090 (January 17, 1996, Pellegrino, J.); Broadnax v. Ali, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 321979 (September 21, 1995, Thim, J.); Casner v. Fine, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. 462895 (May 22, 1995, Handy, J.); Kohutka v. Mazzucco, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 142751 (April 18, 1995, Lewis, J.); Urbanski v. Carabetta Enterprises, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. 463861 (August 14, 1995, Stengel, J.); Ayala v. Kochanowsky, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 544317 (January 30, 1995, Allen, S.J.R.).
In conclusion, the defendant Goldberg's motion to strike counts three and five of the plaintiffs' amended complaint is granted.
Bruce L. Levin Judge of the Superior Court