Opinion
LLICV146011320S
03-06-2017
Patrick Chelstowski et al. v. Charlotte Hungerford Hospital et al
UNPUBLISHED OPINION
RULING ON MOTION FOR SUMMARY JUDGMENT
Carl J. Schuman, Judge, Superior Court.
In counts one through three of the third revised amended complaint, plaintiff Patrick Chelstowski, the administrator of the estate of Tucker Chelstowski, sues defendant Charlotte Hungerford Hospital in Torrington, as the employer of defendants Karen O'Flynn and Daniel Kelleher, both psychiatrists, and Elizabeth Tobin, a registered nurse, alleging wrongful death and medical malpractice. The basis of these counts is the claim that the defendants were negligent in discharging Tucker from the hospital's behavioral health unit and that approximately four and one-half hours later Tucker committed suicide by hanging himself. In counts four, five and six of the complaint, plaintiff Denise Chelstowski, Tucker's mother, seeks recovery for bystander emotional distress as a result of each individual defendant's actions in discharging the decedent. The defendants move for summary judgment on the bystander emotional distress counts. The court applies the standard summary judgment rules. See Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464-65, 976 A.2d 23 (2009); Practice Book § § 17-44 et seq.
In Squeo v. Norwalk Hospital Association, 316 Conn. 558, 113 A.3d 932 (2015), our Supreme Court held that, in order to recover on a bystander emotional distress claim arising in a medical malpractice case, the plaintiff must allege and prove that he or she suffers " as a direct result of contemporaneously observing gross professional negligence such that the bystander is aware, at the time, not only that the defendant's conduct is improper but also that it will likely result in the death of or serious injury to the primary victim." (Emphasis added.) Id., 580-81. In Marsala v. Yale-New Haven Hospital, Inc., 166 Conn.App. 432, 142 A.3d 316 (2016), the Appellate Court applied the contemporaneous observation requirement to affirm a trial court's decision to strike a bystander emotional distress claim that a hospital had breached its duty to a patient's relatives when it decided to change the patient's status to " Do Not Reintubate" and then removed her ventilator without the consent of the family. The court stated: " the plaintiffs do not allege in their complaint that any of them were present at the committee meeting when the Hospital made the decision to permanently remove Helen's ventilator. Also, they do not allege that any of the plaintiffs were at the Hospital when Helen's ventilator was ultimately removed and she died. In sum, the plaintiffs do not allege in their complaint that any of them witnessed the Hospital's alleged misconduct." Id., 457.
In the present case, the plaintiffs present no evidence in their affidavit or elsewhere that Denise Chelstowski (hereinafter the plaintiff) observed any part of the negligent discharge decision allegedly made by defendants Flynn or Kelleher. Quite simply, the plaintiff was not a " bystander" to this alleged negligence. Accordingly, the court grants summary judgment on counts four and five of the third amended revised complaint, which allege bystander emotional distress claims against these two defendants.
The plaintiff also alleges in her affidavit that she did confer with Nurse Tobin, apparently in person, at the time of discharge and twice shortly thereafter by telephone. In these conversations the plaintiff expressed her reservations about the decedent's discharge and her concern about his condition. Tobin allegedly attempted to reassure the plaintiff that the decedent's condition was normal given his transition from an inpatient facility to home. The plaintiff alleges, however, that she " knew [Tobin's] decision to discharge him was wrong and that Tucker was likely to injure himself again because he was so unstable." (Affidavit, paragraph 12.)
This evidence qualifies as a contemporaneous observation of alleged gross professional negligence. The court will not read the contemporaneous observation requirement so narrowly as to limit it to matters literally " observed" as opposed to information obtained through discussion with medical providers. See Marsala v. Yale-New Haven Hospital, Inc., supra, 166 Conn.App. 457 (" the plaintiffs do not allege in their complaint that any of them were present at the committee meeting when the Hospital made the decision to permanently remove Helen's ventilator"). Further, the defendants do not argue in their brief that Tobin's decision could not constitute gross negligence. That issue remains for the jury.
The defendants do argue that the plaintiff has not created a genuine factual dispute that she was " aware, at the time, not only that the defendant's conduct [was] improper but also that it will likely result in the death of or serious injury to the primary victim." Squeo v. Norwalk Hospital Association, supra, 316 Conn. 580-81. They rely on the plaintiff's statements in her affidavit, and similar statements in her deposition, that " Nurse Tobin was the professional. I relied on her opinion." (Affidavit, paragraph 15.) They also rely on the facts stated in the affidavit that, several hours after Tucker's discharge, the plaintiff left him alone in his room at home while the plaintiff picked up her younger son and some medication for Tucker. When the plaintiff returned, she discovered Tucker hanging from a tree in the back of their property.
As mentioned, however, the plaintiff has alleged in her affidavit that she " knew [Tobin's] decision to discharge him was wrong and that Tucker was likely to injure himself again because he was so unstable." (Affidavit, paragraph 12.) The plaintiff has also alleged that she would not have left the decedent alone at home if she had learned of certain additional information that the hospital allegedly did not disclose about his treatment and condition in the hospital. (Affidavit, paragraph 15.) Given this evidence, there is a genuine factual dispute as to whether the plaintiff actually felt that the discharge decision was wrong and that the decedent was likely to injure himself. It is not inconceivable that the plaintiff could rely on the opinion of a medical professional even while believing as a lay person that the opinion is wrong. Under these circumstances, that issue is one for the jury.
The court grants the summary judgment motion as to counts four and five and denies the motion as to count six.
It is so ordered.