Opinion
No. CV02-0458609-S
April 23, 2004
MEMORANDUM OF DECISION RE: MOTION TO STRIKE AMENDED COMPLAINT DATED OCTOBER 31, 2003 (#116)
This is a personal injury medical malpractice lawsuit arising out of the death of the plaintiff's decedent, Elvis Cordero. Mr. Cordero died on December 19, 1999 while being transported in an ambulance from his home to the hospital by the defendant, American Medical Response. The plaintiffs' revised complaint is in eight counts. The defendant has moved to strike the second count (gross negligence), fifth count (loss of a chance — gross negligence), and seventh count (bystander emotional distress).
For the reasons set forth below, the motion to strike is denied.
DISCUSSION GROSS NEGLIGENCE
The defendant argues that its motion to strike the second and fifth counts should be granted because gross negligence is not a recognized cause of action in Connecticut. In support of this claim the defendant relies on two venerable cases. See Decker v. Roberts, 125 Conn. 151, 157 (1939) (gross negligence is not recognized as a separate basis of liability in the law of torts); Dickerson v. Connecticut Co., 98 Conn. 87, 89 (1922) (rejection of classification of negligence into slight, ordinary and gross).
This straightforward argument is complicated by the likely prospect that the defendant will plead a defense based on the so-called Good Samaritan Law. General Statutes § 52-557(b). This statute provides immunity from liability for ordinary negligence for certain healthcare providers rendering emergency care. Id. The statute, however, does not provide immunity for "gross, wilful or wanton negligence." Section 52-557b(a).
The issue is whether, in a case where the Good Samaritan Law applies, the legislature has, by implication, created a cause of action for gross negligence. There appears to be no Supreme Court or Appellate Court authority on this issue and the trial court decisions are divided. Compare Shaham v. Wheeler, et al., Superior Court, judicial district of Danbury (Docket No. 321879), (Jan. 2, 1997, Moraghan, J.) (Section 52-557(b) does not alter the common law so as to create a new cause of action in gross negligence); with Polanco v. American Medical Response, Superior Court, judicial district of New Haven, Docket No. CV99-0424095S (February 23, 2000, Licari, J.) (Section 52-557(b) has at least by implication created a statutory cause of action for gross negligence).
A different approach was taken in Glorioso v. Police Department of the Town of Burlington, 48 Conn. Sup. 10, 34 Conn. L. Rptr. 472 (2003). In that case, Judge Hodgson surveyed Connecticut law and identified instances where our Supreme Court and Appellate Court had, in fact, recognized gross negligence as a heightened form of negligence. See e.g., Martin v. Brady, 261 Conn. 372, 379 (2002) (wanton, wilful, reckless and intentional misconduct is more than gross negligence); Shay v. Rossi, 253 Conn. 134, 181 (2000) (same); State v. Shabazz, 246 Conn. 746, 752-53, cert. denied, 525 U.S. 1179 (1999) (gross negligence may be asserted as an intervening cause of death in a murder case); Brzezinek v. Covenant Insurance Co., 74 Conn. App. 1, 8, cert. denied, 262 Conn. 946 (2003) (gross negligence may be a basis of a finding of constructive fraud).
In Glorioso, after determining that gross negligence exists at common law, the court concluded that the language of § 52-557b did nothing to abolish such liability. The motion to strike the plaintiff's gross negligence counts was denied.
Whether viewed as creating, by implication, a cause of action for gross negligence that does not otherwise exist, or as not abolishing such a cause of action that does exist at common law, the more persuasive view is that a plaintiff confronted with a Good Samaritan Law defense should be allowed to plead gross negligence. This is because the immunity provided by the statute is limited, and a plaintiff should be allowed to claim more than the level of negligence to which the statutory immunity applies. Glorioso v. Police Department of Town of Burlington, supra, 17. The contrary view would lead to the conclusion that by not providing immunity for gross negligence, the legislature was not providing immunity for a cause of action that did not exist anyway. A statute should not be interpreted in a manner that creates an absurd result. Commissioner of Transportation v. Kahn, 262 Conn. 257, 275 (2003).
The motion to strike the second and fifth counts is denied.
BYSTANDER EMOTIONAL DISTRESS
The defendant also moves to strike the seventh count wherein Lillian Cordero, mother of Elvis Cordero, seeks damages for bystander emotional distress. The defendant argues that a healthcare provider cannot be held liable for emotional distress suffered by a bystander where such distress arises from the facts and circumstances surrounding the defendant's alleged medical mistreatment.
The seventh count alleges the following facts.
On December 16, 1999, Elvis Cordero (Elvis) began to experience respiratory difficulty and his mother, Lillian Cordero, called AMR for emergency medical services. Lillian Cordero specifically requested an ambulance with a working inverter for Elvis' respirator. The first ambulance arrived and Elvis was put into it, but the inverter did not function. Elvis was taken back into his house and a second ambulance was called. Elvis was placed into this ambulance whose inverter worked, and the oxygen hose was connected to its outlet. Lillian Cordero was inside the ambulance at her son's side.
Enroute, Elvis' heart stopped. The AMR personnel in the back of the ambulance had fallen asleep and Lillian Cordero was unable to wake the personnel. Lillian Cordero performed cardiopulmonary resuscitation (CPR) on her son. The ambulance stopped and additional AMR personnel entered, woke up the sleeping AMR personnel, turned on the oxygen and took over performing CPR. Elvis was pronounced dead on arrival at Yale New Haven Hospital.
Lillian Cordero asserts that she suffered severe emotional distress from watching her son die under the above-described circumstances.
The defendant argues that Lillian Cordero does not have a cognizable claim for bystander emotional distress based on the holding in Maloney v. Conroy, 208 Conn. 393 (1988). In addition, the defendant further argues that her claims do not fall within Connecticut's limited recognition of bystander emotional distress in Clohessy v. Bachelor, 237 Conn. 31 (1996). The plaintiff, on the other hand, asserts that so long as the four-part test of Clohessy is met, the fact that the underlying negligence may have arisen in a medical malpractice context does not defeat a claim for bystander emotional distress.
In Maloney v. Conroy, supra, our Supreme Court, largely on policy grounds, declined to recognize a cause of action for bystander emotional distress in the medical malpractice context. Maloney v. Conroy, supra, 402. The opinion discussed the recognition of the tort by the California Supreme Court and impliedly left the door open for its recognition in Connecticut. In the end, the Court rested its decision on an older Connecticut case, Strazza v. McKittrick, 146 Conn. 714 (1959). In Clohessy v. Bachelor, our Supreme Court recognized bystander emotional distress as a cognizable cause of action in limited circumstances. Clohessy explicitly overruled Strazza v. McKittrick but did not overrule Maloney v. Conroy, Clohessy v. Bachelor, supra, 46.
The Superior Court decisions are split on the issue of whether a bystander distress claim may be raised in a medical malpractice context. See e.g., Lill v. Yale University, Superior Court judicial district of New Haven at New Haven, Docket No. CV01-0450746 (June 18, 2002, Thompson, J.) (Connecticut does not recognize a cause of action for bystander emotional distress in a medical malpractice case); Turner v. Obstetrics Gynecology Associates of Stamford, Superior Court, judicial district of Stamford, Docket No. CV98-0169616 (September 6, 2001, D'Andrea, J.T.R.) (bystander distress is recognized in medical malpractice case so long as plaintiff alleges the four factors set forth in Clohessy).
In this court's view, a more nuanced approach is appropriate in this case. That is, the fact that the case asserts medical malpractice does not alone determine whether bystander distress may be claimed. The question is whether the policy reasons articulated in Maloney v. Conroy preclude the cause of action on the facts alleged.
The Maloney opinion set forth two policy reasons in support of its conclusion that bystander emotional distress should not be recognized in medical malpractice cases. First, the plaintiff in that case had been constantly at the bedside of the malpractice victim during the period of treatment. The Supreme Court was concerned that allowing a claim of bystander distress based on a visitor observing perceived improper treatment of the patient would cause hospitals to curtail liberal practices with respect to patient visitation. Maloney v. Conroy, supra 402-03. Second, allowing claims of bystander distress by a patient's visitors or relatives would likely cause medical personnel to feel obligated to respond to every complaint of visitors concerning treatment, more for fear of stimulation of emotional disturbances than because of the merits of the complaint. Id. Such concerns could divert the attention and resources of medical practitioners from the patient to accommodate the sensitivities of others. Id. The Supreme Court viewed the recognition of bystander emotional distress to a hospital visitor as detrimental to the community as a whole. Maloney v. Conroy, supra, 404.
Unlike Maloney, the present case does not involve a hospital visitor who observed a relative's health deteriorate over time and made several requests to medical practitioners to investigate various symptoms. To the contrary, the present case involves an emergency situation where the medical practitioners allegedly failed to turn on necessary oxygen and fell asleep forcing a mother to give CPR to her son whose heart had stopped beating. Allowing a claim of bystander emotional distress in such a situation would not likely cause (1) hospitals to restrict patient visitation, nor (2) divert the attention of medical practitioners from patient care to answering uninformed complaints of visitors.
In sum, although this court finds that the policy concerns articulated in Maloney v. Conroy survive the recognition of bystander emotional distress in Clohessy v. Bachelor so as to preclude such recovery in many medical malpractice cases, those policy concerns do not apply here. Further, the court finds that the plaintiff has adequately alleged the four Clohessy factors. The motion to strike the seventh count is therefore denied.
CONCLUSION
For the reasons set forth above, the defendant's motion to strike the second, fifth and seventh counts is denied.
So Ordered at New Haven, Connecticut this 23rd day of April 2004.
Devlin, J.